Col Ajay K Raina, SM
It was a set of two sheets, and two signatories to the content had signed on two different dates due to the geographical separation involved. Many more copies of the document had been signed too by many others too. This is how the narrative about the Instrument of Accession (IOA) signed by Maharaja Hari Singh and Lord Mountbatten could possibly have been written, filed and entrusted to history. However, it was not to be! Not many documents signed in the 20th Century can boast of the number of debates and controversies garnered by that IOA signed on 26 October at Jammu and on 27 October 1947 at Delhi.
A well-oiled machinery of India baiters has been at it for seven-odd decades now. Claims like ‘it was never signed’ or ‘it was not signed before the landing of Indian troops at Srinagar on 27 October’ or ‘the Maharaja signed it under duress’ etc have been made, despite the inherent flaws and absurdity enshrined in such claims. Most of such claims have failed to cut ice at the forums wherever these have been presented, but many innocuously credulous ears have fallen prey to such narratives. No wonder then that many in Kashmir swear by such claims, treating such narratives as gospels.
There is one particular claim that is favourite of Pakistani diplomats when it comes to speaking about Kashmir at the UN. It is a favourite one because they try and back it up with some high-sounding legal terminology as it pertains to international relations and treaties. The signing of IOA, certainly, was a foreign policy decision between two independent entities based out of Srinagar and Delhi and this fact is cited while making the claim. And as per this particular claim, Maharaja Hari Singh had lost the legal authority to sign a foreign relations treaty because of a ‘revolt’ that was happening in the State at that moment. The advocates of this claim refer to problems in Poonch and declaration of Azad Kashmir Government on 24 October 1947. Basing their argument on the interpretation of international laws, Pakistani diplomats and writers and few western authors challenge the sanctity of the IOA.
Let’s first examine whether the Maharaja owned the legal right to accede to India under the circumstances or otherwise. In a different context, such a question wouldn’t have arisen in the first place. As the legitimate ruler of the Princely State, the Maharaja had all the rights to deal with foreign relations and execute agreements and treaties as deemed fit by him. However, Pakistanis emphasise that the situation in the State had reached a point where the Maharaja had no control left to tackle it and, hence, had become ineffective. To analyse this claim, let’s take a look at the internationally accepted norms that define the legitimacy of any government/party staking claim of having formed a new government in a country (the example of the latter is the Taliban in Afghanistan).
The foremost parameter of the international valuation is about the degree of control that a government may have over its populace and geographical territory; complete or a significant part of the population and territory must be under its control. The second criterion is the likelihood of such a government sustaining itself and staying in power in the foreseeable future. Finally, the third and last parameter is about the authority of such a government remaining subordinate only to international laws and no other government or organisation.
Since the matter pertains to the first half of the previous century, it would be apt to examine a few precedences to test the validity of Maharaja Hari Singh’s government. The Russians absorbed the present-day Republic of Finland in their empire in 1807. Then in 1917, Finland declared independence immediately after the Russian Revolution. However, there was a sizeable pro-Russian population living inside Finland, and an uprising took place against thenew government. There was utter chaos and disorder in Finland, and a civil war broke out. The government officials were killed and chased out of the country, and the government machinery simply broke down. Both the Russian and the German militaries got sucked into the conflict. Finally, with Sweden stepping in, the order was restored in 1918. Between claims and counterclaims involving Russians and newly independent Finland, the matter was referred to an international tribunal that ruled in favour of Finland while observing that the Finnish Republic possessed a legal right only after it was able to assert its authority throughout Finland without the intervention by the foreign troops.
In another case, referred to as the Belgian Congo affair, Belgium granted Zaire independence in 1960. However, soon afterwards, the new government that, incidentally, happened to be ineffective as well as corrupt and bankrupt, lost control over the country. The situation was controlled only once the Belgian Army and a UN peacekeeping force intervened. Once the order was restored, no questions were asked about the legitimacy of that government and the Zaire government was admitted into the UN.
In yet one more case, viz., Guinea-Bissau versus Senegal, the intervention of the International Court of Justice (ICJ) had been sought to declare the maritime boundary, as earmarked by their former colonial masters, France and Portugal in 1960, as invalid. The contention given was that by 1960, the freedom movement in Guinea-Bissau had become so strong that the colonial ruler had been rendered ineffective. However, the ICJ dismissed the petition observing that the revolt didn’t create an ‘international impact’. The ICJ went on to define the international impact as a situation wherein the state had toresort to some unusual methods to quell a disturbance or take extraordinary measures to address such a revolution.
Now let’s see the situation in J&K State in light of the above examples. Firstly, only the Poonch-Mirpur belt had been affected by the disturbances engineered by Muslim League based in British India, using local ex-servicemen. The rest of the Jammu region, the whole of Kashmir and Ladakh province were not affected, and no state-wide revolution had been happening. Those who claim that Kashmir, too, was in a revolt must remember that the political movement of Quit Kashmir had been put to rest with the arrest of NC leaders, and if the Kashmiris really wanted to be part of Pakistan, they would have joined the invaders. There indeed were few who did cooperate with the invaders initially—both under the influence of the Muslim Conference and as a way of self-preservation—and yet the fact remains that there was no pro-Pakistan wave in Kashmir Valley. On the contrary, the Indian Army that had landed without maps, was guided by locals who acted as their eyes and ears right through the campaign.
Secondly, whatever uprising was happening in Poonch was due to foreign intervention. While Pakis were using foreign elements to stir trouble, the Maharaja didn’t deploy any non-native forces to control the situation. In any case, the local disturbances had no international impact. The invasion of Valley that had triggered the chain of events leading to the signing of the IOA, was wholly-solely an act of aggression by a foreign power. Thus, it suffices to say that the Maharaja, was well within his rights to sign the IOA, the independent ruler of the J&K State.
There is certainly an internationally accepted yardstick that becomes applicable in the instant case. Pakistan, however, tries to apply it selectively and, thus, has not been able to impress the legal luminaries across the globe till now. With more than seven decades already elapsed, it is only because of the weakness of such an argument that no one believes Pakistan when it plays a victim card over Kashmir.
The author is a military historian and a Founder Trustee of the Military History Research Foundation ®
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