Justice (Retd) Syed Manzoor Hussain Gillani*
The region known as ‘Azad Jammu and Kashmir’ (AJK) under Pakistani administration (including Gilgit-Baltistan) is a complex chapter in the history of the erstwhile princely state of Jammu and Kashmir, which was once ruled by Maharaja Hari Singh of the Dogra dynasty.
Background
The creation of Jammu and Kashmir dates back to the manoeuvres of Gulab Singh, who consolidated various independently governed territories in the name of the Lahore Sikh Darbar, which was later ceded to the British as part of a war indemnity and passed to Singh after the Treaty of Amritsar in 1846.
The partition of India in 1947, which led to the creation of India and Pakistan, offered the princely states, including Jammu and Kashmir, the opportunity to join one of the two dominions, guided by considerations of religious demography and geographical proximity.
Under Section 7 of the Indian Independence Act of 1947, all agreements between the British government and the Indian princes ceased to have effect from 15 August 1947, which of course included the Amritsar Agreement of 16 March 1846.
With the expiry of the British agreements with Indian princes on 15 August 1947, including the Treaty of Amritsar, Maharaja Hari Singh’s legal claim to J&K was effectively abrogated and the state was made independent of Dogra dynasty rule.
The people of AJK and Gilgit-Baltistan (GB) liberated their areas from Dogra control and established an independent government for the state on 24 October 1947. This act of sovereignty came a few days before Maharaja Hari Singh’s controversial decision to accede to India, which went against the principles of partition.
The territories of the former state were not part of the ruler’s accession treaty with India and could not have been. They were free from the Maharaja’s rule firstly from 15 August 1947 when the Amritsar Agreement/Treaty lapsed and secondly when a sovereign government was set up comprising these territories.
The United Nations Security Council (UNSC), responding to India’s complaint in January 1948, passed a series of resolutions in favour of a plebiscite to resolve the accession dispute democratically. Despite all efforts, including the appointment of a plebiscite administrator, the initiative stalled and resulted only in the establishment of a ceasefire line, which was later redefined as the Line of Control by the Simla Agreement of 1972.
The areas liberated from Dogra rule were recognised in the UNCIP resolution of 13 August 1946 and designated as “evacuated territory”. The term “evacuated area” was defined by Joseph Korbel, the UN Security Council representative, as “the area under the control of the Pakistani High Command” and the “local authorities as Azad Kashmiri people”.
Ambiguous status
Despite these developments, the constitutional status of AJK and GB remains unclear as they have not been formally incorporated into Pakistan’s legal framework. While they are treated administratively like other Pakistani provinces, their exclusion from the national constitution has led to a democratic deficit as their residents are not represented in key national institutions and decision-making bodies.
This constitutional limbo not only undermines the political rights of the people of these regions but also leads to their marginalisation at both the national and international levels and their political fate being held hostage to the broader Kashmir conflict. In contrast, the Indian-administered territories in J&K are facing challenges, especially with the downgrading of their status to Union Territories in 2019, further exacerbating regional prejudices and alienation.
The dichotomy of the Kashmir issue is that while the territories in question are subject to claims and counterclaims by India and Pakistan, the rights of the people living there remain undisputed. Ensuring their political and constitutional rights, on an equal footing with those in the administered countries, could pave the way for reconciliation and emphasise the importance of dealing with sentiments and regional aspirations in a just and balanced manner.
The history of Kashmir, particularly the parts administered by Pakistan and India, is an example of a complex interplay of historical resentment, political aspirations and the ongoing quest for self-determination. While the prospect of either country gaining complete control of the region remains unlikely, a just and fair approach to governance could mitigate alienation and create a climate conducive to eventual reconciliation.
The people of these two areas are constitutionally the worst sufferers, whose political rights at the national and international levels depend on the resolution of the Kashmir issue, even though they agree with the Pakistani government and have technically merged with Pakistan under Karachi Agreement of 1949 between leaderships of AJK and Pakistan after ceasefire agreement of 1949 between India and Pakistan.
The Indian-administered areas of the state are victims of bias within India by being dissolved and downgraded into two Union Territories, which have had no legislature since 2018. Sheikh Mohammad Abdullah, a veteran Kashmiri leader, had aptly said, “Indian democracy ends in Lakhanpur, secularism ends in Banihal.”
Challenges and Way Forward
The areas of the state in Pakistan and India are of course disputed and claimed by each of the two countries as a whole, but the human and political rights of the people living there are not disputed, no matter where they are.
They are entitled to the same political and constitutional rights as the people in the country that administers them, albeit asymmetrically, taking into account local and regional realities and aspirations, for sentiments have their value when compared to the other and can also pave the way for ultimate reconciliation if administered justly and fairly. Alienation is not a solution.
Should either country at any time gain control of the entire region (which seems almost impossible given their stance based on seventy-five-year-old principles), assimilation would be easier and alienation would be minimised.
My reflections on the political quagmire in the region emphasise the need for a solution that accommodates the democratic aspirations of the people victim of arbitrary partition. Only through such a solution can we hope to overcome the convoluted political challenges of the different parts of Jammu and Kashmir on both sides of the Line of Control and move towards a future where rights and aspirations are not only recognised but also fully realised.
*The author is a former acting Chief Justice of Pakistan-administered Kashmir
—–
Have you liked the news article?