• Kashmir should join either India or Pakistan; there is no third option for independence!

    Posted by Administrator on 15/04/2013

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  • On the eve of independence (1947) the British Indian Empire (the British Raj) comprised of 17 provinces (British India) and 565 Princely States (or Native States) of drastically varying sizes all subject to the paramountcy of the British Crown. Of the 565 Princely States only 21 had government structures; of which only 4 had considerable territory and direct relations with the Governor General. Approximately 400 or so States were influenced through Agents (or political officers) answerable to the governments of the Provinces (British India) within which they were geographically subsumed. This arrangement was one of direct and indirect rule. Following the end of colonial rule, the Princely States were thus required to accede either to the Union of India or the Dominion of Pakistan; the criteria being adjudged in religious and geographical terms; (the first, majority Muslim or Hindu areas were required to accede to either Muslim Pakistan or Hindu India, the former purportedly a Muslim polity the latter a secular one; the second, areas geographically contiguous to either India or Pakistan were required to join either of the respective countries). Accessions either way ultimately rested on the rulers of the Princely States. The departing colonial government of British India did not politically or legally countenance independence as a third option for any of the Princely States whatever the political ambitions of their individual rulers. And although it was quite ambivalent in how it expressed this position, it was clearly understood by the rulers themselves that they were required to accede to either India or Pakistan which may account for the fact that all but three rulers immediately signed instruments of accession.

    We pose the following consideration.

    Whatever the unsatisfactory nature of the partition plan which owes much to the colonial nature of politics of the day, it is simply ahistorical for advocates of an independent Kashmir to argue that the princely State of Jammu and Kashmir should have assumed sovereignty on its own accord outside the legal parameters of the Legal Instrument that created both the Union of India and the Dominion of Pakistan.

    The fact that ‘Kashmir State’ was a colonial product underpinned by sovereignty explicitly conferred on it by the British Indian Empire; its very existence created by the Treaty of Transfer of 1846 (another colonial legal instrument) meant that on the termination of the Crown’s Paramountcy, existing princely States would have no choice but to accede to either the Union of India or the Dominion of Pakistan, two sovereign successor dominions created by an Act of Parliament of the UK Government, receiving royal assent on the 18th of July 1947 and from which sovereignty was duly and permanently passed from the British Indian Empire to their newly formed national legislative authorities.

    Whether the princely State’s accession to India was lawful given the criteria employed to adduce the decision is therefore a legal one, and one that necessarily excludes non-parties to the transfer, ironically even legitimate representatives of the peoples of the erstwhile princely State of Jammu and Kashmir for the sole purpose of seeking independence. The fact that the British Indian Empire was non-democratic makes any such considerations superfluous to the actual processes involved in the creation of subsequent territorial-cum-sovereign entities. On this reading of history, the State of Jammu and Kashmir should have been transferred to Pakistan given its majority Muslim population and its geographical contiguity. However, the fact that the ruler acceded to India aside from technical debates on the validity of the actual accession means that the State should be recognised as forming part of India territorially.

    Sentiments and sensibilities aside, the legal considerations involved in the whole Kashmir debacle are straightforward and perhaps expose the inadequacy of legal processes of solving the current conflict between India and Pakistan. However unsatisfactory and disenfranchising, one cannot rewrite the history of the Partition of India and so one must accept the historical developments that resulted in the State’s accession to India. Pakistan’s role thereafter can be seen in a negative light and essentially as one destabilising the entire region; the murky involvement of the ISI has been disastrious for ordinary Kashmiris on either side of the LOC. 

    The fact that India voluntarily internationalised the conflict subsequently by referring the matter to the United Nations means that the peoples of Jammu and Kashmir were made a party to the conflict, their collective will to be determined through a plebiscite at a given future date but even on this account there is no third option for independence. India has unfortunately reneged on its promise and blighted its administered-regions with unruly military outfits that have committed some of the worst human rights violations in the entire country; many of which are beyond scrutiny and thus legal prosecutions. Many Kashmiris in the Valley have therefore sought a future outside the dehumanising clutches of India but even these do not advocate union with Pakistan but rather independence.

    Would this be a fair assessment of the facts? Or is this merely a simplistic and perhaps biased recounting of complex facts?

    Please discuss the issues within the limits of proper comportment; extending respect and courtesy to those whose views you may not necessarily agree with. Offensive and hate-filled comments (normally reflective of intellectually-challenged people) will be deleted.

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