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August 29, 2000

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E-Mail this column to a friend Arvind Lavakare

An e-mail to lkadvani@nic.in

Dear Mr Advani

This is about J&K and therefore within your portfolio. However, since Prime Minister Vajpayee seems to talk as much if not more than you do on the subject, I wanted to send him a copy of this. What has prevented me from doing so is that, strangely, the BJP's Mumbai offices have only your e-mail address, not Mr Vajpayee's. Whether that fact tells its own story is a different matter.

Now to the basic issue.

I recall that when the AIADMK was an ally of yours, it had taken Ms Jayalalitha to draw your attention to a significant press report. Obviously, you don't have the time to read newspapers even selectively, and your staff, it seems, is not trained to put up important news clippings for your eyes. Hence, I am today entreating you to read the article by Narendra Singh Sarila published on the edit page of The Times of India, Mumbai edition, dated August 14, 2000.

That article, based on the US State Department's secret archives, establishes the following:

  • In October 1948, General George Marshall, US Secretary of State, was convinced that J&K's accession to India was valid and he therefore refused to toe the British foreign secretary's line of recognising Pakistan's occupation of J&K's northern territories including Gilgit.

  • Dean Rusk, assistant to General Marshall, upheld the validity of J&K's accession to another British delegation that visited him in 1948.

  • It was Britain that played the perfidious role of letting Pakistan continue to occupy J&K's northern territories as a bulwark against the feared invasion by the Soviet Union, the argument being that Islam is incompatible with communism.

  • The change in US policy towards India's legally rightful claim to the entire J&K state came only after Nehru was persuaded by Mountbatten to agree to a ceasefire and to consider partitioning J&K leaving Gilgit in Pakistan.
  • I am imploring you to brief the PM immediately on the above so that on his forthcoming visit to the USA, he can convince President Clinton, George Bush and others about how the American nation's attitude towards India's rightful claim to the whole of J and K has, for over 50 years, been contrary to what their own records reveal its conviction first was.

    Secondly, there is pain in many an Indian's heart when Pakistan and several others, including Indians themselves, talk of India defying the UN resolutions on plebiscite and of denying the J and K people their right of self-determination. They do so because the Government of India has been na´ve in just not realising the critical importance of widely circulating a thorough fact sheet about India's case on J&K.

    One can understand why the Congress didn't do that --- it was incarcerated by the monumental blunder of its deity, Jawaharlal Nehru, in committing the nation to a plebiscite in J and K without having the common sense and decency of consulting even his home minister, leave alone his law ministry or Cabinet on the subject. And the Indian media of his era were nowhere near as nosy and hyper-critical as they are today; besides, our press in those years (there was no TV then, remember) had such a soft corner for Nehru that it would probably have allowed him to get away with the murder of Mountbatten for Edwina's sake.

    But that is no reason why the BJP-led governments should have kept quiet about the matter. By now, you should have repeatedly told the entire world the whole real story about J and K as was actually promised by Prime Minister Vajpayee when he met the Indian American community in New York on September 28, 1998.

    However, better late than never. We still possess Srinagar, thank god. And the Times article by Sarila ought to be fully exploited by the PM on his forthcoming visit to the USA. To strengthen our country's case, kindly allow me to draw your attention to the following excerpts from the invaluable, but little-known, book of the present Chief Justice of India, Dr A S Anand, titled The Constitution of Jammu & Kashmir -- Its Development & Comments. (Universal Law Book Publishing Company, New Delhi, 3rd edition, 1998.)

    Below then are those invaluable assertions that simply must be told to the whole world in a loud and clear manner at the United Nations and from every other platform, national and international. (For quick reference, the relevant page number in Dr Anand's book is given in brackets.)

  • "Let us now consider whether the Maharaja (of J&K) had the right to sign the Instrument of Accession for his State. During the British Administration in India, the Crown dealt with the Maharaja alone. Also, when the Government of Pakistan concluded (on 15th August 1947) a Standstill Agreement with the Maharaja, it did so on the basis that the Maharaja was the sole representative of the State. These associations were perfectly justified for, in a monarchical form of Government, it is the Monarch who personifies and represents the State. (Reference United States v. Wagner 1867). And the Government of India, in its relations with the Maharaja, acted in accordance with law and recognised international practice." (Pg. 79)

  • "The courts will not look behind the document of the Instrument of Accession and the Supreme Court has held that the 'act of the execution of the Instrument of Accession by the Ruler and its acceptance by Governor-General are both Acts of State into whose competence no court can enquire'." (Reference Virendra v. State of U.P.1954).(Pg. 80)

  • "If there is a moral obligation to ascertain the wishes of the people (what the then Maharaja of Kashmir never agreed to do), the Indian Constitution has no provision for such a step..." (Pg. 80)

  • "The accession of Kashmir was an issue arising out of the partition of India and the negotiations preceding it. It is not within the competence of the Security Council to reopen this question either at the instance of India or of Pakistan. As such it would seem that the undertaking given at the floor of the Security Council is wholly ultra vires the Independence Act (of the British Parliament) and the constitutional powers of the two Dominions." (Pg.84)

  • "This position brings one to the conclusion that to hold a plebiscite would be repugnant to the Constitution of India and Kashmir." (Pg. 85)

  • "Kashmir acceded to India in the manner prescribed... This accession was both complete in law and in fact but the Indian leaders had agreed to give the people of Kashmir a chance to finalise their future affiliations...In 1951, the State Constituent Assembly was convened to give its reasoned conclusions regarding accession (Sheikh Abdullah's phrase in his inaugural address to the Constituent Assembly). The dispute regarding Kashmir had come to a standstill at the U.N.O. The Assembly in Kashmir, in order to end the uncertainty about the future of the State, after due consideration, ratified the State's accession to India in 1954."(Pg. 202)

  • "... when the Constitution of Kashmir was being framed, it was emphasised that it was in accordance with the wishes of the people that the Constitution was being framed. The words We, the people of the State of Jammu and Kashmir (in the Preamble of the J&K Constitution) echo the opening words in the preambles of USA, Eire and India. The source of the Constitution of Kashmir is the will of the people who have achieved the right to frame their own constitution... (Pg.199)

  • "In fact we find... that the (J&K) Constitution has been enacted, apart from other things, to further define the existing relationship with the Union of India as an integral part thereof. Also, Section 3, declaring the State an integral part of India has been put beyond the powers of the Legislature to amend." (Pg. 202).

    The above extracts from Dr A S Anand's book (based on his dissertation that was awarded the Ph.D. degree by the London University in 1963) have never till now been used by any government in New Delhi to present its case to Indians, to the UN and to the major powers of the world that go on harping on the UN resolution of plebiscite while forgetting everything else, including that the same UN resolution required Pakistan to first withdraw its tribesmen and nationals from the J and K territory they had entered in October 1947 for the purpose of fighting. Those extracts, combined with the revealing material from the US State Department's archives now made available, our position on J&K becomes even more unassailable in the eyes of the USA.

    Under the circumstances, Mr Advani, I implore you to quickly arrange a meeting at which our Chief Justice can brief the PM on all the legal and constitutional nuances of our case on J&K. Our attorney general should also be present at the meeting. (In fact, the two legal luminaries must accompany the PM to the US.) And with your characteristic precision guiding that meeting, you all can work out a watertight brief to at last convince the US of our case on J and K. If the US raises the Nehru government's commitment to plebiscite, it will have to be told that -- apart from Pakistan's above failure to comply with the first requisite of the UN resolution -- India's old commitment is like the Clinton administration's signature on the UN's CTBT: not binding on the nation until constitutionally approved.

    Our fanatically Islamic neighbour will, of course, never accept legality and its hatred of us is a guarantee that it cannot be expected to honour a bilateral pact with us excepting the one that first gifts them J and K. Its betrayal after the Lahore Agreement of 1999 is ample proof of that. We will, therefore, have to give up our long-held belief in solving the J and K problem through bilateral accords. The time has come to accept international intervention in the matter. And now is the best time to press for it when the world accepts Pakistan as a source of terrorism and us as a mature nation on the path of peace, democracy and economic growth through liberalisation. The time has therefore come to persuade the US to pressurise Pakistan into accepting an international agreement.

    The following seem to be the only four alternatives for such an international agreement:

    1. Pakistan returns to India that portion of J&K held by it since its invasion of that State in October 1947, or

    2. Pakistan Occupied Kashmir (PoK) should be declared an independent sovereign entity under a full-fledged UN administration for the first five years, with people from our part of J&K being allowed to migrate there in that period, or

    3. A UN-supervised plebiscite within a year in PoK to determine whether residents of Kashmir origin presently living there want PoK to join Pakistan or India or be independent, or

    4. PoK is proclaimed a part of Pakistan and a permanent international border drawn between India and Pakistan along the existing LOC with $ 5 billion as compensation payable by Pakistan to India in three years from the date of such an agreement.

    Think over it, Mr Advani, but remember to discuss the options with all the other political parties. Without their support, the J and K conundrum just cannot be solved.

    Meanwhile, apologising for this long mail, I remain

    Yours faithfully

    An Indian citizen

    Arvind Lavakare

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