As NDA MPs promise to reclaim Pakistan-occupied Kashmir, a look at region’s muddled legal status

Over the past two days, impassioned debates in Parliament have touched upon various aspects of Jammu and Kashmir’s accession to India, and the country’s position on the same. In the heat of political posturing, some members of the ruling dispensation have said that the next step is to make Pakistan-occupied Kashmir (PoK) an integral part of India. On Monday, Shiv Sena MP Sanjay Raut thundered in the Rajya Sabha , “Today, we have reclaimed Jammu and Kashmir. Tomorrow, we will take Balochistan and PoK, and I have trust that this government will fulfil the dream of an undivided India.” On a more measured note, Jitendra Singh, Minister of State in the Prime Minister’s Office (PMO) said, “The next task (after the revocation of Article 370) is how to make Pakistan-occupied-Kashmir a part of India.” [caption id=“attachment_6291681” align=“alignleft” width=“380”] Representational image. PTI[/caption] In this context, it is important to have a look at the legal position on Pakistan-occupied Kashmir. India’s position India maintains that Pakistan is illegally occupying a portion of Jammu and Kashmir and that the entire state belongs to India. This position was articulated by Union Home Minister Amit Shah on Tuesday, who said in the Lok Sabha amid clapping and thumping of desks, “Whenever I have said Jammu and Kashmir, it includes PoK and Aksai Chin.” India’s position on the illegality of Pakistan’s occupation of a part of the state rests on events that occurred 71 years ago — in 1948. After India approached the United Nations on the issue, the UNCIP was formed to arrive at a solution. The UNCIP had formulated several resolutions at the time, and a statement by the Ministry of External Affairs in April 2003 listed out several ones that Pakistan failed to honour. It noted that India’s acceptance of the resolutions of the United Nations Commission on India and Pakistan (UNCIP) was subject to “several conditions and assurances given by UNCIP, including that Pakistan would be excluded from all affairs of Jammu and Kashmir, ‘Azad Jammu and Kashmir Government’ would not be recognised, sovereignty of Jammu and Kashmir government over the entire territory of the state shall not be brought into question, territory occupied by Pakistan shall not be consolidated, and Pakistani troops would be withdrawn completely.” It further pointed out, “The UNCIP Resolution of August 1948 documented the Pakistani aggression when it stated: ‘The presence of troops of Pakistan in the territory of the state of Jammu and Kashmir constitute a material change in the situation since it was represented by the Government of Pakistan before the Security Council.’” Pakistan-occupied Kashmir became a diplomatic flashpoint between India and Pakistan more recently, in June 2018. A joint sitting of the Legislative Assembly of the area that Pakistan terms as “Azad Jammu Kashmir” and the “AJK Council” made the 13th amendment to the “Azad Jammu and Kashmir Interim Constitution Act”. The legislation transferred the power of the council to the “AJK” government, which effectively gives Pakistan the authority to directly address the issues of the region. (This is because, as explained in detail later in the article, the council is headed by Pakistan’s prime minister and includes several other ministers as members). In response, India asserted that the entire state of Jammu and Kashmir belongs to India and said that any action by Pakistan with regards to forcible or illegal occupation was “unacceptable”. Administration of PoK Article 257 of the 1973 Constitution of Pakistan states, “When the people of the State of Jammu and Kashmir decide to accede to Pakistan, the relationship between Pakistan and the State shall be determined in accordance with the wishes of the people of that State.” However, it does not specifically mention that the regions of the state that it presently occupies are part of its territory. Article 1(2)(d) of the country’s Constitution only states that the country’s territories include “such States and territories as are or may be included in Pakistan, whether by accession or otherwise”. Nevertheless, Pakistan plays a significant part in the administration of the territory of Jammu and Kashmir that it presently occupies. Pakistan-occupied-Kashmir is divided into “Azad Jammu and Kashmir” and Gilgit-Baltistan. Both of them have legislative Assemblies and enjoy some degree of autonomy. In “Azad Jammu and Kashmir”, the system of adult franchise was adopted and a democratic setup was introduced in the year 1970 through the “Azad Jammu and Kashmir Act, 1970”. This paved the way for the Legislative Assembly as well as President of “Azad Jammu and Kashmir” to be elected by means of a popular vote. In 1974, a parliamentary system was introduced in under the “AJ&K Interim Constitution Act, 1974”. The Assembly of “Azad Jammu and Kashmir” presently comprises of 41 elected members and 8 co-opted members, as mentioned in an official portal of the government. The Pakistan-occupied-Kashmir’s link to Pakistan comes from the “AJK Council” (mentioned earlier in the article), which has the Prime Minister of Pakistan as its chairperson. The council also includes Pakistan’s Federal Minister of Kashmir Affairs and Gilgit Baltistan, and five members who are nominated by the prime minister from among the other ministers, or members of Parliament. The objective of the Ministry of Kashmir Affairs and Gilgit Baltistan, as mentioned on its website, is “to assist and help the governments of Pakistan-occupied-Kashmir and Gilgit Baltistan… in developing institutions to ensure self-governance, sustainable economic development and a political system which should be able to respond to the needs of the people”. Until 1970, Pakistan-occupied-Kashmir and Kashmir and Gilgit-Baltistan were part of a single territorial unit. After Gilgit-Baltistan was carved out as a separate territorial unit, a representative body named the Northern Areas Advisory Council was created. This was an 18-member body that was chosen through direct elections, as mentioned in an article in Dawn. The Northern Areas Advisory Council later became the Northern Areas Council (in 1988) and still later, became the Northern Areas Legislative Council (in 1994). However, it could only frame laws on local governance issues, such as local taxes and irrigation. In 2009, through the Gilgit-Baltistan (Empowerment and Self-Governance Order), 2009, the Gilgit-Baltistan Legislative Assembly (which is an elected body) and a Gilgit-Baltistan Council were created. Similar to the “AJK Council”, the Gilgit-Baltistan Council is headed by the prime minister of Pakistan, and has among its members the Minister of Kashmir Affairs and Gilgit Baltistan and other ministers nominated by the prime minister. Legal ambiguity However, there is ambiguity on whether both Pakistan-occupied-Kashmir and Gilgit-Baltistan are parts of Pakistan or not. While the legislative assemblies have some authority in some areas, the Pakistan government handles subjects such as defence, security and foreign affairs. An article in Pakistan-based Herald magazine quotes a senior official in Pakistan-occupied-Kashmir as saying, “Since we are not a part of the federation of Pakistan, we do not have the right to demand financial resources as a matter of right… their continued flow is totally dependent upon the whims of the government in Islamabad.” Further, an article in Dawn points out that Pakistan claims mountain peaks such as K-2 as its own and celebrates heroes like Lalik Jan Shaheed (recipient of Pakistan’s highest military gallantry award) as its own, although they are from Gilgit-Baltistan. The article notes, “Local wisdom dictates that when it suits Pakistan, GB is a formal part of the country; and when it suits Pakistan to show GB as a disputed territory, it is shown as that.” In sum, even as Pakistan seeks to lay claim over the entire state of Jammu and Kashmir, its legal position on the part it currently occupies is a bundle of contradictions.