What should be the future of POK? A Legal Perspective

What should be the future of POK? A Legal Perspective

The abrogation of Article 370 of the Constitution of India by the Hon’ble Home Minister of India, Shri Amit Shah last month has sparked number of debates, the most prominent of them being what shall be the future of Pakistan Occupied Kashmir (POK) and Aksai Chin. The State of Jammu & Kashmir holds a distinct position under the Constitution of India. It form a part of the ‘territory of India’ as defined in Article 1 of the Constitution, being the fifteenth State included in the First Schedule of the Constitution. Entry 15 of Schedule 1 states that with respect to the state of Jammu & Kashmir, the territories which immediately before the commencement of the Constitution were comprised in the Indian State of Jammu and Kashmir which includes the parts occupied by Pakistan and also Aksai Chin which is under China’s administration currently.

The then ruler of the Princely State of Jammu, Maharaja Hari Singh Ji in exercise of his sovereignty, like all other rulers of that time, executed an Instrument of Accession declaring the intent to accede to the Dominion of India. Yuvraj Karan Singh, the last ruler of Jammu & Kashmir and the present member of Rajya Sabha, on the 1st of May, 1951 issued a proclamation which directed for a Constituent Assembly consisting of representatives of the people, elected on the basis of adult franchise, shall be constituted forthwith for the purpose of framing a constitution for the State of Jammu and Kashmir and the vote at the election shall be by direct and secret ballot.

The Constitution of Jammu & Kashmir was adopted by the Constituent Assembly of Jammu & Kashmir on November 17th, 1956. The preamble of which reads, “We, the people of the State of Jammu and Kashmir, having solemnly resolved, in pursuance of accession of this State to India which took place on the twenty-sixth day of October, 1947, to further define the existing relationship of the State with the Union of India as an integral part thereof”. Further Article 3 of Part II of the J&K Constitution states that The State of Jammu & Kashmir “is and shall be” an integral part of the Union of India. Article 4 further clarifying states that the territory of the State shall comprise all territories which on the fifteenth day of August, 1947, were under the sovereignty or suzerainty of the Ruler of the State which undoubtedly includes the parts occupied by Pakistan and also Aksai Chin. The use of the expression “is and shall be” is quite significant as it affirms and reiterates the desire of the people of Jammu and Kashmir to be an integral part of India in present and in future.

Azad Jammu and Kashmir (AJK) is a self-governing state but under Pakistani control and the other part of PoK, i.e. Gilgit-Baltistan, came under direct rule of the central government of Pakistan after the Karachi Agreement and was termed ‘Northern Areas’. However, these regions did not find mention in the constitution of Pakistan as on a perusal of the Constitution of the Islamic Republic of Pakistan, Article 1 of which defines the territory of Pakistan, we find that it nowhere recognises or declares any part of Jammu & Kashmir under Pakistan’s occupation as its territory. Brad Adams, the Asia director of the NGOHuman Rights Watch has said in 2006; “Although ‘azad’ means ‘free’, the residents of Azad Kashmir are anything but, the Pakistani authorities govern Azad Kashmir government with tight controls on basic freedoms.” The political-intellectual discourse of the region had over the years evolved a historical disconnect with the Erstwhile State of Jammu & Kashmir and India— somewhat inherent, some engineered.

The United Nations Security Council via Resolution 47 of 21st April 1948 having considered the complaint of the Government of India concerning the dispute over the State of Jammu and Kashmir directed that the Government of Pakistan should undertake to secure the withdrawal from the State of J&K of tribesmen and Pakistani nationals, not normally residents therein but have entered the State for the purpose of fighting but the same has never been complied with as in fact Pakistan has been pushing settlement of Sunni Muslims from neighbouring North West Frontier Province (renamed as Khyber Pakhtunkhwa in 2010) since a long time now. The same Security Council resolution was of the view that accession of J&K should be decided through a free and impartial plebiscite which I believe won’t be necessary as the people of J&K did take a decision and the “wishes” of the people of Jammu and Kashmir have been duly ascertained through the duly elected constituent assembly which was clearly to accede with the Union of India and nowhere else as per the relevant provisions of the Constitution of Jammu & Kashmir. The same constituent assembly had and still has 24 seats reserved for the representatives of the people of POK. The accession of Jammu and Kashmir to the Union of India is legally sound, constitutionally binding and irrevocable and J&K was and will always be the integral part of India. Pakistan clearly has no locus standi over matters of Jammu & Kashmir and has occupied parts of it through the act of aggression violating Article 2(4) of the Charter of United Nations. Thus the present government should take note of the gross human rights violations in PoK by Pakistan as also found by the NGO, Human Rights Watch in its 71-page report titled, “‘With Friends Like These …’: Human Rights Violations in Azad Kashmir,” and execute the resolution of February 22, 1994 which was unanimously adopted by both houses of the Indian Parliament emphasizing that Jammu and Kashmir is and shall be an integral part of India and that Pakistan must vacate parts of the State which they have occupied through aggression, further any attempts to separate it from the rest of the country will be resisted by all necessary means.

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