Legality of the Accession of Kashmir

1. The State of Jammu and Kashmir acceded to the dominion of India on the 26th October 1947. The accession took place under the provisions of the Constitution of India as in force on 15th August, 1947 i.e., the Government of India Act 1935 as adopted under provisions of the Indian Independence Act 1947 both of which were enactments of the British Parliament. The provision was that, "… An Indian State shall be deemed to have acceded to the dominion, if the Governor General had signified his acceptance of an instrument of accession executed by the ruler thereof…". Consequently, when the ruler of Kashmir executed the Instrument of Accession (26 October, 1947) and Lord Mountbatten, the then Governor General, accepted the Instrument (27 October 1947), the whole of Kashmir became an integral part of India.

2. Since, the Act was enacted by the British Parliament to create the Dominions of India and Pakistan, it cannot be questioned either by India, Pakistan or the United Kingdom, parties to the agreement.

3. There is no doubt that the Government of the Maharaja of Kashmir was recognised by Pakistan. It was with this Government that Pakistan signed a Standstill Agreement by the exchange of telegrams on August 12 and 16, 1947. At that time the Pakistan Government did not question the validity of the Agreement with the Government of Maharaja of Kashmir.

4. That India's rights as well as its duties with regard to Jammu and Kashmir flowed from the fact of accession was recognised from the beginning. Thus, on February 4th 1948, speaking during the 240th meeting of the Security Council, Mr. Warren Austin, the representative of the United States, stated, "the external sovereignty of Jammu and Kashmir is no longer under the Maharaja. With the accession of Jammu and Kashmir with India, this sovereignty went over to India and is exercised by India."

5. It is significant that the legality of the accession has never been questioned either by the Security Council or by the United Nations Commissions for India and Pakistan (UNCIP). On the contrary, the UNCIP, at the question of accession examined by their legal adviser, found that it was legal and authentic and could not be questioned. This fact clearly influenced the proposals made by the UNCIP. The most significant recognition of India's legal status in Kashmir was contained in the Commission's reply to protests from the Pakistan Government against the decision of the Indian Constituent Assembly to reserve four seats for the representatives of Jammu and Kashmir. The Commission declined to take up this matter and observed, "In the Commission's view, it is difficult to oppose this measure of the Indian Government on purely legal grounds, " (S/1430 Para 37).

6. An essential attribute of sovereignty is the right to maintain an army for national security. Pakistan was not authorised to maintain any armed forces in Kashmir under the Security Council resolutions of January 17th , 1948 and the UNCIP resolutions of August 13th 1948 and January 5th 1949. The two latter resolutions placed an obligation on the Government of Pakistan to withdraw its forces completely from Kashmir. On the other hand, there has always been recognition of the rights and obligations of the Government of India to maintain a sufficient force "for the support of the civil power in the maintenance of law and order." Thus, the UNCIP not only recognised the right of India to retain her troops in Jammu and Kashmir in sufficient numbers consistent with the security of the State but also recognised the responsibility of India for the maintenance of law and order throughout the State including those parts that were to be evacuated by the Pakistani forces.

7. It is important that at no time during the history of the issue was Pakistan recognised as having any status other than that of an aggressor in Kashmir. Pakistan has often quoted the UNCIP resolutions of 13th August and 5th January 1949 to establish her locus standi in Kashmir but the resolutions, while imposing on Pakistan an unconditional obligation to withdraw her forces from Kashmir, exclude her from all operations under the resolutions. That Pakistan was only an aggressor and had no responsibility other than to evacuate her aggression was explicitly stated by the Commission. In the matter of two repatriation commissions to be appointed to help the citizens of the State to return and take part in the plebiscite, the Commission assured India that "It was not the Commission's intentions that the Pakistan Commission should operate outside Pakistan. Thus, the Pakistan Commission would not operate in the territory referred to in article A-3 of Part II of the resolution of 13th August 1948." (i.e., the territories evacuated by Pakistan troops (S/11196 Annex. 4 of Aide Memoire No. 1)).