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UN Resolution



  • The United Nations Security Council Resolution 47 was passed by United Nations Security Council under chapter VI of UN Charter.[515] Resolutions passed under Chapter VI of UN charter are considered non binding and have no mandatory enforceability as opposed to the resolutions passed under Chapter VII.[516][517][518][519]
  • On 24 January 1957 the UN Security Council reaffirmed the 1948 resolution.The Security Council, reaffirming its previous resolution to the effect, "that the final disposition of the state of Jammu and Kashmir will be made in accordance with the will of the people expressed through the democratic method of a free and impartial plebiscite conducted under the auspices of United Nations," further declared that any action taken by the Constituent Assembly formed in Kashmir " would not constitute disposition of the state in accordance with the above principles."[520]
  • In March 2001, the then Secretary-General of the United Nations, Kofi Annan during his visit to India and Pakistan, remarked that Kashmir resolutions are only advisory recommendations and comparing with those on East Timor and Iraq was like comparing apples and oranges, since those resolutions were passed under chapter VII, which make it enforceable by UNSC.[521][522][523][524][525][526]In 2003, then Pakistan President Pervez Musharraf said Pakistan was willing to consider alternative bilateral options to resolve the dispute other than solely UN resolutions.[527][528][529]
  • In 2010, United States Ambassador to India, Timothy J. Roemer said that Kashmir is an 'internal' issue of India and not to be discussed on international level rather it should be solved by bilateral talks between India and Pakistan.[530][531][532][533] He said, "The (US) President ( Barack Obama), I think was very articulate on this issue of Kashmir. This is an internal issue for India."[530][531]India alleges that Pakistan failed to fulfill the pre-conditions by withdrawing its troops from the Kashmir region as was required under the same U.N. resolution of 13 August 1948 which discussed the plebiscite.[534][535][536]
  • Separatist Hurriyat leader Syed Ali Shah Geelani said: "First of all when they say Kashmir is an internal issue, it is against the reality. The issue of Jammu and Kashmir is an international issue and it should be solved. As long as promises made to us are not fulfilled, this issue will remain unsolved."[537][538]

Instrument of Accession

  • The Instrument of Accession of the State of Jammu and Kashmir to the Union of India was signed by Maharaja Hari Singh, erstwhile ruler, on 25 October 1947 and executed on 27 October 1947 between the ruler of Kashmir and the Governor-General of India. This was a legal act and completely valid in terms of the Government of India Act 1935, Indian Independence Act 1947 and under international law. Hence the accession of the Jammu and Kashmir state was total and irrevocable.[539]
  • The Constituent Assembly of Jammu and Kashmir had unanimously ratified the Instrument of Accession to India duly adopting a constitution for the state endorsing perpetual merger of Jammu and Kashmir with the Union of India. The Constituent assembly lawfully represented wish of Kashmiri people at that time.[539]Indian authorities claim that the 65% voter turnout in Kashmir elections is an endorsement of the "Instrument of Accession" and Indian democracy.[540]
  • Alastair Lamb writes that there is no dispute on the fact that the Instrument of Accession was presented to the world as provisional and conditional on the wishes of the people of the state. Therefore, if the people of Kashmir were to vote for not staying with India then any document relating to accession signed by the Maharajah would become null and void.[316]
  • Indian commentators have endeavored to argue that the plebiscite proposal was personal to Mountbatten (the plebiscite proposal was not personal to Mountbatten since he was explicitly acting on behalf of his Government), that it was ex gratia and not binding on the subsequent Indian administrations. The actual fact was that the plebiscite policy had long been established before the crisis in Kashmir and was an inherent part of the process by which British India had been partitioned into the Dominions of India and Pakistan.[316]
  • A.G. Noorani also writes that the accession of Kashmir to India was strictly conditional. He says that Kashmiri rights for self-determination are not derived from the UN Resolutions but their right is actually engrafted as a condition on the Instrument of Accession. He writes that state elections do not fulfill this condition since Mountbatten mentioned a reference to the people of the state and not 'elections to the Assembly'.[541]
  • According to a 1994 report by the International Commission of Jurists the people of Jammu and Kashmir still have not been able to exercise their right to self-determination which became available to them at partition.[319]

Article 370

  • Article 370 of the Indian constitution is a provision that grants special autonomous status to Jammu and Kashmir. The article is drafted in Part XXI of the Constitution, which relates to Temporary, Transitional and Special Provisions.[542]
  • Article 370 is the only link that connects Jammu and Kashmir to India.[543]
  • To implement a plebiscite in Jammu and Kashmir one has to amend or abolish the article 370, which is very complex procedure. The leaders of Kashmir oppose any such measure.[544][545] Chief Minister of Jammu and Kashmir Mufti Muhammad Sayeed said, "Even Indian Parliament does not have power to scrap Article 370, which grants special status to Jammu and Kashmir under Indian constitution."[546]
  • The High Court of Jammu and Kashmirhas ruled that the Article 370 cannot be "abrogated, repealed or even amended." It explained that the clause (3) of the Article conferred power to the State's Constituent Assembly to recommend to the President on the matter of the repeal of the Article. Since the Constituent Assembly did not make such a recommendation before its dissolution in 1957, the Article 370 has taken on the features of a "permanent provision" despite being titled a temporary provision in the Constitution.[547][548]
  • Article 370 has emerged as the biggest obstacle in front of plebiscite because of its complex procedure of amendment and opposition from the leaders of Jammu and Kashmir.[543][549]
  • Article 370 allows its own death by permitting plebiscite. Article 370 was drafted while negotiations with Pakistan were still on. When Pakistan objected to Article 370 at the UN Commission Girija Shankar Bajpai, who was secretary general of Ministry of External Affairs, wrote to UNCIP in 1949 that Article 370 did not preclude plebiscite. Krishna Menon said to the UN Security Council in 1957 that if people of Kashmir voted to not stay with India then India’s duty at that time would be to adopt those constitutional procedures which would enable separation of Kashmir from India. That procedure is contained in clause 3 of Article 370, a presidential order to declare that the Article 370 will cease to be operative.[550]
  • A G Noorani argues that it is perfectly acceptable for a Kashmiri to contest the elections and recognise the Constitution while remaining committed to plebiscite and Independence and the reason for this is that the Constitution itself leaves the disposition of Kashmir open.[550]

"Nehru's Promise"

In telegram No.413 dated 28 October 1947 addressed to Prime Minister of Pakistan, Nehru wrote,[551]
"That Government of India and Pakistan should make a joint request to U.N.O. to undertake a plebiscite in Kashmir at the earliest possible date."
Nehru's statement in the Indian Parliament, 26 June 1952,[551]
"I want to stress that it is only the people of Kashmir who can decide the future of Kashmir. It is not that we have merely said that to the United Nations and to the people of Kashmir; it is our conviction and one that is borne out by the policy that we have pursued, not only in Kashmir but every where.
"I started with the presumption that it is for the people of Kashmir to decide their own future. We will not compel them. In that sense, the people of Kashmir are sovereign."
In his statement in the Lok Sabha on 31 March 1955 as published in Hindustan Times New Delhi on Ist April, 1955, Pandit Nehru said, "Kashmir is perhaps the most difficult of all these problems between India and Pakistan. We should also remember that Kashmir is not a thing to be bandied between India and Pakistan but it has a soul of its own and an individuality of its own. Nothing can be done without the goodwill and consent of the people of Kashmir."[552] There was also a White Paper on Kashmir published by Indian government regarding plebiscite in Jammu and Kashmir in 1948.
  • There are many such instances where Nehru made such remarks regarding plebiscite in Jammu and Kashmir.[552]Pakistan and separatist Hurriyat leaders repeatedly demand that Indian Government should fulfill "Nehru's Promise".[551][553][554]
  • Position of the Indian authorities on "Nehru's Promise": the Indian government takes the position that Nehru himself backed off from his promise in the late 1950s. Although he was Prime Minister for 17 years, he made no serious attempt for a plebiscite. His promises have been taken as a 'good political move'.[555]
  • The reason for not holding plebiscite was given by India's Defense Minister, Krishnan Menon, who said: "Kashmir would vote to join Pakistan and no Indian Government responsible for agreeing to plebiscite would survive.''[296]
  • Indian authorities say that Nehru's telegrams and speeches have no legal importance, nor it is compulsory to apply them as they were never passed by the Parliament of India. The white paper on Kashmir also does not have any legal importance as it was published in 1948 while the Constitution of India came into force into 1950 and defined Kashmir as an integral part of India as well as protecting the 'unity and integrity' of India. Constitution of India doesn't has any provision for plebiscite and 1948 white paper was against Constitution of India so it automatically got abolished.[556]
  • Indian authorities also say that, Nehru is not current Prime Minister of India, and policies are made on the basis of views of current Prime Minister and his cabinet which must get nod by both houses of Parliament of India.[557]
  • Any Prime Minister of India can't make decision of plebiscite unilaterally, bill of plebiscite must be passed in both houses of Parliament of India with a massive 2/3rd majority, then it requires assent by President of India, and if that decision is against Basic structure of Indian Constitution then Supreme Court of India can outlaw or abolish that decision.[557][558] Preamble and article 3 of part 2 of Constitution of Jammu and Kashmirsays 'Jammu and Kashmir is and shall be an integral part of the Union of India'. This constitution has been adopted by elected Jammu and Kashmir Constituent Assembly in 1956 when Nehru was Prime Minister of India.[559]
  • Daughter of Nehru, Indira Gandhi and his grandson Rajiv Gandhi were Prime Ministers of India but they themselves never did any attempt to implement their forefather's 'Promise'. Instead Indira Gandhi made 1975 Indira–Sheikh accord with Sheikh Abdullahwhich vanished all possibilities of plebiscite.[560]

Constitution of Jammu and Kashmir

"WE, THE PEOPLE OF THE STATE OF JAMMU AND KASHMIR,
having solemnly resolved, in pursuance of the accession of this State to India which took place on the twenty sixth day of October, 1947, to further define the existing relationship of the State with the Union of India as an integral part thereof, and to secure to ourselves-
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity; and to promote among us all;
FRATERNITY assuring the dignity of the individual and the unity of the nation;
IN OUR CONSTITUENT ASSEMBLY this seventeenth day of November, 1956, do HEREBY ADOPT, ENACT AND GIVE
TO OURSELVES THIS CONSTITUTION."
-Preamble of Constitution of Jammu & Kashmir.[561]
  • Article 3 of part 2 of Constitution of Jammu and Kashmir also says that 'Jammu and Kashmir is and shall be an integral part of the Union of India'.[561]
  • Ram Jethmalani, prominent lawyer, former union minister and chairman of Kashmir Committee said in Nov 2014: "The constitution of this state(Jammu and Kashmir) was not formulated by the Constituent Assembly of India, but by its Constituent Assembly of Jammu and Kashmir. That was a plebiscite. It is the Constituent Assembly of Jammu and Kashmir which incorporated some provisions of the Indian Constitution. You(Kashmiris) are not living under the constitution of India but under the constitution which was framed by the Constituent Assembly(of Jammu and Kashmir) which has willingly accepted a part of the Indian constitution, and in a way, enjoyed a plebiscite."[562][563][564] However, the resolutions 91 and 122 passed by United Nations, state that the formation of Jammu and Kashmir Constituent Assembly, or its activities, would not be considered to be a substitute for a free and impartial plebiscite, which is required for a final disposition of the state.[565][566]

Outlook Survey

  • In 1995 the first ever opinion poll was conducted in the Kashmir Valley by MODE which had been commissioned by Outlook. Altogether 504 adults (337 men, 176 women) were interviewed in Srinagar, Sopore, Baramulla, Bandipora, and Anantnag areas.[567]
  • 72% of respondents favoured independence, 19% favoured Pakistan and only 7% favoured a solution within Indian sovereignty.[567]
  • 80% of respondents said that a free and fair election would definitely not help solve the Kashmir problem while only 4% said that a free and fair election could help resolve the Kashmir conflict.[567]

Private Survey

  • London based leading think tank Royal Institute of International Affairs also known as Chatham House, conducted a survey both in Pakistan administered Kashmir and Indian administered Kashimir and released it in its report Kashmir:Paths to Peace in May 2010.[568][569][570][571]
  • It found that 50% of people in Pakistan's side of Kashmir favoured the accession of the entire state to Pakistan, 44% of people favoured independence, 1% wanted the accession of the entire state to accede to India while 1% favoured the status quo.[572]
  • In the Indian side of Kashmir, 28% of people expressed a desire for the entire state to accede to India, 19% favoured the status quo, 43% wanted independence while 2% said they wanted the entire state to join Pakistan.[573]
  • The survey showed that only 2% of the respondents on the Indian side favoured joining Pakistan and most such views were confined to Srinagar and Budgam districts. In six of the districts surveyed late last year by researchers, not a single person favoured annexation with Pakistan, a notion that remains the bedrock for the hardline separatist campaign in Kashmir.[568][571][574]
  • The survey also showed that only 1% of the respondents on the Pakistani side favoured joining India. In four of the seven surveyed districts of Pakistani Kashmir, the option of merging with India found no support while this option had a support rate of only 1–3% in the remaining three districts.[572]
  • However, views are highly poralised in each region. The main area of unrest has always been the predominantly Muslim majority Kashmir Valley, where the support level for Independence varies between 74% to 95% as found by the survey while support for accession with India varies between 2% to 22%.[575] However, Hindu majority Jammu and Buddhist majority Ladakh express high levels of satisfaction with Indian rule.
  • This 2010 survey too demonstrated that trend, with more than half the respondents on Indian side saying the elections had improved chances for peace(later in 2014, Jammu and Kashmir elections recorded highest percentage of voters turnout).[568][571]
  • Survey said – "These results support the already widespread view that the plebiscite options are likely to offer no solution to the dispute."[568][574]
  • "The results aren't surprising at all. I feel they re-emphasize the need to look beyond traditional positions and evaluate the contours of a solution grounded in today's realities," said Sajjad Lone on this survey, a former ally of the Hurriyat who unsuccessfully contested the 2009 Indian general electionsbut won in 2014 Jammu and Kashmir assembly elections
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