In 1947, the British decolonization plan for India required the partition of the subcontinent into two successor states, India and Pakistan. However, the partition plan was applicable only to the eleven provinces of "British India" – areas directly under British sovereignty as of June 3, 1947. In addition, the Indian subcontinent comprised some 562 "princely states" of varying size that enjoyed defense agreements with the paramount power and remained under the nominal control of their hereditary rulers.
The State of Jammu and Kashmir was an example of the latter. The territory comprising it had been sold by the East India Company to Maharaja Gulab Singh for a sum of 7,500,000 rupees in 1846 in an agreement titled The Treaty of Amritsar. Between 1846 and 1947 Kashmir remained under the direct though nominal control of Gulab Singh and his successors as their hereditary possession.
As British withdrawal from India became imminent, the princely states were given the choice to either resume their independent status or join Muslim-majority Pakistan or Hindu-majority India. Most of the decisions by the ruling princes were made based on geography or religious majority. However, Kashmir was a problem because it was a Muslim-majority state ruled by a Hindu prince. The British left it for future negotiations when the Maharaja of Kashmir failed to decide whether to accede to either India or Pakistan.
The conflict in Kashmir has its origins in the state's accession to India in 1947.
Maharaja Hari Singh, the then ruler of Kashmir, signed a standstill agreement with Pakistan but took no decision on the state's accession. A month after the end of British rule on the subcontinent, Kashmir was invaded by Kashmiri Sudhan tribesmen encouraged by Pakistan. Unable to defend his state, the Maharaja of Kashmir sought India's assistance, and on October 26, 1947, signed an Instrument of Accession, paving the way for Indian soldiers to come to his assistance. The first war between India and Pakistan had begun.
In January 1948, Jawaharlal Nehru, then prime minister of India, requested that the U.N. play a role in the resolution of the Kashmir dispute. The U.N. Security Council passed a resolution on August 13, 1948, calling for the immediate cessation of hostilities by India and Pakistan as well as a truce agreement so that both Indian and Pakistani forces could withdraw from the state of Jammu and Kashmir. It also recognized the right of the Kashmiri people to determine the future status of Kashmir.
After a ceasefire was called, a third of the Kashmiri state remained under Pakistani control. The rest became India's Jammu and Kashmir state. Kashmir was divided by a Line of Control. The contour of this line changed slightly after later wars, but has remained more or less the de facto border between Pakistan and India in Kashmir.
Through mutual agreement India and Pakistan successfully lobbied for an amendment to the 1948 U.N. resolution, and the U.N. passed another resolution on January 5, 1949, in which the Kashmiri people were only given the right to accede either to India or Pakistan; there was no mention of their having a right to become an independent nation.
In January 1949, the United Nations Military Observer Group in India and Pakistan (UNMOGIP) was deployed to supervise the ceasefire between India and Pakistan. UNMOGIP's functions were to investigate complaints of ceasefire violations and submit finding to each party and to the U.N. secretary-general. Under the terms of the ceasefire, it was decided that both armies would withdraw and a plebiscite would be held in Kashmir to give Kashmiris the right to self-determination.
The primary argument for the continuing debate over the ownership of Kashmir is that India did not hold the promised plebiscite. In fact, neither side has adhered to the U.N. resolution of August 13, 1948: while India chose not to hold the plebiscite, Pakistan also failed to withdraw its troops from Kashmir as was required under the resolution. Instead, India cites the 1952 elected Constituent Assembly of Jammu and Kashmir, which voted in favor of confirming accession to India. New Delhi also says that since Kashmiris have voted in successive national elections in India, there is no need for a plebiscite. The 1948-49 U.N. resolutions can no longer be applied, according to India, because of changes in the original territory, with some parts "having been handed over to China by Pakistan and demographic changes having been effected in Azad Kashmir and the Northern Areas."21
India's argument for the legitimacy of its claim to all of Kashmir, including the portion administered by Pakistan, is based on the Instrument of Accession. Similar instruments determined the distribution of all princely states in the 1947 partition; questioning the accession of Kashmir would (the argument goes) imply unraveling the constitutional and legal basis for the creation of India and Pakistan.22
Pakistan, however, has always questioned the legality of Kashmir's accession and said that India had agreed to the U.N. resolutions calling for self-determination after the Instrument of Accession had been signed. India also overruled the same exercise of powers by the Muslim ruler of the Hindu-majority state of Hyderabad – the largest and richest of the princely states –arguing that the people's right of self-determination was paramount when the Nizam of Hyderabad sought to declare independence for his state. Hyderabad was forced into the Indian Union through "police action" in 1948. Similarly, the Muslim rulers of the Hindu-majority states of Junagadh and Manavadar signed instruments of accession to Pakistan but were overruled by the Indian government, which seized the states on grounds of geographical contiguity and religious majority.
Pakistan asserts that India cannot argue self-determination and the will of the majority in other instances and ride roughshod over the same principle in Kashmir. Hence, in contrast to India, which considers the part of Kashmir under its control to be part of the Indian Union, Pakistan does not exercise formal sovereignty over the portion of Kashmir it controls. Rather, the territory is theoretically self-governed through its own interim constitution pending a plebiscite to determine the status of the historical state of Jammu and Kashmir.
Above all, both Islamabad and New Delhi see Kashmir as legitimizing the competing political frameworks that led to the partition of India. Islamabad believes that Muslim-majority Kashmir will choose to be part of Pakistan and it will justify, once again, the ideological basis for the 1947 partition that was predicated on the assumption that Muslims and Hindus were separate nations. India, for that same reason, is unwilling to let go of Kashmir: a Muslim majority state is proof that India is secular.
Since the British left the subcontinent almost sixty years ago, India and Pakistan have fought two wars specifically over Kashmir, in 1947-48 and in 1965. In 1971, a third war between the two countries led to the secession of East Pakistan, which became independent as Bangladesh. That truncation of Pakistan further exacerbated the distrust between the two countries and drives Islamabad's policy on Kashmir. Since India had helped in dividing Pakistan, it became a priority for Islamabad to ensure unity through an anti-Indian Islamic ideology.
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