Author:
Publication: Organiser
Date: July 16, 2000
Justice Mohd Carimbhai
Chagla was a man of many parts. A jurist, judge, educationist, diplomat,
central cabinet minister and statesman-he excelled in every field through
sheer brilliance and honesty. This tallest personality of our times
belonged to that rare breed of Indian Muslim intellectuals, who were sincerely
committed to secular integration of Muslims in Indian mainstream and despised
cultural separatism. As a secular Indian, he felt Kashmir's future
lay in secular integration and he was opposed to Article 370. In
1965, in an attempt to rake up Kashmir issue internationally, Pakistan
filed a complaint in the Security Council that Kashmir was in open revolt
and that India was responsible for bringing about a crisis in the State
by her attempt to integrate it with India. Though Kashmir had no
connection with his Ministry, he was asked by the Prime Minister to present
India's view-point in the Security Council. He did this with great
distinction and sincere commitment. The Kashmir Sentinal reproduced
the speech of Justice M.C. Chagla on Kashmir, at the Security Council
on February 5, 1964. Extracts :
Kashmir is not a part
of India as a consequence of conquest. It is not even a matter of
one community hegemonising over another community. It is from time
immemorial that Kashmir has been a part and parcel of India. From
the stand-point of race and sociology the Indians and the Kashmiris are
one and undifferentiated. Though Muslims in this part of India constitute
a majority yet this majority adheres to the same religious creed that is
held by five crore Muslims of India.
This constitutes the
fundamental difference between India and Pakistan. Pakistan wants
to own the Kashmiris on the basis of commonality of religion. It
does not own them on the plank of nationalism, race, common traditions
and historical experiences. We bitterly oppose the doctrine that
does not differentiate between religion and secularism. People harbouring
diverse faiths and religions live in complete harmony in this country.
They enjoy the fundamental right of equality before law.
In general terms the
Indian Muslims are not a minority. Five crore people are merged in
the population of this country. They are the natives of this land.
They are Indians from sociological viewpoint. They have the full
citizenship rights. They can lay claim to any post and position.
The reality is that in India many Muslims are on positions of power and
pelf. Our culture is synthetic and syncretic in features. In
the weaving of cultural mosaic, Muslims have a definitive role. Ours
is a secular state. Men of divergent faiths have equal opportunities
and enjoy protection of law. We do not have first rate and second
rate citizens. Before law all are equal and do not get discriminated.
Kashmir became an indivisible
part of India when the ruler of Kashmir signed the instrument of accession
and the same was assented to by Lrod Mountbatten, the then Governor General
of India.
As per the Independence
Act of India passed by the British Parliament, the ruler of a state was
invested with the right to accede to either of the two nascent dominions
in accordance with his wishes. It is quite important to mention that
the Independence Act did not provide for the ascertainment of the views
of the state population. India as is well-known did not subscribe
to the two nation theory grounded in religion. Despite it, the country
was divided in the name of religion. On June 3, 1947 the British
government declared that the British India alone would be vivisected, not
the princely states. Thus the ruler of Kashmir alone was empowered
to make the choice regrarding the mergences of Kashmir into India.
Till August 15, 1947
most of the rulers of the states took a prompt decision on the issue of
accession. But the ruler of Kashmir prevaricated and did not settle
the issue expeditiously. Instead he entered into a stand still agreement
with India and Pakistan on communications, post offices and other allied
subjects to maintain the status quo. But Pakistan resorted to the
policy of exerting pressure on the ruler of Kashmir for mergence into Pakistan.
Under the aegis of Pakistan army, the Kabali hordes launched an all-out
attack on Kashmir. The state troops were incapable of meeting the
offensive. The ruler of Kashmir petitioned the Indian government
to accept Kashmir's accession to India which was endorsed by the National
Conference as the popular political party. The Governor General of
India, Lord Mountbatten, nodded his consent to the letter of request.
It is in this setting Kashmir's accession to India took place. Now,
Kashmir is an inalienable part of India.
On January 1, 1948, India
filed a plaint in the Security Council against Pakistan's aggression on
the soil of India. It is worth attention that Pakistan had aggressed
us and we were the petitioner. On December 22, 1947 the Indian Prime
Minister despatched an official communication to the Prime Minister of
Pakistan requesting him to desist from supporting the invading hordes in
their brutal aggression. In reply to the communication, the Pakistan
Prime Minister wrote that his government was doing its level best to pacify
the Kabaili hordes. On January 25, 1948, the Pakistan Foreign Minister,
backtracking from the earlier government position, said that Pakistan government
was in no way lending support to the invaders. What deserves attention
is that on both the occasions Pakistan did not in any way object to the
Indian Act of despatching troops to Kashmir. It did not try to justify
its presence in Kashmir nor did it refer to the claims of Pakistan in Kashmir.
It did not challenge the accession of Kashmir to India. Pakistan
was in know of the verity that its presence in Kashmir was against all
known canons of international law. So it did not try to justify its
act in Kashmir. This fact establishes that Pakistan stand that it
went to support the freedom movement in Kashmir is a white lie. It
put on a false cloak of morality to conceal its heinous act of aggression.
India received a reply
on January 15, 1948 from the United Nations to the plaint that it had filed
on January 1, 1948. The Pakistan government in its note to the United
Nations was blatant in telling that India had secured the accession of
Kashmir through fraud and violence. As per law, if fraud and violence
are not proved, in that case accession is completely valid and binding.
In reference to fraud
and violence it needs be made plain clear that on behalf of Government
of India Lord Mountbatten had conveyed to the Maharaja that if he wished,
he could accede to Pakistan and the same would not be construed as an unfriendly
act. This also must be kept in view that Pakistan equally admits
that not a single Indian soldier put his foot on the Kashmir soil till
the accession of Kashmir to India was a fact in law and deed. It
was actually Pakistan which unleashed a deluge of violence in Kashmir.
The fact remains that violence and fraud unleashed by Pakistan forced the
Maharaja's hands to sign the document of accession with India.
Another point raised
by Pakistan was that India got the instrument of accession signed by the
Maharaja at a time when people had revolted against him and his rule in
Kashmir had nearly dwindled and eclipsed. All this is a malicious
canard. It was at the instigation of Pakistan government that the
tribal hordes aggressed the land of Kashmir. The Pakistan army lent
full-scale support to these tribal invaders. Due to this aggression
the Maharaja was compelled to seek for assistance from India at this hour
of severe crisis. Kashmir unconditionally acceded to India.
Pakistan often states
that the autocratic ruler of Kashmir signed the instrument of accession.
Pakistan should explain if those rulers who acceded to Pakistan were wedded
to democracy and were democractically elected by the common people.
The validity of Maharaja's
act of signing the instrument of accession cannot be challenged on the
grounds of religion. India never subscribed to the view that the
Hindus and the Muslims are two separate nations. Kashmir is the guarantee
of our secularism and a symbol of it too.
Kashmir is an inalienable
part of India. It is a member of the Indian federal structure.
To defend it against aggression is our prime duty and responsibility in
the same manner as it is the responsibility of Government of India to maintain
law and order in Delhi, Mumbai, Calcutta or any other component of India.
It is often forgotten
that Pakistan came to the Security Council as an aggressor. It still
maintains its tight choke-hold over a large portion of Kashmir. It
has defied the Security Council. Now it does not only consider its
aggression on Kashmir as lawful, but also, has the temerity to challenge
Kashmir's accession to India. The Security Council had accepted the
fact of Kashmir's accession to India. It was on this plea that the
presence of Pakistan in Kashmir was proclaimed as unlawful and in contravention
of international law.
Now Pakistan is presenting
its role and the Indian positions on Kashmir from distorted perspectives.
Under the guise of innocence it attributes aggressive motives to us.
Pakistan has been an aggressor throughout the Kashmir dispute. It
is an aggressor even today. It has continued with its aggression.
It does not have any right to complain against India gathering its act
of defending its inalienable part of territory against aggression.
In reality, the status
of Kashmir or Kashmir's emergence into India is not a moot issue.
The real issue is Pakistan's aggression on Indian territory. The
aggression that was launched in 1947 continues unabated even now.
If Security Council is keen to take up the Kashmir problem for debate,
it must discuss the aggression of Pakistan on Kashmir and the methodologies
of its withdrawal.
