Kashmir: A Legal and Historical Rebuttal to Pakistan's Baseless Claims at the State

The legitimacy of Jammu and Kashmir as a part of India is established in law and history, constitutional practice, and not merely a political accident. That is to say, Jammu and Kashmir has a legitimate legal basis, as a result of the Instrument of Accession, the Indian Independence Act of 1947, and the subsequent constitutional integration into the Republic of India.

Illustration by The Geostrata

THE LEGAL BASIS: THE INSTRUMENT OF ACCESSION

On October 26, 1947, Maharaja Hari Singh, the ruler of the princely state of Jammu and Kashmir, signed the Instrument of Accession, formally incorporating the state into the Dominion of India.

The Instrument was made legally binding when accepted by Lord Mountbatten, the Governor General of India, on October 27, 1947.

The Indian Independence Act, 1947, granted each of the princely states the right to accede either to India or to Pakistan, according to the ruler's will.

The Instrument of Accession signed by the Maharaja was identically worded in legal effect as those executed by more than 500 other princely states that acceded to India.

The reason for this was the events of 22 October 1947, when the tribal militias from Pakistan's North-West Frontier Province, armed and supported by elements of the Pakistani Army, invaded Kashmir.

In their advance, they created widespread violence and atrocities against the civilians, which led to the Maharaja approaching India for military assistance. Only after the accession was accepted did the Indian forces legally enter the state to repel the invaders.

AGGRESSION BY PAKISTAN AND INVALID CLAIMS

Pakistan's challenge to the accession is devoid of legal standing. The tribal incursion was planned after a meeting on September 12, 1947, in which Pakistan's Prime Minister Liaquat Ali Khan reportedly endorsed a plan to invade Kashmir and to arm rebels in Poonch.

The military act occurred before the Instrument of Accession and made Pakistan the aggressor, giving it no standing to claim illegitimacy thereafter. 

Pakistan Governor-General Mohammad Ali Jinnah's assertion that the accession was "fraudulent" blatantly disregards the legal considerations of succession that were in place for all princely states.

The Maharaja had sovereign capacity to accede to one dominion over another, and his choice was legally effective as per the Indian Independence Act, 1947. Pakistan's breach of its standstill agreement, in conjunction with its armed invasion, extinguished any moral or legal basis for contesting this valid decision.

CONSTITUTIONAL INTEGRATION AND ARTICLE 370

Article 370 of the Indian Constitution granted Jammu and Kashmir temporary special status after accession, enabling it to exercise limited autonomy while remaining an integral part of India.

A Presidential Order in 1954 added Article 35A to give certain privileges to permanent residents.

These provisions were never symbols of any “disputed status” but rather administrative arrangements reflecting special circumstances after independence.

On 5 August 2019, the Government of India issued Presidential Order C.O. 272 and passed the Jammu and Kashmir Reorganization Act, revoking Article 370, and reorganising the state into two Union Territories: Jammu and Kashmir, with a legislature, and Ladakh, without a legislature.

This extended the whole Constitution of India to the region in order to give equal rights and make the laws uniformly applied.

THE UN RESOLUTIONS: CONTEXT AND MISINTERPRETATION

Pakistan often misrepresents UN Security Council Resolution 47 (April 21, 1948) to claim that Kashmir remains a "disputed territory."

But the resolution had categorically laid down that Pakistan must withdraw all its nationals and tribesmen from the territory before any plebiscite was considered. Since this primary condition has never been met by Pakistan, the provisions relating to the plebiscite have always remained legally inoperative.

Furthermore, it was India, not Pakistan, that took the matter to the UN-further confirming India's legal standing as the aggrieved party.

The resolution merely acknowledged that India was committed to democratic principles and the rule of law.

The UN has never stated that Kashmir's accession was illegitimate. Rather, it has called for ongoing bilateral talks between India and Pakistan, noting that it sees the issue to be resolved peacefully and in a mutually beneficial manner.

The UN has never stated that Kashmir's accession was illegitimate. Rather, it has called for ongoing bilateral talks between India and Pakistan, noting that it sees the issue to be resolved peacefully and in a mutually beneficial manner.

THE INCONTROVERTIBLE TRUTH

The legally binding and historically substantiated accession of Jammu and Kashmir to India is constitutionally irreversible.

Pakistani claims are therefore based not on law, but upon its initial aggressive military action and subsequent occupation of areas in Jammu and Kashmir termed Pakistan-Occupied Kashmir (PoK) by India.

Jammu and Kashmir's history, as an integral part of India, has been characterised by democratic participation, constitutional evolution, and socio-economic progress, wherein the people of Jammu and Kashmir now enjoy all of the fundamental rights that the Indian Constitution provides and have never been available to those under Pakistan's tenure.

Thus, in law and fact, Jammu and Kashmir is and will continue to be an integral part of India reality, which no amount of distortion and propaganda can obliterate. 

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BY VAIBHAV PANDEY

TEAM GEOSTRATA

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