Kashmir’s myth of Accession starts by virtue of Jammu & Kashmir being a princely state, it’s Hindu ruler was empowered under the Indian Independence Act 1947 to accede either to India or Pakistan, keeping in view the demographic composition of the population.
The working committee of the 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. Realizing the ground realities, the ruler entered into a standstill agreement with Pakistan. The Pakistani flag was then hoisted on most of the federal offices in the state.
Movement for Independence starts to gain momentum
Simultaneously a government in exile was announced by the state subjects on 5th October 1947 at Rawalpindi, under the leadership of Ghulam Nabi Gillary. When pressure from the local population mounted on the ruler for accession to Pakistan, he fled to his home town Jammu. In Jammu, he was forced to sign a conditional accession agreement with India which was conditionally affirmed by the Governor-General of India. It stipulated 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 the freedom fighters, a full-fledged sovereign Government was formed on 24th October 1947. This was done under the Presidency of Sardar Muhammad Ibrahim Khan a barrister, member of Praja Sabah, at Pallandri.
A Divided Kashmir
The state of Jammu & Kashmir comprising 84,471 sq. miles as it existed on the 15th of August 1947, stands willy nilly divided in three parts. Around 2/3rd from all the three geographical regions (Jammu, Kashmir and Frontier province NA) of the state are under the control of India and around 1/3rd under the administrative control of Pakistan. A sizeable part of the Frontier province is controlled by China, as per the final negotiations under the Pak-China border agreement of 1963.
The de facto division was confirmed by a cease-fire line agreement between India and Pakistan, concluded under the auspices of UNSC, several UNCIP resolutions, and bilateral agreements between India and Pakistan.
Kashmir’s Myth of Accession
India claims the whole of the state as its territory 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 the Parliament of India on 22nd February 1994. The sentiment of ownership was reasserted vigorously after 5th August 2019, when part of the Kashmiri state under Indian control was disintegrated, downgraded and merged in the Indian Union.
In the backdrop of these brief politico-legal facts, two important questions can be raised; whether the liberated parts of the state i.e. Azad Jammu & Kashmir (AJK ) and Gilgit- Baltistan (GB) also fell in the agreement of accession dated 27th Oct and; whether any constitutional, legal, diplomatic and moral legitimacy remains to India holding parts of the state in its control after 5th August 2019?
AJK & GB
As previously mentioned, the ruler of the state had entered into a standstill agreement with Pakistan on 12th October, which was duly accepted by the government of Pakistan on 15th October. The government of Pakistan had taken over the administration of federal offices in the state and the Pakistani flag was raised on federal offices.
The people of the state had formed a government in the area named as AJK, comprising territories of AJK and GB, which took effective control on 24th October. The ruler of the state abandoned the capital on 25th October. The Indian forces were then deployed on 27th October. They recaptured some parts of territories of the state forcibly from the local population. The Indian Government’s attempt to install its Governor Ghansara Singh in Gilgit and deploy Indian forces were however defeated – the governor was arrested and the Pakistani flag was hoisted on residency on 1st November, 1947.
Subsequently, India filed a complaint in the UNSC, admitting therein in a delusive manner that “…the raiders had done a great deal of damage in that area and taken possession of part of the territory of the state.” The raiders, in fact, were local people represented by the duly elected member of Parja Sabha, Sardar Ibrahim Khan.
The UNSC resolutions (particularly dated 23 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 UNSC demarcating the territories of the state under the control of Pakistan High command, signed on 29th July 1949.
India for the first time asserted its claim on these territories on 22nd February 1994 through a resolution passed by the parliament of India. The hypothesis of the Indian claim of AJK & GB being part of Indian union was based on an instrument of accession and its constitution. This interpretation, however, is misconceived and fraudulent.
These territories are of course part of the over-all Kashmir dispute for the purpose of a plebiscite and their future dispensation based on the result of such plebiscite. However, they are not part of the instrument of accession the ruler signed with India, and neither the Indian constitution.
Based on UNCIP resolutions and the CFL Agreement, these territories stand 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 UNSC.
The legitimacy of Indian control over the state in its control
As for the rest of the state under the control of India is concerned, its constitutionality, legality and legitimacy was lost on 27th October 1947, when the Governor-General of India accepted the alleged conditional instrument subject to, “…settlement of the dispute by a reference to the people…“
Whatever was left was annulled by the UNSC through its unanimous resolutions, duly accepted by India & Pakistan.
Insertion of Article 370
The introduction of Article 370, that too in derogation of the Accession Agreement and UNCIP Resolutions, to regulate the state as Indian territory on 26th of January 1950, laid the foundation for India to usurp the state by a deceitful constitutional mechanism. A delusive hope of keeping the state autonomous was, however, kept alive by excluding it from the definition of “Indian state” for the purpose of Chapter six of the constitution. 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.
In order to legitimize and strengthen its occupation, a flood of articles were introduced into the Indian constitution. Through other successive orders, the ceremonial title of the head of the state was changed from ‘Sadr-a-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 were extended to these territories. This perpetuated illegal and unconstitutional occupation.
The last nail in the coffin
The scenario has gone way beyond accession and occupation since 5th August 2019. The Indian state has proved it is a state of fascism and colonialism, just in line with Nuremberg laws of 1935. Kashmiris have been stripped of their identity and security of education, occupation and property. Furthermore, the CAA & NRC have squeezed the space for all Muslims in India. The hereditary status of non-resident Kashmiri diaspora, displaced persons and refugees has been rendered redundant and they are all categorized as non-residents now.
The myth of accession and symbolic constitutional autonomy has dissipated. All violations of international laws under the UN Charter, covenants and protocols, are committed with impunity in Indian occupied Kashmir.
Justice (r) Syed Manzoor Hussain Gillani retired as the senior-most judge of the Supreme Court of AJK. He was educated in Srinagar, occupied Kashmir, and migrated to AJK in 1976; can be reached at email@example.com. The views expressed in this article are the author’s own and do not necessarily reflect the editorial policy of Global Village Space.