Kashmir

Location: Extreme north of the Indo-Pakistan Sub Continent and at the southern point of Central Asia. A Line of Control between India and Pakistan has divided Kashmir into two parts. Azad Kashmir consisting of the Liberated portion of the territory and the Indian held Kashmir (IHK) which comprises 63% of the whole territory and includes the Kashmir Valley, Jammu and Laddakh Regions.

Area: 86,000 square miles.
Population: Currently estimated at over 12 million out of which around 7.8 million reside in the IHK. Over 1.5 million Kashmiri refugees, who were forced to leave their homes in IHK,because of ethnic cleansing by the Indian Security Forces, are living in makeshift camps in Azad Kashmir and Pakistan.
According to the 1941 census, Jammu & Kashmir had a total population of 4,022,000, out of which 300,000 (over 75 %) were Muslims.
The percentage of Muslim population has since been decreasing. In 1951, the Muslim population of IHK was 2,277,694 (70 %),

In 1961, 2,432,067 (68.3 %) , in 1971 3,040,130 (65.8 %) and 3,843,451( 64.2 %) in 1981. The figures of the 1991 census have not yet been reported due to the disturbed conditions. The decline in percentage is attributed to the genocide of Muslim Kashmiris by the Indian Securitry Forces and a planned relocation of Hindu population to the area by the Indian Government, with the aim of altering the demographic profile of the area.

The Dispute: The Muslim Nawab of Junagadh, announced his decision, contrary to the wishes of his subjects who were predominantly Hindu, to accede to Pakistan. When Pakistan notified India that it had accepted the accession, India protested on the legal grounds that a Muslim ruler could not decide the accession of his state contrary to the expressed will of his Hindu subjects. Instead, India advocated the alternative rule, that the people of the princely states had the inherent right to express their preference for the country they wished to join. The Indian army subsequently entered Junagadh, and a referendum was held. As expected, the people of Junagadh overwhelmingly voted for India. India thereby established the principle that, in the case of a conflict between the people and the ruler of a princely state, the people, not the ruler, had the right to choose accession.

Using the Junagarh principle, the Indians invaded the State of Hyderabad (Deccan) on13 September 1948 and forced the 62 years old Muslim Ruler and his small ill-equipped Army to surrender.

The legal debate surrounding the question of accession acquired new complexity when the population of Jammu and Kashmir revolted against the Maharaja and asked for accession to Pakistan. The Kashmiri’s appeal for help prompted Pathan Tribesmen to come to the aid of their Kashmiri brothers. Fearing the imminent fall of Srinagar, the capital of Kashmir, the Maharajah requested immediate assistance from India to counter the threat. India agreed to help but in return asked for the State’s accession to India. The Maharajah hesitated, but relenting under pressure, requested provisional accession. India accepted the request contrary to its previous position established on the Junagarh case, that the ruler had no legal standing to decide the question of accession in contravention to the people’s desire.

History is witness to the fact that India sent its forces into Kashmir before the Maharaja signed the accession document. An infantry battalion and a mountain battery of artillery from the Patiala Forces had been stationed in Jammu and Srinagar respectively, by the first week of October 1947, whereas the Maharaja signed the so-called Instrument of Accession on 26 October 1947. This fact nullifies the Indian claim that it sent its forces to protect Indian Territory from aggression. More Indian forces reached Srinagar on the morning of 27 October 1947. The Pakistan Army entered Kashmir in May 1948 to stop the Indian thrust aimed at occupying areas liberated by the peoples revolt against the Maharaja.

In accepting the accession of the Maharajah, Lord Mountbatten, the last British Viceroy and the First Governor General of India, referred to the ‘special circumstances’ and added that ‘as soon as law and order have been restored, the question of the State’s accession should be settled by a reference to the people’. Accordingly, Mountbatten maintained ‘that in the case of any state where the issue of accession has been the subject of dispute, the question of accession should be decided in accordance with the wishes of the people of the state’. These statements were avidly reinforced by India’s first Prime Minister Pandit Jawaharlal Nehru who said, ’We have declared that he fate of Kashmir is ultimately to be decided by the people. That pledge we have given, and the Maharaja has supported it, not only to the people of Jammu and Kashmir, but also to the world. We will not and connot back out of it’.

In total perspective, India’s policies toward Junagadh, Hyderabad, Jammu and Kashmir, were legally and morally inconsistent. In Junagadh for example, the referendum for accession underscored the principle of restrictive self-determination. In Jammu and Kashmir, the Maharaja’s accession furnished India with a so-called legal basis to defend the State. In Hyderabad, where no official referendum was held and where the ruler did not accede, the forced accession to India brought about by military action, was presumed to have the tacit approval of the predominantly Hindu population. In each case of annexation there was a different rationale, but a similar goal, namely annexation of territory. The use of military force provided the only consistency in India’s policy.