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Pakistan has the legitimate claim to

by Steven Meurrens

At the beginning of 2002, Pakistan and India appeared to be on the

verge of a nuclear war. This was the latest stage in over fifty years of
conflict between the two nations. The greatest issue in their
relationship has been the disputed province of Kashmir. The
hostilities began in October 1947, when the Hindu ruler of Kashmir
signed a treaty giving his Muslim province to India, which is
predominantly Hindu. Pakistan’s rejection of this agreement would
lead to a war with India shortly thereafter. The province would be
partitioned between India and Pakistan in 1949, and the established
border remains today. Both nations still claim all of Kashmir. The
situation has been complicated by the religious differences in the
region between Muslims and Hindus. Further exemplifying the
problem are the various versions of history that both sides present in
their arguments for ownership of Kashmir. When the previous and
current situations are analyzed, it is clear that it is Pakistan that has
the legitimate claim to Kashmir, as India’s claim is based on fraud
and violence.

Kashmir is located in the northern part of the Indian Subcontinent,

occupying an area of 220,000 km². As per the United Nations cease-
fire agreement that partitioned Kashmir on January 1, 1949, India
occupies a majority of the disputed region. India has organized its
territory as the state of Kashmir and Jammu. The capital is Srinagar.
Pakistani controlled Kashmir is referred to as Azad (free) Kashmir.
The capital is Muzaffarabad. Historically, the significant districts of
Kashmir are the Poonch, Srinagar District, and Mirpur. The current
population of the entire region is thirteen million, of which
approximately sixty-four percent are Muslim. The demographics have
barely changed since the dispute began in 1947. In 1941, of the four
million people living in Kashmir, over 3,200,000 practiced Islam.
Though a clear majority of the citizens were Muslim, the region was
ruled by a Hindu prince.

The Maharaja Hari Singh presided over Kashmir during the end of
British imperialism in South Asia. During the British partition of the
Indian Subcontinent in 1947, the princely states were supposed to
accede to either India or newly created Pakistan. Hari Singh wanted
neither, and delayed his decision. Both Jawaharel Nehru, the leader of
India, and Mohammed Ali Jinnah, the founder of Pakistan, urged the
maharaja to join their respective nation. In early September, a Muslim
rebellion seeking unity with Pakistan erupted in the Poonch district.
India accused Pakistan of sending Pashtun fighters into the Poonch to
sabotage the pending decision of Hari Singh. By mid October, the
rebel army was only four kilometres away from capturing Srinagar. It
was at this point of desperation, that Hari Singh reportedly signed the
Treaty of Accession with India. The Indian army would enter the
province the same day, and would be at war with Pakistan within a
month. The validity of this treaty would be the basis of both nations’
claim to Kashmir.

Historians often disagree with one and other about the interpretation
of the dispute in Kashmir. There are three main concepts that are used
by supporters of India to justify India’s occupation of Kashmir. The
first is that because of the Treaty of Accession, India’s actions and
claim to Kashmir are legal. A.G. Noorani, a lawyer in New Delhi,
whose Indian bias has clouded his judgment about the Indian claim,
and author of The Kashmir Question, summarized India’s long-
standing stance regarding the treaty in his book’s introduction:

“ Kashmir is legally [because of the Treaty] a part of India, Pakistan

is therefore an aggressor and must be asked to vacate her aggression;
having become a part of the country, Kashmir cannot claim self-
determination; her accession is final and irrevocable as there is in law
no such thing as a provisional accession.”

The appeals India has made to the United Nations all reflect this
attitude. As Nehru argued in a complaint issued to the UN in 1948,
because India has a document that states Kashmir belongs to India, all
Pakistani claims and actions in the region are void and aggressive, as
well as demonstrating a blatant disregard to international law and

In an effort to gain public support from the international community,

India has rallied behind two popular slogans. These are: democracy
and multi-culturalism. As an article in the January 19th, 2002, edition
of the Economist indicated, these have had considerable success in
brandishing Pakistan as an evil, rogue state. After all, India promotes
itself as a secular democracy. India embraces its minorities. Pakistan,
on the other hand, has always been an Islamic State, has been ruled
by successive military governments, and tarnished by civil war. The
Kashmiri people, India argues, would be better suited in a secular
nation that embraces the rule of law. Legality. Democracy. Multi-
culturalism. These are the three concepts that form the basis of the
Indian claim to Kashmir. The relevance and truth of these ideas are

Historians supportive of the Pakistani claim believe that the Treaty of

Accession is void because of the conditions and historical
discrepancies pertaining to its signing. India acted aggressively and
irresponsibly in forcing the agreement with a leader that did not
represent the majority of his population. The Maharajah was a Hindu
prince. During the time of accession, seventy-seven percent of the
Kashmiri people were Muslim. Indian historians, on the other hand,
have debated even the importance and truth of this fact. Prem
Shankar Jha, editor of the Hindustan Times, and author of the book
Kashmir: 1947, writes that the figure is exaggerated and misleading
because the Muslims of Kashmir “belonged to at least three
frequently antagonistic sects, two-thirds sharing a strongly synergetic
tradition of Islam that had a good deal in common with the Bhaki
tradition in Hinduism.” Mushtaqur Rahman, author of the brilliant
analytical Divided Kashmir, counters the relevancy of this claim by
stating that while the Muslims consisted of different sects, their
beliefs separated from them other Muslims no less so than the
differences between Kashmiri Hindus and Indian Hindus. Indeed,
these Hindus possess their own dialect, dress, and food. In response
to questions over why the demographics of Kashmir have changed
(Kashmir is now estimated to be 64% Muslim.), he reminds readers
that it is estimated that over 4 million Muslims have fled Indian
occupied Kashmir since 1947. Despite the exodus, civilians in Indian
controlled Kashmir still have great ethnic similarities to Pakistan, as
noted by famed historian Richard Reeves, in Passage to Peshawar
describing his experience in the region: “When I crossed from Azad
Kashmir, in Pakistan, to Kashmir in India - across the disputed
northeastern border established after the countries’ 1948 war - the
people looked the same. They should have, because many of them
were cousins of Pakistanis and practiced the same religion.” In the
end these discrepancies and arguments pertaining to how Islam is
divided into many types is merely nitpicking by supporters of India,
highlighting facts that have no significance to the larger picture. In a
census taken in 1941, of 4,021,698 people living in the entire region
of Kashmir, 3,101,247 of them were Muslim. In the turbulent
Kashmiri Valley (site of most of the recent violence in Kashmir) 94%
( 1,615, 478 to 1,728,705) of the citizens were Muslim. Under the
provisions of the divisions of the Indian Subcontinent, regions that
were mostly Muslim were designed to accede with Pakistan. Thus, in
the natural course of history, if had India not acted irresponsibly, and
the Kashmiris' had a leader that represented their interest, Kashmir
would have gone to Pakistan.
The Maharajah Hari Singh never represented the will of his subjects,
creating tension between the Hindu rulers and the Muslim population
of Kashmir. Muslims in Kashmir detested him, as they were heavily
taxed and had grown tired of his insensitivity to their religious
concerns. The Dogra rule (the name of the municipal governments)
had excluded Muslims from the civil service and the armed services.
Islamic religious ceremonies were taxed. Historically, Muslims were
banned from organizing politically, which would only be tolerated
beginning in the 1930’s. In 1931, in response to a sermon that had
tones of opposition to the government, the villages of Jandial, Makila,
and Dana were ransacked and destroyed by the Dogra army, with
their inhabitants burned alive. A legislative assembly, with no real
power, was created in January, 1947. It issued one statement that
represented the will of the Muslim people: “After carefully
considering the position, the conference has arrived at the conclusion
that accession of the State to Pakistan is absolutely necessary in view
of the geographic, economic, linguistic, cultural and religious
conditions…It is therefore necessary that the State should accede to

This is one of the rare instances that an elected block of the people of
Kashmir had been given the chance to speak. Representing the
subjects who elected them, they sought accession with Muslim
Pakistan. Prem Nath Bazaz, founder of the Kashmir Socialist Party in
1943, a reliable primary source of history, reiterated that a majority of
Kashmiris were against the decision of the Maharajah in his book,
The History of The Struggle of Freedom In Kashmir. He writes, “The
large majority of the population of the State, almost the entire Muslim
community and an appreciable number of non Muslims was totally
against the Maharjah declaring accession to India.” This statement,
and the decision reached by the legislative assembly are important
because they dispel any belief that the Kashmiris' religious ties with
Pakistan did not necessarily indicate a will to unite. Indeed, the ethnic
bond between Kashmir and Pakistan influenced a majority of the
people to seek accession with Pakistan. The Hindu Maharajah would
not listen, and continued to delay his decision about which nation to
join. Still, even though Hari Singh’s actions were wrong, they do not
compare to the deplorable pressure and tactics applied by India to
capture Kashmir.

India relentlessly pressured Hari Singh to accede to India. While

Pakistan agreed to sign a standstill agreement that would continue
trade, travel, and transportation with Kashmir, India refused until the
Maharajah did as they wished. India encouraged neighbouring
provinces to pressure Kashmir to accede to India. Nehru said that if
Kashmir joined Pakistan the chances of resuming any diplomatic or
economic relationship with India would be remote. Pakistan took no
such action. While the traditional view has been that Nehru sent his
army into Kashmir only after the Treaty of Accession, there is
growing evidence that this is not true. Alaistar Lamb, author of a
series of books on Kashmir, has discovered evidence based on
declassified military papers that India had Patalia gunners at the
Sringar airport by October 17 1947, and has scoffed at the Indian
apologists who propose that India’s invasion of Kashmir was the
triumph of improvisation. Instead, he states that India had troops
mobilized for an invasion of Kashmir by October 25th This would
mean that India’s army was in Kashmir before the decision of the
Mahrajah. With India’s army already in Kashmir it is obvious why
the Maharajah would hand his country over to India. Because of the
injustice displayed by India, the Treaty of Accession, if it was even
signed, is nullified and void.

India claims to represent democracy in the dispute with Pakistan over

Kashmir. If upholding democracy was indeed India’s motivation in
their actions over Kashmir, one has to question why a plebiscite has
never been issued. The Kashmiris have always demanded one, and
India has always resisted. Even Nehru has conceded that Kashmiris
do not want to remain under Indian occupation. When asked about
never holding a plebiscite in Kashmir in 1965, Nehru responded,
“Kashmir would vote to join Pakistan and we would lose it. No
Indian government responsible for agreeing to a plebiscite would
survive.” This logic is more fitting for describing an autocracy, not a
nation claming to represent democracy. As for the issue of whether
Pakistan is a theocratic state, it certainly cannot be, as its political
power is not held by priests and religious heads claiming to represent
a God. Islam may be the only official religion of Pakistan, but that
does not warrant the title of a totalitarian theocracy. The historians
supporting India have no grounds for saying that India has behaved
better because it states itself to be the only democracy.

Apologists for Nehru and the successive governments of India have

also made the peculiar claim that if Kashmir were to vote to succeed
from India, it would lead to other revolts and demands for
independence in other dissatisfied regions of India. Victoria
Schofield, author of the comprehensive Kashmir in the Crossfire, has
researched and analyzed the response of Kashmiris bewildered that a
“secular democracy” would use this argument. Kashmiri
independence groups have pointed out that it is the only region in
India that has already been granted a plebiscite (that never
materialised) in a United Nations Security Council Resolution that
was actually approved by India. Even if politicians are worried about
the possibility of India disintegrating because of losing Kashmir, this
does not warrant the suppression of the Muslims in Kashmir, and the
Kashmiris are indeed oppressed. Amnesty International has
repeatedly decried atrocities committed against separatists in
Kashmir, and they estimate that 34,000 civilians have been killed.

India basing its claim on adhering to diplomatic rule of law and the
decision of a nation’s leader is made even more laughable because of
its actions in Hyderabad and Junadgh. Hyderabad, located in central
India, was the opposite of Kashmir. There, a Muslim ruled over a
Hindu majority, and did not want to join India. The Indians did not
accept the leader’s wishes and invaded Hyderabad in September of
1948. In Junadgh, the situation was similar. Nehru forced the ruler of
Junadgh to hold a plebiscite after the latter claimed that he could not
make the decision because he did not represent his people. That
Nehru agreed to the principles of self-determination and ethnicity
when it served his interests, and not in Kashmir, illustrates the
hypocrisy of the Indian claim to Kashmir. As Mushtaqur Rahman
reiterates in his book, it even renders the Indian claim illogical:

“Their arguments were that it made no sense geographically, that a

ruler had acceded to a region of different religion then his people.
Logically then, India should have supported the Muslims majority of
Jammu and Kashmir and let them join Pakistan.”
Mr. Bazaz was also mystified by the hypocrisy in India’s actions, as
he writes:

“Obviously in accordance with the basic principle governing the

partition the consideration of the religion professed by people in
different parts… the Jammu and Kashmir State, whose population is
preponderating (77 percent) Muslim - almost the same as is the ratio
of Hindus in Junagad and Hyderabad to the total populations of these
States - should legitimately and unconditionally belong to Pakistan
and must in fairness go to it.”342

What the hypocrisy and determination of India to take Kashmir at the

expense of logic and the will of Kashmiris does illustrate is the
underlying motivation of India to serve Nehru’s interests. Nehru’s
family heritage originates in Kashmir. This appears to be one of the
only two possible reasons India has so forcefully demanded it be
given Kashmir. The second cause is that of deep resentment over the
creation of Pakistan.

If one were to base India’s claim on Kashmir on actual principals that

are present in its actions, they would be: pride, resentment, and
aggression. The government of India’s desperate attempt to validate
its hold on Kashmir is merely just India rejecting the concept of
Pakistan in general. Nehru and the government of India’s rejection of
Pakistan is well known. Liaquat Ali Khan, the vice-president of
Pakistan during accession, reiterated this in a telegram to Nehru when
he wrote, “India never wholeheartedly accepted the partition scheme
but her leaders paid lip service to it merely in order to get the British
troops out of the country. India is out to destroy the state of Pakistan .
Indeed, this attitude would explain why India visibly rejected the
mandate of the creation of Pakistan, as well as the common sense of
ethnicity in Kashmir. The Indian resentment of the creation of
Pakistan is not just a rumour started by Karachi. Even A.G. Noorami,
sympathetic to the Indian claim to Kashmir, writes, “We are a secular
State and we do not believe in the “two-nation” theory. But is it
necessary for that purpose to retain Kashmir in India against the will
of her people?” Perhaps most telling of this pride and hatred towards
Pakistan is the response given by a representative of the Indian
government to peace talks offered by Pakistani President Jinnah,
which was, “for the prime minister to come crawling to Jinnah, when
India was stronger would be a step which the Indian people would
never forgive.” With such sentiment, it is little wonder that peace in
Kashmir has been hard to achieve.

India continues to use its military superiority over Pakistan to resist

negotiating any terms of peace with Kashmir. Unfortunately, as noted
by Time correspondent Edward Desmond, the international
community shows no signs of challenging India’s claims. “No
country was willing to risk its entire agenda with New Delhi over the
Kashmiri cause, especially when it was clear that New Delhi had no
intentions of backing down.

Due to the contradictions and falsifications that India has used to

present its argument towards ownership of Kashmir, and its inaction
towards holding a plebiscite in Kashmir, it cannot reasonably be
argued that India has the more legitimate claim to Kashmir. In reality,
India has kept its army in Kashmir to maintain hostile relations with
Pakistan because of the formers rejection of the “two-nation” theory
that created Pakistan. India cannot claim to represent the interests of
the Kashmiri people and their democratic rights because it refuses to
let them decide their future. Its relentless pressure on the Maharajah,
as well as Hari Singh’s inability to properly lead, nullifies the
relevance and significance of the Treaty of Accession. That the Indian
army landed in Kashmir even before Hari Singh had conceded his
nation to India proves it never intended to respect his decision
anyways. India has ignored the rules set out in the partition of the
sub-continent, dividing the region by ethnicity. Instead, the leaders of
India have sought only to use Kashmir to illustrate their superiority in
the subcontinent. As long as India continues to act on flawed and
aggressive notions, the Kashmir conflict will not be resolved.


1. Alastair, Lamb. Kashmir : A Disputed Legacy. Hertingfordbury:

Roxford Books, 1991.

2. Bazaz, Prem Nath. The History of the Struggle for Freedom in

Kashmir. New Delhi. Kashmir Publishing Company. 1954.

3. Noorani, Abdul Gafoor Abdul Majeed. The Kashmir Question.

Bombay: Manaktalas, 1964.

4. Rahman, Mushtaqur. Divided Kashmir : Old Problems, New

Opportunities for India, Pakistan, and the Kashmiri People. Boldour,
Colorado: Lynne Rienner Publishers, 1996.

5. Reeves, Richard. Passage to Peshawar : Pakistan: Between the

Hindu Kush and the Arabian Sea. New York : Simon and Schuster,

6. Jha, Prem Shankar. Kashmir 1947 : Rival Versions of History.

Bombay: Oxford University Press, 1996.

7. Schofield, Victoria. Kashmir in the Crossfire. New York: I.B.

Taurus, 1996

8. “The Standoff at the Roof of the World.” The Economist. 19

January, 2002.