By Syed Sharfuddin
In order to strengthen the federation of a pluralistic state (multi-ethnic and multi lingual population) where minority communities (sub-nationalities) are often distrustful of the majority and end up shouting human rights violations and organising protests every now and then, the following political arrangements may be useful for enhancing the unity and cohesion of the state.

1-The post of President of the federation should be rotated among all federating units. The President should be appointed for a two year term. Malaysia follows this practice for appointing its monarchs by rotation.

2-The post of Governor of each federating unit should be rotated among representatives of its constituent districts. Governors should also serve a two year term. This will enable political representation of smaller nationalities in a province.

3-Each constituting unit of the federation should contribute manpower at the rate of 25% of its active defence forces comprising the army, navy, airforce and para military personnel. This will take away the grievance of smaller units that the military is dominated by personnel from the majority province.

4-Each constituent unit of the federation should draw a target of financing 10,000 inter-linguistic and inter-provincial marriages of its eligible youth each year. Free marriages will result in integrating diverse groups in the national stream.

5-All men in the federation should have razor cut bald heads and married men should wear rings (right hand finger #2); and all women of the federation should wear fresh flowers on their ears (right ear for unmarried women and left ear for married women). This will create a true national identity and national pride in the people.

6-On the National Day of the country the state should serve free soup and bread to all its citizens through soup kitchens and panahgahs. This will encourage people to go out of their homes and participate in national events without worrying about putting a meal on the table in the evening.

7-On the Independence Day of the country (If different from its national day) every family should cook vegetable biryani and kheer and send it to its immediate neighbour family to deepen brotherhood and friendship among people. This will create good vibes and enable people to get to know their neighbours better.

By Syed Sharfuddin*

The structure of state governance in modern times with few exceptions comprises the executive, the legislature and the judiciary each of which are independent of each other to the extent possible according to the system of government followed in a country. Pakistan’s system of governance is parliamentary democracy modelled after the British Westminster Democracy and codified in the 1973 Constitution with all its amendments up to date.

It is said that dictatorships and oligarchies are more efficient and cost effective in delivering political governance compared to representative democracies because the former do not need to follow the requirement of consulting the people except those in position of power. But democracies by their very nature require wider public engagement and consultation. They go through a lengthy process of political debate and enact legislation through a cumbersome legislative process requiring many readings of bills and presidential assent. Their decisions, whether in cabinet or in parliament, are ideally reached by consensus and failing this, by majority vote.

The same principle applies to small and large legislatures. It is easy to enact laws and exercise oversight function by a small legislature compared to a large people’s assembly which is neither cost effective to elect, nor easy to manage and service. But just as democracy is a political necessity for the smooth governance, peace and political stability of a state, a larger legislature is also a necessity for a country, and more so in a federation, which is home to diverse ethnic, linguistic and/or religious populations and regions.

While cost may be one discouraging factor against a larger legislature, there are other mitigating factors, such as confusion and deadlock in reaching decisions due to large number of un-coordinated voices in the assembly or too many committees resulting in over-planning and fragmentation of legislative work. One way to regulate these forces  is to strike a balance and equation between four functions of legislation: 1) the method for electing representatives to parliament; 2) the rules drawn up for legislation; 3) the degree of diverse public representation in parliament; and, 4) the basis of representation through well defined constituencies and electoral quotas.

The present composition of federal parliament in Pakistan is 342 seats in the National Assembly (lower house) and 104 seats in the Senate (upper house). The 342 seats in the National Assembly are made up of 272 general seats for single-member geographical constituencies directly elected on first past the post basis; 60 reserved seats for women and 10 reserved seats for non-Muslims. Against this allocation, women and minority representatives are elected through an indirect proportional representation system where each province is a single constituency for women and the whole country is a single constituency for non-Muslims. In their election, due weightage is given to political parties represented on the general seats. Women seats are allocated proportionally to political parties, which secure more than 5% vote in the national election.

In the Senate 104 seats are filled by an electoral college of members of the national and provincial assemblies . Each of the four provinces, Balochistan, Sindh, Punjab and Khyber PK are allocated 23 members, comprising 14 general seats, four seats for women, four seats for technical experts including religious experts and one seat for non-Muslims. The Federally Administered Tribal Area is allocated 8 seats. Islamabad federal capital is allocated four seats of which two are general seats, one for women and one for technical experts.

Provincial Assemblies are directly elected through adult franchise at the time of general elections for the federal parliament. The Punjab Assembly has 371 seats, Sindh Assembly has 164 seats, Khyber PK Assemby has 124 seats and Balochistan Assembly has 51seats. The number of seats in each provincial assembly depends on the population spread in that province. Women representation in the provincial assemblies is under 20% and religious minorities are under 5%.

There are no reserved seats in the national parliament in either house for khawajasaras, the equivalent of LGBTQ community in Pakistan, or for handicapped persons both of whom are classified as vulnerable groups, although political parties are encouraged by the Election Commission to nominate them from their political platform. There are also no seats reserved for retired military officers or defence personnel in parliament despite the fact that the military has always played a major role in the politics of Pakistan even under civilian democratic rules. There are also no reserved seats in the parliament for Azad Jammu & Kashmir and Gilgit-Baltistan regions.

At the time of the 2017 census, Pakistan’s population was 190.32 million. Taking into account displaced persons during the military operation against terrorists, un-counted women in rural areas and the passage of time since the last census, the population figure could be well near 200 million at the end of 2019. Considering this population, the composition of elected representatives in the National Assembly is considerably very low. In Cuba, which is a country of 12 million people, the size of its national assembly is 605. The Chinese National Congress has 2287 delegates who meet every 5 years to shape policy and decide political positions. In Italy where the population is 61 million there are 630 members in the Chamber of Deputies (lower house) and 315 members in the Senate (upper house) all of whom are elected through adult franchise. In Britain, which is the mother of all democracies in the Commonwealth, for a population of 65 million, there are 650 members in the lower house (House of Representatives) who are directly elected and 793 members in the upper house (House of Lords) who are appointed. Pakistan’s population is three times more than Italy’s and Britain’s population. Ideally, its National Assembly should consist of 1026 members and the Senate should have at least 520 members.

There is a good justification why Pakistan parliament should be enlarged by at least three times from its present composition. Firstly, the parliament of Pakistan is considerably under represented given the large scale of the country’s administrative division comprising Districts (129), Urban Councils (2055), Rural Councils (8145), Local Authorities (9398) and Military Cantonments (56). Secondly, while the executive and the judiciary branches are very well represented in the government, as well as adequately staffed, the parliament is not as much resourced either in the National Assembly or in the Senate. Thirdly, the representatives who get elected to the parliament do not truly represent the diversity of the population, which has its roots in sections of the society other than the wealthy or land-owning people of Pakistan. Although there are quotas fixed for women, technical experts and minorities for representation in parliament, nearly 30 diverse communities or professions do not find their interests directly represented in parliament. Finally, a large parliament would be able to deliver quality performance by enabling its members to develop expertise in different areas of legislation, reduce institutional corruption, spend more time in the constituencies, strengthen committee work and block any one or few political parties or interest groups from shirking responsibility or dominating  the legislative function for their own interests as against the people’s, as has been often the case.

One of the reasons why not much thought has been given to increasing the size of the national parliament in Pakistan is the economic cost of the legislative efficiency where the efficiency of parliament is directly related to its size. While the cost of electing, maintaining and managing a sizeable legislature compared to its legislative output will always work out to be high, a larger legislative could in return result in satisfying the smaller federating units of their higher and more visible representation in parliament; a more efficient and action-oriented committee structure; and a productive division of labour in delivering legislative and oversight functions.

In a large legislature, the government spending would naturally be met through taxes raised in each constituency, thereby reducing the overall revenue collection in the national exchequer. But this can be offset by checking wastage and corruption through a better oversight function and by reducing the salary and perks of the members. For example, the honorarium of an MNA in an enlarged parliament should not exceed the maximum salary of a Grade 19 officer in the federal government. A similar reduced salary scale should apply to Senators. A political ethic should be promoted that they are the leaders of the country who are there to serve, and not to profit or seek privileges and perks. There is also no need to start constructing huge buildings to accommodate the additional members of the enlarged parliament under one roof. The existing infrastructure of the National Assembly and the Senate in Islamabad is sufficient to accommodate a large number of representatives on benches arranged in the Westminster style seating instead of the current First Class airport lounge type seats, which are ideal to relax but totally unfit for public service. A robust committee structure will also mean that all MNAs or Senators will not be required to meet frequently and when they do, a full house session can be convened at the Islamabad Convention Centre where they can make use of all the audio-video and conference facilities available to them at parliament.

A large legislature would also increase the size of the wish list for development projects each constituency would expect its representative to deliver. This expectation is but natural and also happens in the present parliament where people expect the ruling party to deliver on its electoral promises. The case for finding project finance can be turned around by making the larger legislature enact laws and oversee policies, which do not benefit only a privileged section of the population but generate income and growth using the untapped potential of human and natural resources and their clever management and allocation in each of the constituencies.

A parliament comprising over 1000 members can never be a rubber stamp parliament, nor it is possible to do horse trading with its members if they have been elected through adult franchise in a multi-party political system. The strongest argument in favour of having a larger parliament in Pakistan is the political and social conditions in the country, which have dramatically changed from the time when the 1973 constitution was adopted to run a truncated country emerging from the dark shadow of the 1972 breakup of East and West Pakistan. The phenomenal increase in population in which vote-eligible young persons form the majority, the emerging regional voices that need to be heard and given weight and the necessity of looking after the needs of a diverse and frustrated pluralistic society demand that the composition of the National Assembly and the Senate should be increased to at least three times it present membership through a constitutional amendment in the 1973 Constitution. In fact, the National Assembly and Senate seats in Pakistan are fit to serve a country of 42 million, not 200 million population.

Of course the argument of increasing the size of the parliament will be meaningless if more of the same representatives are added to these hallowed chambers for the sake of representation, legislation, ratification of signed international treaties, their enactment into local laws, budgetary allocations and oversight of high-level public appointments & functioning of government ministries and departments. A fundamental reform of the way party workers are nominated and given tickets by political parties also needs to be written into law. We have seen that the affirmative action for women representation has brought many women to high political and decision-making levels but not necessarily improved the quality of parliamentary performance except satisfying feminist groups about gender statistics. We have also seen how money politics has made the entry of good political material into parliament impossible, resulting in same faces and families taking turns at every election under the same or different party flags. In fact the term ‘electable’ used for such persons in the 2018 general election of Pakistan forced a popular reform party to change its electoral strategy and give them preference over its own political workers for grant of electoral tickets.

This reform can be implemented by a constitutional amendment expanding the seats in the National Assembly from 342 to 1026 to be contested generally against single constituencies, and in the Senate from 104 to 520 seats, representing 100 seats for each of the four provinces, 50 seats for AJK representation, 50 seats for Gilgit-Baltistan representation and 20 seats for Islamabad federal capital. The representation of AJK and GB may require further amendment of the Constitution in Article 257, which needs to be reviewed. Some current practices also need to be replaced by other good practice such as abolishing quotas for women, technical experts and non-Muslims for representation in parliament and replacing these by making it mandatory for political parties to nominate at least 33% women; 10% non-Muslims; 10% ex-military officers, 3% handicapped and 2% khwajasaras from their party platform for the general seats. Where political parties lack such diverse membership, they should be assisted by the Election Commission to start a broad based party recruitment drive.

With a larger pool of Senate seats it should be possible to allocate all the seats to a wider section of the population representing various professions and diverse interest groups comprising political workers, fishermen, miners, ex-MNAs & MPAs, farmers & farm workers, trade union members, retired judges, barristers & bar members, bankers, financial experts, academics, media persons, doctors, nurses, social workers, businessmen, vendors & traders, ulema, youth representatives, retired military officers, senior citizens over 70 years of age, transporters, builders, engineers, general contractors, hoteliers, IT professionals, retired bureaucrats, ex-diplomats, scientists, artists, poets & writers and housewives. Political parties must be obliged to nominate at least 3 persons from each of the above professions/group for the Senate elections to make up the total of 100 seats allocated to each province.

The Election Commission should also follow this up by changing some of the electoral rules for political parties. For example, multiple-constituency candidacies for general election should be made illegal as it usurps the right of other deserving political workers to become candidates because an influential person in the political party gets nominated against multiple constituencies. A political party, not meeting the electoral requirements should be heavily fined, including the possibility of it’s de-registration for consistent violation of electoral rules.

These changes will make the country’s legislature more effective in representing the diversity of the people through their chosen political parties and enable this important state institution to exercise an efficient and qualitative legislative and oversight function freely within the existing constitution and political system. However, to do so the parliament will also need to manage its large size effectively, and given the necessary political space and provided the required technical, IT and administrative support to enhance its capacity.

25 December 2019

*The writer is an ex-diplomat, an election expert and a political analyst for South Asia region.

Syed Sharfuddin

This paper examines the chronology of accession of Kashmir with a view to finding answers about the timing and authenticity of the instrument of accession signed by the ruler of the State of Jammu & Kashmir on 26 October 1947, which is the date of accession according to official Indian account. Some scholars have refuted this stand and relied on the evidence that the Maharajah of Kashmir signed the instrument of accession after Indian troops landed in Srinagar on the morning of 27 October 1947. This leads to the question would such accession be valid in law if it were extracted through blackmail and duress.

On the eve of the partition, there were 565 officially recognised princely states in British India, which covered 40% of land and 23% population of the Colony. The Government of India Act 1935 had provided the establishment of an all India federation, subject to 50% of the princely states joining it to be effective. In the event, the princely states did not join and the federation never materialised.

Subsequently, in January 1946, provincial elections were held in British India to ascertain the wishes of the people in regard to the creation of the new successor dominions of India and Pakistan. Princely states did not take part in these elections.

The British government had introduced the concept of Paramountcy in the governance of princely states which established the authority of the ruler over his subjects. Princely states were excluded from the partition of British India. Their rulers were given the option to accede to the successor dominions of either India or Pakistan. Unlike the Government of India Act 1935, the option of claiming independence was not explicitly given to the princely states in 1947.

The Paramountcy principle ran contrary to the democratic principle of the 1946 provincial elections of British India. According to this principle, the ruler was supreme in deciding the fate of his state. Vallabhbhai Patel opposed this principle because he feared that after the British left India, the rulers of princely states would declare independence instead of joining the successor dominions. It is, however, ironic that while India benefited from the Paramountcy principle in Kashmir, it opposed its application in Junagadh and Hyderabad. In Kashmir, what suited India was the Paramountcy of the ruler but in the other two states India chose instead, the Paramountcy of “popular interests and welfare.”

This explains the motif behind India’s annexation of those princely states which opted to remain independent against the wishes of the Indian Viceroy Lord Mountbatten and Prime Minister Jawaharlal Nehru. The states, which were subsequently taken by India, were: Hyderabad (annexed in 1948 along with Junagadh), Pondicherry (1951), Goa, Daman & Diu (1961), Sikkim (1975) and occupied Jammu & Kashmir (2019). The only exception was Bhutan but to remain independent it had to surrender part of its sovereignty to India in the Indo-Bhutan Treaty of Friendship 1948.

In July 1947 the Indian States Department despatched a draft Standstill Agreement to all the rulers of princely states in India suggesting its finalisation at a conference to be held in Delhi on 25 July 1947. The Standstill Agreement provided for the continuation, for the time being, of all existing agreements and administrative arrangements in matters of common concern between the acceding state and the successor dominion. The Government of India made the acceptance of Standstill Agreement conditional on accession by the concerned states.

At the July 1947 meeting, which was chaired by the Viceroy, Lord Mountbatten, a proforma draft Instrument of Accession was also distributed and agreed by the rulers. Most rulers agreed to the Standstill Agreement. They also agreed to accede to the successor Indian dominion on 15 August 1947.

The Hyderabad police action, carried out on the direction of Sardar Vallabhbhai Patel with the knowledge of Nehru (II) resulted in the deaths of 40,000 Muslims.

The fighting in Kashmir cost an estimated 100,000 Muslims dead and refugees in the Jammu massacres and about 20,000 Hindus and Sikhs in the Mirpur massacres.

These numbers are far greater than the murder of 2000 Muslims in the Gujarat riots in 2002 and the earlier killings of 3000 Sikhs in the 1984 Delhi riots.

Maharajah Hari Singh’s State of Jammu & Kashmir was not a stable political entity. Long before partition, he had lost control of Gilgit Agency and Northern areas, which were leased out to the British from 1935 to 1947. Maharajah Hari Singh’s writ in Poonch, Bhimber and Mirpur was marred by popular dissent and hatred, caused due to his discriminatory treatment of his subjects, high taxes and humiliating treatment of the descendants of his grandfather’s family of Dhian Singh. His subjects in these areas did not consider Hari Singh as the “spiritual heir” to his predecessor Maharajah Pratap Singh who died issueless and without a son. Maharaja Hari Singh’s loyal subjects were concentrated in Kashmir, Jammu and Laddakh. In the Srinagar valley most of his subjects were Muslims who were supporters of either National Conference of Sheikh Abdullah or Muslim Conference of Chaudhry Ghulam Abbas.

Faced with these circumstances, the Maharajah needed time to decide the future of his state. In a telegram sent to the successor dominions of India and Pakistan on 12 August 1947, Prime Minister Ram Chandar Kak wrote: “Jammu & Kashmir Government would welcome Standstill Agreements with India/Pakistan on all matters on which these exist at present moment with outgoing British India Government. It is suggested that existing arrangements should continue pending settlement of details.” Pakistan agreed to sign the Standstill Agreement in the hope that the Maharajah will make the popular choice of acceding to Pakistan. India invited the Prime Minister to visit Delhi to negotiate the agreement. In October 1947, Maharajah Hari Singh replaced Ram Chandar Kak with Mehr Chand Mahajan. The Standstill Agreement was never signed by India.

There were two reasons which made Pakistan hopeful that the Maharajah, if he could not keep Kashmir as an independent state, might join Pakistan: the Maharajah distrusted Congress leaders, including Nehru and Patel and felt no Hindu affinity toward India because he was himself a non-practicing Hindu. He had also placed Sheikh Abdullah in jail. (VI). Hari Singh’s sole interest was to save his position and his state.

Indian historians have stated that Pakistan violated the Standstill Agreement by sending tribal militias to Kashmir, thereby provoking India to react in the manner it did on 27 October 1947. But in reality, Jinnah had no information about the tribal rebellion(VII).

What was happening in the State of Jammu & Kashmir following the partition of India was an internal struggle for power, which involved only Maharajah’s subjects. The governments of Pakistan was not involved. In fact Pakistan was so careful in maintaining its neutrality in Kashmir that when Major William Brown sent a cable to his commanding officer in Rawalpindi informing him that Gilgit had acceded to Pakistan, Col Iskandar Mirza wanted him disciplined for stepping out of his responsibilities as CO of Gilgit Scouts. How Gilgit and Baltistan got out of Kashmir is another story we will discuss on some other occasion. The Government of Pakistan also kept quiet on the requests of accession of Hunza and Nagar for weeks until Liaqat Ali Khan was told that if Pakistan did not accept their accession they would seriously consider joining Russia.

The command of the Indian and Pakistani army in the early days of the independence was in the hands of British military officers who were under strict orders from their Supreme Commander, Field Marshal Sir Claude Auchenleck not to commit their officers in any situation. The people in Poonch, Gilgit and the North West were outside the control of the Pakistan state.

When M A Jinnah leant about the Indian intervention, he made a radio broadcast on 28 October and declared that “the Government of Pakistan cannot recognise accession of Kashmir to India, achieved as it has been by fraud and violence”.

While things were deteriorating in Kashmir,

I have come across criticism that while things were deteriorating in Kashmir,Muslim League leaders in Pakistan made no effort to cultivate Sheikh Abdullah or the Maharajah. (VIII).  But it is a fact that Pakistan made attempts to engage with Maharajah Hari Singh over the question of accession. But his Prime Minister gave cold shoulder to the envoy of M A Jinnah, Major A S B Shah who visited Kashmir in October 1947 to negotiate the terms of Kashmir’s accession to Pakistan. Maharajah’s officials not only refused to give Major Shah a meeting with the Maharajah but also told him to get lost.

But India was busy sending wireless equipment, arms and ammunition to the Jammu & Kashmir State to bolster Maharaja’s fighting capacity. In September 1947 India also sent a military Adviser to Jammu & Kashmir State. He was a serving member of the Indian army. The new Prime Minister of Maharajah Hari Singh, Mehr Chand Mahajan was a friend of India. He was also a member of the Punjab Commission whose Chairman Sir Cyril Radcliffe connected Kashmir to the Indian Punjab by awarding Batala and Gurdaspur to India which according to the partition formula of June 1947, should have come to Pakistan. According to Professor Pervaiz Iqbal Cheema, Lord Mountbatten was concerned about India remaining in the Commonwealth after independence, and therefore he influenced Sir Cyril to provide India access to Kashmir through Punjab.

It is said that Maharajah Hari Singh would not have rushed to accede his State to India, had there been no large scale Muslim tribal invasion of his State from the west. This is only party true. The Maharajah had already made up his mind to join India and not Pakistan, unless he found a way out to remain independent. He was gradually losing control over his State so much so that by October 1947 he was sure Srinagar would fall, forcing him to flee to Jammu.

The Poonch uprising had its roots in the historical hatred of the locals toward the Maharajah. A similar uprising had taken place in Poonch in 1830 during the reign of his grandfather Gulab Singh. In the NWFP, the tribal Pathan advance toward Kashmir was in retaliation for the death of thousands of Kashmiri Muslims in Jammu at the hands of Dogra army on the eve of the partition.(IX)

Chronology of Accession

The chronology of the instrument of accession revolves around four days – from 24 to 27 October 1947.

24 October 1947

On 24 October Maharaja Hari Singh sent his Deputy Prime Minister R L Batra to Delhi to discuss his terms for conditional accession. On the same day, the tribals cleared many road blockades to continue their advance toward Srinagar. Hari Singh fled in panic to Jammu.

Lord Mountbatten felt that if Kashmir fell, a large tract of territory, which he thought ought to go to India would end up in the lap of Pakistan. Mountbatten did not like M A Jinnah and did not want him to appear victorious over Kashmir

25 October 1947

The next day, on 25 October 1947, Indian Defence Committee met and concluded that if nothing was done, Srinagar will fall to the rebels and Kashmir will be lost to Pakistan.

Lord Mountbatten felt that if Kashmir fell, a large tract of territory, which he thought ought to go to India would end up in the lap of Pakistan. Mountbatten did not like M A Jinnah and did not want him to appear victorious over Kashmir. Moreover, he did not want Nehru to be thrown to the hawks in the Congress such as Vallabhbhai Patel who had been saying all along that Kashmir should be taken by India in the same way as they took Hyderabad.

Nehru played his cards smartly. On 25 October he sent a telegram to Prime Minister Clement Attlee in London, highlighting the geo-political implications of a lost Kashmir for India, and by implication, for Britain and the Western world. The telegram read: “Kashmir’s northern frontiers … run in common with those of three countries – Afghanistan, the Soviet Union and China. The security of Kashmir … is vital to the security of India”. By referring to the great game politics of the region, Nehru ensured British acceptance of the military action India was going to take to stop the advance of Azad Kashmiri militia for liberating Kashmir. It also satisfied Mountbatten who was concerned about the safety of about 450 British subjects living in Kashmir.

On 25 October, Secretary V P Menon flew to Srinagar to meet the Maharaja and other Kashmiri Pandits such as D P Dhar and Dwarkanath Kachru. He returned to Delhi with Kashmir’s Prime Minister Mehr Singh Mahajan and a couple of Indian army and air force officers who had done their recce of the Valley to finalise Indian counterattack in Kashmir. Sheikh Abdullah also flew to Delhi and stayed at the residence of Jawaharlal Nehru.

All that was left now, was to get the Maharajah to sign the instrument of accession. His Prime Minister and Deputy Prime Minister were in Delhi to conduct negotiations.

In principle, Mountbatten did not want India to send troops in Kashmir without the signed letter of accession by the Maharajah. But the gravity of the situation forced him to approve Indian deployment prior to receiving the signed instrument.

26 October 1947

On 26 October 1947, several sets of negotiations took place in Delhi involving Sheikh Abdullah, Mehr Chand Mahajan, V P Menon, Lord Mountbatten, Jawaharlal Nehru and Baldev Singh, Minister of defence. The agenda of these meetings was India’s military action, future relationship between the State of Jammu & Kashmir and the Indian Union and relations between Hari Singh, Sheikh Abdullah and Mehr Chand Mahajan.

Mehr Chand Mahajan demanded from Nehru unconditional Indian military help. In return, Nehru wanted concessions from the Maharajah comprising a signed instrument of accession and Sheikh Abdullah becoming the Chief Minister of the State. Mahajan said if Indian army did not help, he would go to Lahore and seek help from Jinnah. The agreement did not take long to reach but it was subject to the approval of the Defence Committee.

The Maharajah who was in Jammu was unaware of the bargain his Prime Minister had made in seeking Indian military help in return for inclusion of the National Conference of Sheikh Abdullah in the governance of the State.

Later that day, the Indian Defence Committee met and received a report from V P Menon on the advance of the rebels. Menon reported that things were so bad that the rebels could reach Srinagar in the next 12 hours and there could be a bloodbath in the Valley involving Muslims and Hindus and Sikhs. Lord Mountbatten was extremely angry. He felt that Jinnah masterminded this advance to get Kashmir for Pakistan.(X)

In principle, Mountbatten did not want India to send troops in Kashmir without the signed letter of accession by the Maharajah. But the gravity of the situation forced him to approve Indian deployment prior to receiving the signed instrument.

Nehru asked Mehr Chand Mahajan and V P Menon to fly to Jammu and inform the Maharajah what had been agreed, and obtain his signature on the instrument of accession. Mahajan refused to leave until if was confirmed to him from his sources in Srinagar that Indian troops had landed in Kashmir. In his estimation, Mahajan had accomplished what Maharajah had instructed; get India’s help without the signature of the Maharajah on the instrument of accession.(XI)

In his memoirs, V P Menon claims that he travelled from Delhi to Jammu on 26 October and returned with the instrument of accession signed by Hari Singh. But according to another record, V P Menon told the British Deputy High Commissioner in Delhi on 26 October that he will fly to Jammu next day. From three other sources, namely, Nehru’s letter to Maharaja dated 27 October, Mehr Chand Mahajan’s autobiography and Maniben Patel’s memoirs it is confirmed that Menon did not arrive in Jammu before 27 October well after the start of the Indian military operation in Srinagar. (XII)

From these documents, it is clearly established that in the night of 26 October when arrangements were being finalised for Sikh soldiers to reach Srinagar by the break of dawn, there was no letter of accession in the custody of India. At a dinner with the English reporter of the Calcutta Statesman, Lord Mountbatten also confirmed that: “the Maharajah’s formal letter of accession was [still being] finalised”.(XIII)

According to Indian records, Hari Singh wrote a letter to Lord Mountbatten on 26 October 1947 with which the signed instrument of accession was attached. This was probably the letter V P Menon drafted for the Maharajah in Delhi on 26 October and got him to sign it on 27 October. Alastair Lamb finds it hard to believe that the Maharajah, having fled from Srinagar in a hurry and worried about his future, would have retained his wits to write such a letter himself on 26 October. The letter said: “it was my intention to set up an interim government and ask Sheikh Abdullah to carry out the responsibilities in this emergency with my Prime Minister”. Alastair Lamb questions as to how the Maharajah could have accepted Sheikh Abdullah, who he had imprisoned until a month ago, to be involved with the setting up of the interim government in Jammu & Kashmir. Lamb also points out that for many years the Government of India did not make public the signed instrument of accession, which was “attached” to Maharaja’s letter.(XIV)

It is possible that Mountbatten was aware that the instrument of accession and the cover letter which bore the date 26 October 1947 was eventually going to be signed by the Maharajah on 27 October, irrespective of whether it preceded or followed the Indian military deployment in Srinagar on the day. What was important for all sides at that time – India, Maharajah, Sheikh Abdullah and Mountbatten – was to save Srinagar before it was run over by the desperate bands of the Pathan tribes and soldiers of Major Khurshid Anwar and Colonel Akbar Khan.

27 October 1947

There are various Indian accounts about the signing of the instrument of accession on 27 October. Alastair lamb writes that the first Indian batch of Sikh soldiers landed in Srinagar at 9:00 am. According to one account, the Maharajah signed the instrument of accession before the Indian troops landed in Srinagar. Another account says the instrument was signed at “first light” on the morning of 27 October.(XV)

The India White Paper on Jammu & Kashmir says that on 25 October 1947 the Government of India directed the preparation of plans for sending troops to Kashmir but troops were sent on 27 October following the signing of the instrument of accession. (XVI)

Neither the proposal for  going to the UN nor holding a plebiscite in Kashmir came from Pakistan.

28 October 194

Lord Mountbatten could not envisage a truncated India, which depended on Pakistan for the source of its riparian waters. He went along with the false Indian narrative of “troops deployment following the accession” knowing that Pakistan could react in retaliation and a situation of an inter-dominion conflict could arise in the Commonwealth resulting in a major crisis, involving King George VI as Head of the Commonwealth. In fact when M A Jinnah leant about the Indian intervention, he made a radio broadcast on 28 October and declared that “the Government of Pakistan cannot recognise accession of Kashmir to India, achieved as it has been by fraud and violence”.

Jinnah proposed sending Pakistani soldiers to Kashmir, but he was prevented from doing so by Field Marshal Sir Claude Auchinleck. Auchinleck suggested that if Jinnah insisted on this course of action, he would ask General Gracey to withdraw all British officers from Pakistan armed forces.

On 28 October 1947, Lord Mountbatten replied to the Maharaja’s letter of 26 October 1947 which said: “it is my government’s wish that as soon as the law and order have been restored in Kashmir and her soil cleaned of the invaders, the question of the State’s accession should be settled by a reference to the people”.

Following Mountbatten’s suggestion, Prime Minister Clement Attlee wrote to Prime Minister Nehru on 30 October 1947 proposing a detailed plebiscite plan for Kashmir.

On 1 & 2 November 1947, Jinnah and Sheikh Abdullah accepted the plebiscite idea. Nehru also said that his government was committed to organising a plebiscite in Kashmir (XVII)

On two occasions, following the accession of Kashmir, Nehru avoided a direct contact with Jinnah in order not to commit himself to the mechanism and date of the plebiscite. (XVIII)

Part of the blame for the Kashmir tragedy goes also to the leaders of two main Kashmiri political parties. On the question of accession, there was no interaction between Sheikh Abdullah of National Congress and Chaudhary Ghulam Abbas of Muslim Congress.

The British government made 7 attempts to mediate in the Kashmir conflict but Nehru managed to stay away from any meaningful discussion on any proposal.

On 1 January 1948, India took the Kashmir issue to the UN Security Council appearing before the world body as the victim of aggression by Pakistan. The same policy seems to be directing India’s present foreign policy on Kashmir: to present itself to the international community as the victim of attacks by Pakistan based terrorists.

Conclusion

Accession of Kashmir to India was achieved by fraud and violence and, as such, was illegal and unacceptable. The letter of accession has never been made officially public by India. In 1971 it appeared in the printed letters of Vallabhbhai Patel in 1971. In 2016 an Indian researcher Venkatesh Nayak posted true images of the signed copy of the instrument of accession kept in the National Archives of India [https://thewire.in/history/public-first-time-jammu-kashmirs-instrument-accession-india/amp/].

Indian military action in Kashmir on 27 October 1947 preceded the signing of the instrument of accession which made its status in Kashmir one of occupying force. There is no information available until now about the conditionalities attached to Maharajah Hari Singh’s signed instrument of accession. The Maharajah signed the same proforma instrument, which other rulers signed when acceding to India. Therefore, it does not stand to reason why Kashmir was treated differently from Hyderabad or other former princely states? Was Sheik Abdullah bribed to accept accession in return for the special status of Kashmir provided in Articles 35A and 370 of the Indian Constitution which lasted 70 years. And if those statutory protections are now gone, doesn’t Kashmir get back falling in the same position as existed on 26 October 1947. These are questions arising out of India’s own record on Kashmir.

If the process of accession was complete in the case of Kashmir, as claimed by India, it is not understood why Lord Mountbatten, only a day after the Indian intervention in Kashmir called for the “question of accession to be settled by a reference to the people”. Prime Minister Clement Attlee also supported the plebiscite.

Part of the blame for the Kashmir tragedy goes also to the leaders of two main Kashmiri political parties. On the question of accession, there was no interaction between Sheikh Abdullah of National Congress and Chaudhary Ghulam Abbas of Muslim Congress. The lack of trust between them encouraged V. P. Menon to paint a grim picture of Srinagar and claim that it was sliding toward a civil war. This influenced Mountbatten to review his earlier stance that ‘accession should precede intervention’ in order to authorise the despatch of Indian troops to Srinagar on the morning of 27 October 1947 to avert a bloodbath of the civilians.

It should be realised that while going to the UN and calling for a plebiscite in Kashmir may keep the Kashmir dispute alive internationally, none of the two options is ever going to materialise.

Neither the idea of going to the UN nor holding a plebiscite in Kashmir came from Pakistan. However, while the initiators of these ideas (India and Britain) have abandoned their support for these options, Pakistan has strongly clung to them as possible solutions for the Kashmir problem. It should be realised that while going to the UN and calling for a plebiscite in Kashmir may keep the Kashmir dispute alive internationally, none of the two options is ever going to materialise. The UN will never be able to force India to accept international mediation on Kashmir. Similarly, there will never be a plebiscite in Kashmir because the preconditions for its conduct will remain controversial and never be met by either country fully.

A solution will need to be found in establishing Pakistan’s own historical, constitutional and political claim on Kashmir.

Historically, Pakistan should use the formula of partition, which took into account the principle of majority view when determining the accession of the princely states, notably in the case of Junagadh, Hyderabad and Kashmir. On the basis of this principle, Kashmir belongs to Pakistan and not India.

Constitutionally, Pakistan needs to amend the 1973 Constitution in regard to Kashmir and change Articles 1 and 257 by two third majority of the constituent assembly to establish its claim on Kashmir in law.

Politically, Pakistan should integrate Gilgit-Baltistan, Azad Kashmir and the Occupied Kashmir as the 5th, 6th & 7th provinces in the federation. The 7th province should be inducted when conditions are conducive for its inclusion in the federation of Pakistan.

Let me also make a reference to a sensitive subject, which no one wants to touch for the time being. It is the option of Independence for Kashmir. Lord Mountbatten and Prime Minister Jawaharlal Nehru were both opposed to the option of independence of princely states. The states, which did not join India on the eve of partition and instead opted for independence did not remain independent for long and were sooner or later annexed with India. Therefore the question of accession to be settled by a reference to the people of Kashmir, if it is ever allowed, will be to either to join with India or Pakistan. The third option does not exist in the context of the historical precedence of princely states.

London: 1 October 2019

About the author:  Mr Syed Sharfuddin is a former diplomat and a former Special Adviser in the Commonwealth Secretariat, London. He specialises in South Asian politics, conflict resolution and election observation.

Notes:

i. Alastair Lamb, Kashmir: Birth of a Tragedy 1947, Roxford Books, UK 1994; Andrew Whitehead, A Mission in Kashmir, Chapter 5, Penguin India, 2008; Mr Abdul Majid Zargar, Kashmir Accession Document Shrouded in False Myths, zargar271013.hm, www.countercurrents.org; Dr Abdul Ahad, Kashmir: Triumph and Tragedies, Chapter 23, Gulshan Books, India, 2012.
ii. According to the Sunderlal Committee’s report, which was not released until 2013, the number of Muslims who died during or after police action in Nizam’s State ranged between 27-40,000. According to another report, the number was 40,000. Pankaj Mishra, India at 70: The Passing of Another Allusion. New York Times, 11 August 2017.
iii. Christopher Snedden, Understanding Kashmir and Kashmiris, Oxford University Press, 2015.
iv. Das Gupta and Jyoti Bhusan, Kashmir and Kashmiris, Springer 2012.
v. Hari Singh’s love of western clothes and a liberal lifestyle was one of the reasons why Maharajah Pratap Singh, who was a devout Hindu, did not name Hari Singh (his nephew) as heir to the throne of Jammu & Kashmir. Instead, Maharajah Pratap Singh named Jagat Dev Singh from the Dhian Singh’s family line from his grandfather side as his “spiritual heir”. The British Indian States Department, however, overruled Pratap Singh’s Will and appointed Hari Singh as the Maharajah of Jammu & Kashmir, possibly because they could exploit his weaknesses about which they had ample information during his student period in London.
vi. Neither the Northern tribesmen nor the Gilgit Scouts were under Pakistan’s control, although, according to the Governor of NWFP, Sir George Cunningham, the officials of the Pakistan government were of two minds – either to turn a blind eye to the developments, or to express concern that this will precipitate the Maharajah to act in panic and join India.
vii. Safeer Ahmad Bhat, Jammu and Kashmir on the Eve of Partition- A Study of Political Conditions, South Asian Studies: Vol. 32, No. 2, July – December 2017, pp.285 – 295-
viii. Ibid
ix. Ian Stephens, Pakistan, London 1963.
x. M C Mahajan, Looking Back, London 1963.
xi. V P Menon, The Story of the Integration of Indian States, 1956.
xii. V P Menon, Ibid; LP&S/13/1845b,ff 283-95-India office records; M C Mahajan page 154, op cit; Nehru’s letter of 27 October to Maharajah Hari Singh, India office records; Ian Stephens, op cit; and Noorani-Frontline 24th March 1995.
xiii. An instrument of accession bearing the signatures of the Maharajah and Mountbatten was included in the collected correspondence of Sardar Patel. The text of instrument is the same as was approved for all princely states in the meeting of rulers on 25 July 1947. Sardar Patel’s Correspondence 1945-50 Vol I, Durgadas, New Light on Kashmir, Ahmedabad, 1971.
xiv. J Korbel, Danger in Kashmir, Princeton 1966.
xv. India White Paper on Jammu & Kashmir, New Delhi, 1948
xvi. The idea of plebiscite first came from Nehru on 30 September in the context of Junagadh whose Muslim leader had acceded to Pakistan.
xvii. Nehru did not accept Jinnah’s proposal to convene a special conference on Kashmir in Lahore on 29 May even though Mountbatten had agreed to it. Criticising Nehru, Sardar Patel said: “for the Indian PM to go crawling to Jinnah when we are the stronger side and in the right, would never be forgiven by the people of India.” Mountbatten tried again by joining the meeting with the meeting of the Defence Committee in Lahore on 1 November but Nehru again stayed away feigning this time, diplomatic illness. At this meeting, Mountbatten tried to assure Jinnah that the Maharajah had signed the letter of accession to India but His Majesty’s government wanted the people to decide the fate of the state through a plebiscite.

Also see:
https://www.countercurrents.org/zargar271013.htm
https://core.ac.uk/download/pdf/32578917.pdf
https://link.springer.com/chapter/10.1007/978-1-349-11556-3_10
https://www.academia.edu/385642/HISTORICIZING_PAKISTAN_S_KASHMIR_POLICY
https://thewire.in/history/public-first-time-jammu-kashmirs-instrument-accession-india

By Syed Sharfuddin*

Following the 5 August 2019 action by India withdrawing the special status of the Indian Held Kashmir granted under Article 370 of the Indian Constitution and declaring it as two Union Territories on 6 August 2019, there was a strong reaction in Kashmir, as well as in Pakistan but also a national consensus that despite the serious implications of India’s illegal action on the future of the disputed territory, Pakistan would not go to war with India on this action as a first option. The retaliatory but non-belligerent measures agreed by Pakistan’s National Security Committee under the Chairmanship of the Prime Minister on 7 August 2019 following an angry joint session of the Pakistan Parliament were as follows:

1. Downgrading diplomatic relations with India;
2. Suspending bilateral trade with India;
3. Reviewing bilateral arrangements with India
4. Matter to be taken to the UN, including the Security Council;
5. Pakistan Independence Day on 14 August to be observed in solidarity with the brave Kashmiris and their struggle for the right of self-determination;
6. 15 August which is India’s Independence Day to be observed as a Black Day in Pakistan.

In addition to these measures, the Prime Minister of Pakistan also directed that:

1. All diplomatic channels be activated to expose the brutal Indian racist regime’s design and human rights violations;
2. Pakistan Armed Forces to continue vigilance;
3. The Special Parliamentary Committee on Kashmir to remain seized with the issue.

The measures did not include Pakistan closing its airspace for all international civilian and cargo traffic bound to/from India. The airspace was opened on 15 July after it remained closed since 26 February following India’s failed airstrike in Balakot. The Kartarpur Corridor for Sikh pilgrims was also not affected by these measures.

The problem with these measures is that these have a short shelf life and will soon be forgotten. In a couple of months the world will get tired of news about Kashmir and move on to discuss other problems. This changed status-quo of the IHK would become the new norm in India-Pakistan relations. Having lost the IHK to India forever, Pakistan will start hearing bolder and more aggressive Indian claims on Azad Kashmir and Gilgit-Baltistan.

On social media, a number of other suggestions were circulating. These suggested that following India’s action, the Line of Control had ceased to exist and the border between India and Pakistan had reverted back to the old ceasefire line. It was suggested that Pakistan should unilaterally abrogate the 1972 Simla Accord and deny India the opportunity to take the position that India-Pakistan disputes cannot be taken to the UN and should be discussed bilaterally between the two countries.

A more daring suggestion was that Azad Kashmir government should unilaterally declare independence in consultation with Pakistan on behalf of the entire State of Jammu and Kashmir as it existed at the time of the Partition in 1947. Following this move, Azad Kashmir should apply for membership of the UN and the OIC, supported by Pakistan and other countries such as Turkey, Malaysia and Saudi Arabia. The social media posts went on to say that the Muslim leadership of IHK, including Hurriyat Conference leadership was deeply concerned about its future and would readily support cessation from India. At the international level, the nature of an inter-state dispute involving two countries would change from a bilateral matter to that of self-rule for the Kashmiris, forcing the UN Security Council to intervene. A new independent State of Azad J&K can sign a defence pact with Pakistan to defend it against any Indian aggression.

These suggestions hardly make any difference to the shifting status quo in Kashmir. The problem with abrogating the Simla Accord is that at least it provides a fig leaf for considering the disputed Kashmir issue bilaterally, especially in the absence of any new international mediation or peace initiative on Kashmir. The BJP Government in India will be only too happy to bin a Congress-negotiated agreement and abandon this platform for holding a dialogue with Pakistan on Kashmir. Secondly, Azad Kashmir declaring full independence will mean giving encouragement to separatists elsewhere in Pakistan. The suggestion is also unworkable globally. The Turkish Republic of Northern Cyprus, Western Sahara and Kosovo have been standing in the queue for international recognition for a long time and not succeeded. More recently, Barcelona declared independence after a referendum but its declaration was shot down by the EU. It won’t happen at all in the case of Azad Kashmir.

But thinking loud and out of the box is good because conventional approaches have not forced India to sit with Pakistan to resolve the Kashmir dispute. These have got Pakistan nowhere in the past 7 decades and are unlikely to improve the situation in the future except bring grief and more coffins.

A rather unconventional but democratic and non-Jihadi option, which might strengthen Pakistan’s claim on Kashmir in the long run is to bring Kashmiri leadership and people from all parts of Kashmir to met in a Grand Congress in the UK. In exercise of their political will in lieu of the long denied plebiscite, they should pass a people’s resolution overturning the Maharajah’s arbitrary and unfair accession to India with their democratic and popular accession to Pakistan. Following this, the Azad Kashmir Assembly should meet and pass a similar resolution and give Pakistan a clear mandate to claim the entire State of Jammu and Kashmir through a constitutional amendment in the 1973 Constitution, defining its status as the 6th province of Pakistan in Article 257 and showing its territorial boundaries as existed at the time of partition in 1947 in Article 1.

It may be recalled that in its ruling of 17 January 2019 on the granting of fundamental rights to the people of Gilgit-Baltistan, including the right to self governance, the Supreme Court of Pakistan did not allow the federal government to grant a provisional provincial status to Gilgit-Baltistan, pending a final settlement of the Kashmir dispute. It only allowed the government to  promulgate an Ordinance which was duly vetted by the Court. The Court was concerned that nothing in its judgement should affect the disputed nature and status of Kashmir.

India’s unilateral annexation of IHK may be used by Pakistan to invoke the well known international principle of rebus sic stantibus related to fundamental change of circumstances and claim the disputed state of Kashmir as Pakistan’s territory. This principle allows states to withdraw concessions or commitments made prior to the fundamental change of circumstances. Recently, President Trump has withdrawn from a nuclear agreement with Iran to which US was a state party along with Iran and the EU.

Using this principle, the federal government can also approach the Supreme Court of Pakistan to review its January 2019 ruling in regard to Gilgit-Baltistan becoming the 5th province of Pakistan on the basis that by its action of 5 August 2019, India has disregarded all norms of international law and UN resolutions concerning settlement of bilateral disputes, thereby freeing Pakistan of its obligations to regard Gilgit-Baltistan as a disputed territory.

There is a possibility, even though unlikely, that India’s Supreme Court might strike down the action of BJP government on the annexation of Jammu and Kashmir and find the process ultra vires, including the Jammu & Kashmir Reorganisation Act, which goes against the spirit of Article 370, if it is restored by the Court in India. However, it should not prevent Pakistan from going as far as India has already gone in its constitution in claiming the state of Jammu and Kashmir to give parity to its claim.  India’s claim was incorporated in the Indian constitution as early as 1949 following the alleged instrument of accession by the Maharajah of Kashmir which was challenged by the tribal people of Jammu and Kashmir, including Northern Areas, as well as Pakistan.

This is a democratic and constitutional solution, away from violence and agitation of the last 7 decades, but it will require patience and hard work to reach fruition. This is also the path, which the country’s founding father, Quaid-e-Azam Mohammad Ali Jinnah would have taken, if he were alive today.

For details of this recommendation, also see India’s Illegal Annexation of Kashmir Opens New Opportunities for Pakistan

London 9 August 2019

*Mr Syed Sharfuddin is a former diplomat and a former Special Adviser for Asia in the Political Affairs Division of Commonwealth Secretariat London (2000-2006).