The state of J&K being a princely state, its Hindu ruler was empowered under the Indian independence Act 1947, to accede either to India or Pakistan, keeping in view the demographic composition of its population. The working committee of All Jammu and Kashmir Muslim conference with a predominant majority of Muslim seats in the Kashmir Assembly had passed a unanimous resolution on 19th July 1947 demanding the ruler of the Muslim majority state to accede to the new dominion of Pakistan in making. Realizing the ground realities, the ruler entered into a standstill agreement with Pakistan. Pakistani Flag was hoisted on most of the federal offices in the state on 15 August. The movement for the liberation of the entire state started gaining momentum. Simultaneously, a government in exile was announced by state subjects on 5th Oct. ‘47 at Rawalpindi under the headship of Ghulam Nabi Gilkar.
When the pressure of the local population mounted on the ruler for accession to Pakistan, he fled to his home town Jammu leaving the summer capital of the state. In Jammu, he was forced to sign a conditional accession agreement with India which was conditionally affirmed by the Governor General of India on 27th October stipulating that “— the question of the state’s accession should be settled by a reference to the people. when normalcy prevails in the state.”
When 1/3rd of state territory came under the control of freedom fighters, a full-fledged sovereign Government was formed on 24th Oct ‘47, on the territories, in the suppression of the Govt in exile, under the presidentship of Sardar Muhammad Ibrahim Khan, a barrister and member of Prajha Sabha, at Pallandri.
The state of Jammu & Kashmir comprising 84471 sq. miles as it existed on 15th of August, stands willy nilly divided into three parts, around 2/3rd from all the three geographical regions of the state are under the control of India, around 1/3rd under the administrative control of Pakistan, through the state subjects and, a sizeable part of Frontier province, (Northern Area) is controlled by China subject to final negotiations with the sovereign authority to whom the state goes after the plebiscite, (under Pak-China border agreement of 1963).
The de facto division is confirmed by the ceasefire line agreement between India and Pakistan concluded under the auspices of UNSC on 29th July 1949 and several UNCIP resolutions and bilateral agreements between India and Pakistan.
India claims the whole of the state as its territory and part, under the alleged agreement of accession dated 27th Oct 1947. Its sovereign demand for freeing the liberated areas under the administration of Pakistan was formally expressed by a resolution of parliament of India on 22nd Feb 1994. It is reasserted vigorously after 5th August 2019, when the part of the state under Indian control was disintegrated, downgraded, and merged in the Indian Union as “union territories” bifurcated in two parts as the UT of J&K and UT of Ladakh.
In the backdrop of these brief politico-legal facts, two important questions of constitutional study and importance arise as;
A) Whether liberated parts of state i.e. Azad Jammu & Kashmir (AJK) and Gilgit-Baltistan (GB) also fell in the agreement of accession dated 27th Oct;
B) As to whether any constitutional, legal, diplomatic and moral legitimacy remains to Indian holding of parts of the state in its control after 5th August on the pretext of accession agreement?
A) AJK and GB:
The ruler of the state had left the capital of the state on the 25th October, 1947. The sole representative parliamentary party of the majority population of the state, All J&K Muslim Conference had passed a resolution in favour of accession to Pakistan. The ruler of the state had entered into a standstill agreement with Pakistan on 12th August 1947, duly accepted by the Government of Pakistan on 15th August. The Government of Pakistan had taken over the administration of federal offices in the state and the Pakistani flag was raised on federal offices like P.O. Telegraph. The people of the state had formed its government in the areas named AJK, comprising territories of AJK and GB with effective control and writ of the state in the territory on the 24th of October. As at that time the ruler of state had already abandoned the capital and left with part of Jammu province only. The Indian forces were deployed in the state on 27th October. They recaptured some parts of territories of the state forcibly from the local population. The Indian Government attempted to install its Governor Ghansara Singh in Gilgit but deployed Indian forces were defeated by arresting the governor and hoisting the Pakistani flag on residency on 1st Nov 1947. India then filed a complaint in UNSC on 1st January 1947, admitting therein in a delusive manner that “the raiders had done a great deal of damage in that area and had “taken possession of part of the territory of the state”, specifically referring to 24th Oct. The raiders, in fact, were local people represented by a duly elected member of Prajha Sabha, Sardar Ibrahim Khan heading the independent government of the people of the state. It was an admission of having lost the territory under the control of the AJK government.
The UNSC resolutions (particularly dated 23rd August 1948, read with their interpretations by the representative of the commission) acknowledged the existence of Azad Kashmir and regulated its status as “Local Authorities under the surveillance of the commission — in the control of high command of Pakistan.”
A cease-fire agreement was brokered between India and Pakistan under the auspices of the UNSC on 29th July 1949, demarcating the territories of the state under the control of Pakistan.
The Indian constitution which came into force on 26th January 1950, defines the territories of the state of J&K under Schedule 1 as;
“the territory which immediately before the commencement of this Constitution was comprised in the Indian state of Jammu and Kashmir”.
The territories of AJK & GB definitely were not under the sovereign control of the ruler of state on the day of the alleged instrument of accession and “—immediately before the commencement of constitution“. As they had ceased to be part of that state much before 24th Oct ‘47, when a legal government was formed in the territories and acknowledged so under UNCIP resolutions and ceasefire agreement, much before 26th January ‘50. Indian constitution does not say “Once upon a time”.
India for the first time asserted its claim on these territories on 22nd Feb 1994 through the resolution of parliament against the scope of the definition of state in its constitution. The hypothesis of the Indian claim on AJK and GB being part of the Indian union based on the instrument of accession and its constitution is misconceived and fraudulent. These territories are of course part of the overall dispute of state for the purpose of the plebiscite and their future dispensation based on the result of the plebiscite, but not part of the instrument of accession and part of the Indian constitution.
As far as Pakistan is concerned, based on UNCIP resolutions and CFL agreement, these stands impliedly included in Article 1(3) of the constitution of Pakistan as “Territories otherwise included in Pakistan.” Any claim or attack on these territories is an attack on the sovereignty of Pakistan and the authority of the UNSC. The most significant aspect of these territories is that there is no voice for India or against Pakistan, which means people have accepted the position and strive for the rest whose residents have not accepted India and there are vocal voices for Pakistan.
B) Legitimacy of Indian control over the state in its control:
As for the rest of the state under the control of India, based on the instrument of accession, is concerned, its constitutionality, legality, and legitimacy was lost on the day (27th Oct.’47.) when the Governor-General of India accepted the alleged conditional instrument subject to, “–the question of state’s accession should be settled by a reference to the people—“.
Whatever was left, was annulled by the UNSC by its unanimous resolutions followed by one after other, duly accepted by India & Pakistan. The first of most significance was No 47 of 21 April 1948, stipulating that “– Noting with satisfaction that both India and Pakistan desire that the accession of Jammu & Kashmir to Pakistan or India be decided by the democratic method of a free and impartial plebiscite.” The state was restored back to the pre-accession position pending a plebiscite.
Extension of article 1 through the introduction of Art 370, that too in derogation of accession agreement and UNCIP Resolutions to regulate the state as Indian territory on 26th of January 1950, laid the foundation of its designs to usurp the state by the deceitful constitutional mechanism. A delusive hope of keeping state autonomous was, however, kept alive by excluding State from the definition of “Indian state” for the purpose of Chapter Six of the constitution regulating the Indian states and Articles relating to election to the parliament of India.
Realizing the mischief, the popularly elected leader of the state, late Sheikh Muhammad Abdullah resisted. He was removed arbitrarily in 1953 and sent to jail along with other leaders.
An onslaught of clipping autonomy & strengthening its occupation, a flood of articles of Indian constitution, entries, and schedules was thrust on the state through constitution application to state Order 1954. Through other successive orders, the ceremonial title of the head of the state was changed from “Sadar-e-Riasat” to “Governor” and head of the government from “Prime Minister” to “Chief Minister “. The constitutional relationship of the state with India was, however, symbolically expressed through article 370. Till 5th August 2019, Out of 395 articles, more than 260, and 95 entries out of 97 entries were extended to the state, besides 26 entries from the concurrent list seven schedules. This perpetuated illegal and unconstitutional occupation.
5th August 2019, an extension of the constitutional order was the last nail in the coffin of state – union relationship when all earlier constitution extension orders symbolizing the ceremonial identity of the state were abrogated, the whole of the Indian constitution was extended and the constitution of the state was repealed brazenly.
The scenario has gone beyond accession and occupation after 5th august. It is a state of fascism, Hindutva Appartheidism, colonialism just in line with Nuremberg laws of 1935, stripping Kashmiris of their identity, security of education, job, and property. CAA & NRC has squeezed the space for all Muslims in India. Hereditary status of non-resident Kashmiri Diaspora, displaced and refugees state subjects are rendered redundant and they are non-residents now. Instead, non-state subject Indians are being ushered in millions to crush the moment of state subjects and change the demography. Residents are rendered aliens and vice versatile.
The myth of accession, obligations under UNCIP Resolutions, and symbolic constitutional autonomy have dissipated. All violations of local and international laws apprehend able under the UN Charter, conversations, covenants, and protocols are committed with impunity in IHK.
Last but not least the most significant aspect of residents of these territories is and has been, that there are very loud voices for Pakistan and against India.
Disclaimer: The views, thoughts, and opinions expressed in the text belong solely to the author, and not necessarily to the editor of the Kashmir Discourse.
The author is a former Chief Justice of AJK Supreme Court and can be reached at email@example.com