India pledged to hold plebiscite in Kashmir: SC

Apex court notes Indian PM Nehru vowed to leave Kashmiris free to decide the future of their state

ISLAMABAD: In its recent judgement on the constitutional status of Gilgit-Baltistan, the Supreme Court has noted that it was the Indian leadership's commitment to hold plebiscite arrangement in Kashmir.

The court, however, lamented that despite the passage of seven decades the promised plebiscite has yet to be held and the territory of Kashmir continues to remain divided.

"The commitment to a plebiscite was, at least ostensibly, echoed also from the Indian side, perhaps in an attempt to calm the uproar around the obvious injustice of Maharaja Hari Singh's alleged declaration of accession to India. Thus, the then Indian Prime Minister Pandit Jawaharlal Nehru unambiguously committed himself to the plebiscite arrangement," says a 29-page judgement authored by former chief justice Mian Saqib Nisar and endorsed by six other judges.

The verdict says that his (Nehru) telegrams to the prime ministers of Pakistan and the United Kingdom (UK) sought to create the impression that any Indian recognition of the Maharaja's accession to India was only provisional and that the question of the future of Jammu and Kashmir (ie, whether as part of Pakistan or India) would be determined by its own people after the restoration of law and order.

What, after all, could (at least facially) be more unambiguous than Nehru's telegram to the British Prime Minister Clement Attlee wherein paragraph No 3, he committed, "I would like to make it clear that the question of aiding Kashmir in this emergency is not designed in any way to influence the state to accede to India. Our view which we have repeatedly made public is that the question of accession in any disputed territory or state must be decided in accordance with the wishes of people and we adhere to this view."

The apex court of Pakistan further notes that this commitment of the India PM was repeated and forwarded by the British prime minister to the prime minister of Pakistan on October 27, 1947, stating: "He adds that he would like to make it clear that the question of aiding Kashmir in this emergency is not designed in any way to influence the state to accede to India."

It is also said that Nehru continued his protestations of supporting the right of the Kashmiri people to decide their future in direct communication with Pakistan's leaders. Thus in his telegram of October 28, 1947 to Liaquat Ali Khan, Nehru reiterated: "In regard to accession also it has been made clear that this is subject to reference to people of state and their decision. The government of India has no desire to impose any decision and will abide by people's wishes."

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Similarly, in his telegram on October 31, 1947 to the prime minister of Pakistan, the Indian prime minister reasserted as follows: "Our assurance that we shall withdraw our troops from Kashmir as soon as peace and order are restored and leave the decision regarding the future of this state to the people of the state is not merely a pledge to your government but also to the people of Kashmir and to the world."

The apex court; however, notes that Nehru's claims of sincerity in empowering the people of Kashmir to decide their future continued unabated. In his telegram on November 4, 1947 to the Pakistani prime minister, Nehru declared, yet again that, "I wish to draw your attention to broadcast on Kashmir which I made last evening.

I have stated our government's policy and made it clear that we have no desire to impose our will on Kashmir but to leave the final decision to the people of Kashmir. I further state that we have agreed on impartial international agency like United Nations supervising any referendum. This principle we are prepared to apply to any state where there is a dispute about accession."

The court also notes that Nehru's claims of fealty to the rights to the Kashmiris were echoed by his government's representatives. The Indian representative to the UN, Gopalaswami Ayyangar, made a policy statement in the UN Security Council on January 15, 1948 where he claimed that India desired "only to see peace restored in Kashmir and to ensure that the people of Kashmir are left free to decide in an orderly and peaceful manner the future of their state. We have no further interest, and we have agreed that a plebiscite in Kashmir might take place under international auspices after peace and order have been established".

Giving details of all Nehru's statements, the court says that it was on the basis of such assurances that the UNSC passed resolutions on January 17 and 20, 1948 establishing the UN Commission for India and Pakistan (UNCIP). The UNCIP was directed to investigate the facts and to report its advice. On February 6, 1948, the Security Council made an appeal to both parties to agree on a just settlement of the Kashmir problem, to put an end to violence and hostilities and to withdraw all regular and irregular forces who had entered the state from outside.

These resolutions were supplemented by a comprehensive resolution passed on April 21, 1948 and the UNCIP's resolutions of August 13, 1948 and January 5, 1949. Truce was declared on January 1, 1949. However, rather than adopting the process of demilitarisation as envisaged in the aforesaid resolutions India has made the area that it holds in Kashmir as one of the most militarised areas in the world, says the judgment.