Defending India’s position on Kashmir : VK Krishna Menon at the United Nations

Many articles have been written defending India’s position on Kashmir by scholars and intellectuals over the years. These have suddenly found a lot of traction again in the aftermath of the Aug 5th, 2019 decision taken by the Indian Government for the revocation of Article 370, which effectively ended Jammu & Kashmir’s special status and brought it at par with the rest of the States and Union Territories of the Indian Union.

However, I still feel that one piece of history which doesn’t get quoted often enough in this context was VK Krishna Menon’s speeches at the United Nations(henceforth referred to as UN) defending India’s position on Kashmir. The one which for me stands out as his best was the marathon speeches he gave at the UN on the 23rd/24th of January 1957. Thanks to the internet the transcripts of the speeches are now available for posterity.

Now, VK Krishna Menon has left behind a controversial legacy as the latest book by Jairam Ramesh “A Chequered Brilliance: The Many Lives of V.K. Krishna Menon” has even suggested. He will mostly be remembered for his disastrous stint as Defense minister which would eventually lead to the humiliation of the 1962 war with China.

That aside, it is important to read Krishna Menon’s speech which brings closure to a lot of questions that have troubled a lot of Indians regarding its position on Kashmir. A caveat here is that the speech was delivered in 1957, thus it does not account for a lot of things that have happened in Kashmir since then. This context is very important as I have tried my best to break down the arguments defending India’s position in Kashmir.

Issue was Aggression, not Dispute over Territory

India went to the UN and not Pakistan, though this has given a lot of heartburn to most Indians, who have rued this decision of taking the matter to the UN. It is important to understand why India went to the UN in the first place. Firstly, the decision was taken on 1st January 1948, after the Maharaja of Kashmir Hari Singh had already acceded to India the entire erstwhile princely state of Jammu and Kashmir on 26th/27th October 1947. Following which the Princely state had legally and for all practical purposes become a part of India, meanwhile the State had been invaded by raiders from Pakistan who had started capturing territories in Kashmir and were marching towards Srinagar. Thus, India’s decision was taken to protest the invasion of Indian territory and violation of Indian sovereignty. It was never meant to be a dispute over territory. Pakistan had no claims on Kashmir. Now, could India have continued fighting the Pakistani raiders and army in Kashmir without taking the matter to the UN? Yes! , however, it needs to be also understood that the supply lines to the invaders in Kashmir were being fed from Pakistani Punjab and North West Frontier Province in Pakistan, and to disrupt these supply lines India would have had no option but to launch an all-out attack on Pakistani Punjab and declare war on Pakistan. Given the partition violence which had consumed Punjab, India decided certainly on humanitarian grounds against launching an invasion of Pakistan which would have further exacerbated the bloodshed. Thus, deciding to protest the Pakistani invasion of Indian territory.

India is the successor state to British India & Doctrine of Paramountcy

It is also argued that India got its independence through an act of the British Parliament which was the Indian Independence Act of 1947 by which India was created as a self-governing Dominion and a successor state to British India. Therefore, with regards to admission to the UN, India did not have to be admitted anew, as Independent India came into the UN as the successor state to India which signed the covenant the League of Nations. This is important to note as the relations between the British Crown and the Princely states were governed by the doctrine of Paramountcy, which again was a relation between the British crown and the Princes ruling these Princely states. These princely states had at no time any independence or sovereignty that would have enabled them to become members of the UN as independent nations.

Therefore, under the Doctrine of Paramountcy when India gained Independence from the British crown, it also ended the effective control the British crown had over the Princely states and Independent India being the successor of British India, replaced the British crown in its sovereignty over the Princely states. Now, one might argue with this statement, However, it proves that at no point was Kashmir an Independent country as it had no international status, nor could it declare independence after 1947 for the same reasons.

Misquotations by Pakistan

Pakistan at the UN referred to a statement by Lord Louis Mountbatten made on 25th July 1947 which stated that in deciding the question of accession, the princely states must pay due regard to the communal composition, the wishes of their peoples, and the geographical location of their States.

India refuted that such a statement was ever made which emphasized the communal composition to be considered for deciding the fate of the princely states. The Princely States were free to choose to join either dominion, however, geographical compulsions could not be evaded. Which in sense meant that there had to be geographical contiguity. Which supports India’s claim on Kashmir as it had geographical contiguity with India and in a similar sense also weakens Pakistan’s position on Junagarh as it did not have geographical contiguity with Pakistan.

Standstill Agreements

It should be noted that Kashmir did offer a standstill agreement to both India and Pakistan, which Kashmir did agree and sign with Pakistan but did not sign with India. Now, it is alleged that India refused to sign the standstill agreement, however, a look at the communication between the Prime minister of Kashmir and the Prime minister of India would indicate that both parties were interested in negotiating and signing a standstill agreement as highlighted by this telegram by the Indian government to the Kashmir state.

“Government of India would be glad if you or some other Minister duly authorized in this behalf could fly Delhi for negotiating standstill agreement between Kashmir Government and Indian Dominion. Early action desirable to maintain intact existing agreements and administrative arrangements.”

However before the standstill agreement could be negotiated and signed, Kashmir was invaded by the raiders from Pakistan. The chronology of aggression here is important as while Pakistan telegraphed that it had agreed to a standstill agreement and only a few days later the chief of staff of Jammu & Kashmir forces Major General Scott, submitted his first report to his government highlighting the border raids from the Pakistani side. Thus the invasion of Kashmir by Pakistani forces had begun and was followed by regular incursions into Kashmir throughout Sept’1947 with regular protests raised by the Kashmir government against the aggression. Pakistan would then even cut off supplies of petrol, salt, and kerosene oil to Kashmir.

By Oct’1947 the invaders were marching towards Srinagar to capture the capital. The head of the Kashmir state, Maharaja Hari Singh thus appealed to the Indian government for military help on the 24th of Oct 1947, Now whether you like the Maharaja or not, that is secondary but it is true that as Head of the state, He alone had the right to make such an appeal and sign the accession to India. Lord Mountbatten, on behalf of the Government of India, told the Maharaja of Kashmir, “You will accede to Pakistan if you wish and we will not take it as an unfriendly act”. The Maharaja wasn’t coerced into acceding to India. Thus came the accession to India on the 26th Oct 1947

The Brigandage, rapine, and plunder of Kashmir by the Invaders

Also, one argument made is that the Pakistani invaders were somehow liberators who had come to free Kashmir of Maharaja’s rule or even for that matter India’s rule. However, the facts on the ground present a completely different picture. It was well documented at the time that the invaders or raiders from Pakistan carried mass loot, plunder, and murder on their route to Baramulla which is only 50 Km from Srinagar. If Kashmir was aligned with Pakistan through blood, religion, and kinship the mass plunder, killings, and burning of villages was hardly the way to show that kinship. Thus it can be established that the raiders from Pakistan were indeed invaders into Kashmir and not liberators.

Pakistan Army Support to the Aggression

When finally India took the matter to the UN on 1st of Jan 1948, Pakistan issued a statement on 15th Jan 1948 and it said the Pakistan Government “emphatically deny that they are giving aid and assistance to the so-called invaders or have committed any act of aggression against India.”

Now, this is also false and Pakistan lied about its involvement in the invasion of Kashmir. One cannot fathom that the Raiders marched across the breadth of Pakistan from the North West Frontier Province and into Kashmir without any support from the Pakistani state, as we now know the Pakistani state was directly involved and the volunteer raider army also included members of the Pakistani army. Thus, it is quite unfortunate that it was the Pakistani invasion with the active support of the Pakistani state and Army that Kashmir was invaded and which would eventually spiral into the events that would follow. One can always wonder in retrospect what would have happened had the invasion not happened.

Conditions for a Plebiscite

On 13th August 1948 by the UN security council passed a resolution that has formed the basis of the whole Kashmir issue since. It clearly states the conditions by which the issue is to be resolved. The statement is widely available on the internet and I would suggest all read it.

The resolution is broken down into 3 parts, Part I is the Cease-Fire Order calling for an immediate end to the hostilities between the 2 armies.

Part II deals with the Truce agreement which involved the withdrawal of troops

Part III reaffirms the wishes of both governments that the future of the Kashmir state “shall” be determined in accordance with the will of the people and an agreement should be reached by which fair and equitable conditions can be created whereby such free expression will be assured.

Now, Part II of the resolution is probably the most interesting of all, as it is further divided into 3 sections A, B & C.

Section A clearly stated “As the presence of troops of Pakistan in the territory of the State of Jammu and Kashmir constitutes a material change in the situation since it was represented by the Government of Pakistan before the Security Council, the Government of Pakistan agrees to withdraw its troops from that State”

Needless to say, Pakistan never withdrew its troops, therefore when the conditions of the Truce agreement were never fulfilled by Pakistan, Part III of the resolution cannot be implemented. There is a clear chronology that needs to be followed, Part III cannot precede Part II, failure to implement Part II makes the resolution null and void.

It should also be noted that while the resolution was passed on13th Aug 1948, Pakistan rejected the resolution and continued fighting, it was only when the military balanced changed and started to favor the Indian army did Pakistan finally agreed to the UN resolutions on the 5th of Jan 1949. Therefore, when the offer first came and the Pakistani’s rejected it, it only stands to reason that the resolution lapsed immediately.

Northern Territories

Another often forgotten aspect of the entire debate is what happened in Gilgit Baltistan. We often forget that Skardu (Capital of Baltistan) was under Indian control until Aug 1948 till it finally fell to the Pakistan army. This is a territory that legally belongs to India as per the accession of Kashmir state, but was captured by Pakistan with the help of British officers and has been under the illegal occupation of Pakistan ever since.

Rejection of the “Two-Nation Theory”

Another main argument made by India was its refusal to accept the “Two-Nation Theory”. India is a secular republic that gives equal rights to Hindus, Muslims, Christians, Buddhists, etc. Therefore, India refuses to accept the thesis that because the population of a particular area is of one religion, that should have political implications. India is not a theocracy; but a modern, Secular State, where the right of citizenship is based on residence, upon domicile, and upon loyalty to the Constitution. If the religious argument was to be extended, West Pakistan which had proximity to Kashmir had a population of 30 million Muslims, which was far less than the over 50 million Muslims who decided to stay back in India. Therefore, India had more Muslims in India than in West Pakistan, which was further proof that the Two-Nation Theory did not hold water in the context of India as it had always defined itself as a Secular State. Kashmir has been ruled by Hindu Kings, Muslims Kings, Sikh Kings, Afghans, and all kinds of people, but there was never any ambiguity that it has always been a part of the Indian Mainland.

No Right of Secession in a Federation

Another basis for India’s position at the UN was that the accession of Jammu and Kashmir to India was absolute and complete and there was no right reserved for secession. India is a Federation and not a confederation. Thus, the accession when it was signed was absolute, giving no provision to the acceding states to secede from the Indian Union at a future date. India being a democracy gives enough freedoms and rights to individual states as far as autonomy is concerned thus the democratic framework ensures that the needs of a constituent unit of the federation have its needs and aspirations met. This is something that has been ensured as Kashmiris are full citizens of India and can form their state government and get elected to the Indian parliament.

Consulting the Wishes of the People

So what does one make of the letter written by Mountbatten to the Maharaja about consulting the wishes of people?

Here again, there needs to be a clear distinction between the letter by Mountbatten and Instrument of Accession, which are 2 separate documents and are not linked. The accession was complete and final, which integrated Kashmir with India, The letter by Mountbatten expresses the wish of the Government of India — not as part of the law, but as a part of political policy to consult the people. Consulting the wishes of the people can be done in different ways but the letter doesn’t explicitly use the word Plebiscite.

This is where the constituent assembly of India comes into the picture. There was indeed a popular national movement in Kashmir lead by ordinary Kashmiris with their leader Sheikh Abdullah. Thus, after the accession of Kashmir and Pakistan’s refusal to vacate the occupied territories. India decided to go ahead with forming the Constituent Assembly of Jammu & Kashmir elected by the people which would later ratify the accession of Jammu & Kashmir to India.

Sheikh Abdullah’s Statement on Accession

This then brings us to the statements made by Sheikh Abdullah about the accession to India. These are also important as he was the most popular leader in Kashmir and commanded the respect of all Kashmiris especially the majority of the Muslims in the Kashmir valley. He would go on to say that the accession of Kashmir to India is built on India’s commitment to Democracy and Secularism where all people irrespective of their faith will be treated equally. India with its commitment to socialism and democracy would eventually lead to the economic emancipation of the poorest of people. Pakistan on the other hand represented the wishes of the feudal landlords. Additionally, if Kashmir had acceded to Pakistan, it would have adversely affected the minorities in Kashmir. As at the time of partition, Kashmir had a population of 4 million among whom about 1 million were non-Muslims. Thus, It made more sense to accede to India and being part of a Democratic & Secular republic.

What we know in Hindsight

Now, since VK Krishna Menon gave those rousing speeches at the UN over 64 years ago, a lot of water has flown under the bridge. We have seen Pakistan break up, which further destroyed the thesis of a “Two-Nation Theory” over which that country was created and since claimed Kashmir as well. We have also seen a rise in terrorism and insurgency in Kashmir which has led to a lot of pain for the ordinary people, thousands of lives have been lost and an entire community of Kashmiri pandits was forced to flee the Kashmir valley which had been their home for centuries. Not to absolve the incompetent successive governments of India and J&K for their complete mismanagement of the affairs of Kashmir. Not to be left behind, Pakistan with their continued support for terrorist organizations and waging of a proxy war in Kashmir have ensured that the solution to the Kashmir dispute is nowhere in sight.

To add to the problem, we have seen Pakistan apportion a part of Kashmir called the Shaksgam valley to China as part of a border agreement with them in 1963, something which India does not recognize to this day. The continued Chinese occupation of Aksai Chin which is also a part of the much larger Kashmir state and finally the demographic changes which have taken place in Gilgit Baltistan since the 1948 has well and truly ensured that the UN security council resolutions are almost impossible to implement.

So, Do I have a solution for the Kashmir problem?

NO!- That wasn’t the intention of the article as well.

However, the arguments made by VK Krishna Menon certainly gives context to the Indian position on Kashmir and clear a lot of fallacies around the Pakistani argument and illegality of the Pakistani claims.

As Indians, we do need to set our own house in order and improve the conditions in Kashmir, incompetence on part of successive Indian governments does not help.

A Peaceful Kashmir is truly what is needed.