14 October 2016

*Reclaim PoK: India’s Statutory Obligation

By Rakesh Kr Sinha
12 Oct , 2016

The Pakistan occupied Kashmir (PoK) reminds this nation of an unfinished task of the partition, a scar, deep somewhere in the collective conscience of this country. The PoK can be broadly defined as a captured vassal State of the Punjabi Muslim dominated Pakistani regime, left far behind in the march of human civilization, in news with an importunate regularity for all bad reasons. A terrorist haven, a nursery, a training field, a launching pad, it has turned out to be a laboratory for experimenting jihadi extremism with new models of terrorism, duly supported and nurtured as a tool of State policy by Pakistan.

In March 1993, the High Court of Judicature of ‘Azad’ J&K in a judgement had said that the ‘Northern Areas’ were an integral part of J&K and consequently the Govt of Pakistan should revert the control…

As regards to physical control of the territory of Jammu & Kashmir (J&K), out of 2,22,236 sq km, the PoK has 78,114 sq km i.e. 35.15 % ; China occupies 42,735 sq km i.e.19.23% of the total area that also includes the territory (5,180 sq km) of Shaksgam–Murtagh Valley ceded to China by Pakistan through Sino Pakistan Frontier Agreement of March 02, 1963. Inside PoK, the so called ‘Azad Kashmir’ (Mirpur, Poonch) has 13,297 sq km of territory with it and the rest is known as Northern Areas of Gilgit and Baltistan.

In March 1993, the High Court of Judicature of ‘Azad’ Jammu and Kashmir in a judgement had said that the ‘Northern Areas’ were an integral part of Jammu and Kashmir and consequently the Government of Pakistan should revert the control of the administration of the ‘Northern Areas’ to the Government of ‘Azad’ Kashmir. The Government of Pakistan preferred an appeal against this verdict to the Supreme Court of ‘Azad’ Kashmir. This Court confirmed that the ‘Northern Areas’ were an integral part of Jammu and Kashmir but declared that it did not have jurisdiction over the decision to revert the control of the administration of Northern Areas to the Government of ‘Azad’ Kashmir, as these area were under the direct control of Pakistan. Finally, the case was transferred to the Supreme Court of Pakistan which in a landmark judgment ruled that it had no power to hear a petition related to territory which did not belong to Pakistan.

Baroness Nicholson, European Parliament Rapporteur for Kashmir had said in a report that on the basis of all the maps, treaties including the lease agreement of 1935, historic documents and speeches, putting together a comprehensive picture from 1846 until 2007, it is proven that Gilgit and Baltistan were in the domain of the Maharaja of Jammu and Kashmir. It also formed part of the instrument of accession, signed by Maharaja Hari Singh on October 26, 1947. She has elaborated further “all the evidence points to the fact that Gilgit and Baltistan regions were constituents of Jammu and Kashmir by 1877, under the sovereignty of Maharaja Gulab Singh, and remained in the domain of the independent princely state, up to and including the formation of India and Pakistan on August 15, 1947.” After the signing of the Instrument of Accession, the J&K Constituent assembly also later ratified the Instrument of Accession, thereby, completing all the legal formalities pertaining to a lawful merger of J&K in India.

India has never seriously strived to reclaim its territory from the Pakistani occupation. This strategy may have certain diplomatic compulsions, but prima facie it looks bizarre.

Pakistan’s lack of sovereignty on PoK is illustrated by Asif Ezdi, a former member of the Pakistan Foreign Service who in 2009 had in an article written that

“The Pakistan Constitution is completely silent on the Kashmir status. Article 257, which is a reproduction of identical provisions in the 1956 and 1962 constitutions, deals only with the future status of the state and reads as follows: When the people of the State of Jammu and Kashmir decide to accede to Pakistan, the relationship between Pakistan and that state shall be determined in accordance with the wishes of the people of that state. There are two main reasons why Pakistan has taken no steps to remove the ambiguities in its position on the constitutional status of Kashmir. First, Pakistan would not like to do anything that could compromise its demand for a plebiscite in accordance with UN resolutions. It has therefore been careful to refrain from actions that could lay it open to the charge that it had altered the basic conditions under which those resolutions were adopted and by doing so impeded their implementation. Second, Pakistan has been cautious not to take steps that could imply that it accepts the current territorial status quo dividing the state into two parts as a permanent solution. The constitutional limbo in which Azad Kashmir and even more so the Northern Areas find themselves as a result of these legal lacunas is bad enough in itself. What makes it no longer unacceptable is that it has hampered their political and constitutional development for more than six decades, the people of the Northern Areas lack representative government and access to courts for the effective enforcement of their fundamental rights. In Azad Kashmir, democratic government is circumscribed by outdated constraints. The people of both Azad Kashmir and the Northern Areas cannot participate in government at the national level because they have no representation in parliament. This state of affairs has been a source of alienation, especially in the Northern Areas, and should not be allowed to continue.”

On the other hand, the Constitution of India has kept a provision of additional 05 seats in the Lok Sabha, over and above 545, that can be filled up from PoK once the area is freed. The Indian side of J&K Assembly has 24 seats earmarked for the areas under PoK, nonetheless, not filled as the territory is under foreign occupation. The Indian sovereignty on entire J&K is legally unassailable. However, India has never seriously strived to reclaim its territory from the Pakistani occupation. This strategy may have certain diplomatic compulsions, but prima facie it looks bizarre. How India of 21st century, a country aspiring to be a super power, can leave its territory under foreign occupation? There are many who believe that after 1971 war India had an opportunity of freeing its territory under PoK in exchange of 93,000 Pakistani prisoners of war.

Pakistan wants to use the people of PoK , who are legally Indians, against the Indian army and use Indian territory i.e. PoK itself as the theatre of nuclear war with India.

The people of Giligit –Baltistan are deprived of their basic human rights and are treated in a step-motherly fashion by Pakistan. There is no university in Gilgit-Baltistan. There are no professional colleges. Only 12 high schools and two regional colleges with no post graduate facilities exist. Adult literacy is 14 per cent for males and 3.5 per cent for women. There no local daily papers, no local radio and television stations. The water supply is non-existent and two third of the population has no electricity. The natives of PoK are paid 25 per cent less in Govt service within the PoK than the non-native entrants from Pakistan whereas in India the native of J&K tops the Indian Civil Services exam.

In 1999, the Pakistan Supreme Court took a note of the “dictatorial and colonial system at work in Gilgit and Baltistan”, and directed the Pakistani government to act within six months to put in place an elected government with an independent judiciary in the Northern Areas and to extend fundamental rights to the people of the region. Notwithstanding the comments of their Supreme Court, the ‘Northern Areas’ continued to be governed as a colony of Pakistan. Elections were held to the renamed Northern Areas Legislative Council (NALC) in November 1999. This proved of no value as the Council had no real fiscal and legislative powers. The ‘Northern Areas’ was renamed ‘Gilgit-Baltistan’ under the Gilgit-Baltistan Empowerment and Self Governance Order of August 2009 to meet the demand of political parties and people for autonomy. However, the people of the region rejected that as the Pakistan’s, “unilateral decision to impose herself on the land and people of Gilgit- Baltistan is a clear violation of the resolutions of the UNCIP on Jammu & Kashmir”.

Many political groups in PoK have raised the banner of rebellion against Pakistan’s occupation. The Gilgit-Baltistan Democratic Alliance (GBDA) is the group of several political groups operating in the PoK including the GBUM. Gilgit-Baltistan United Movement (GBUM) is a prominent local political autonomist movement, supported by local politicians which demands a fully autonomous state comprising of Gilgit and Baltistan, also known as ‘Northern Areas’. Balawaristan National Front (BNF) considers Pakistan as a “usurper” and its control over the region as “illegal” according to the international law.” Unrepresented Nations Peoples Organization (UNPO) raises the issues related to the plight of the people of PoK. The organization focuses on the miserable lives and conditions of the local population who are forced to live as aliens in their own state in the absence of basic rights and freedom.

The present LoC in the J&K is like the Berlin Wall. If allowed, every native of PoK will cross over to Indian side as the East Germans jumped over to West Germany after the collapse of the wall in 1990.

Pakistan has a very sinister motive in keeping the PoK under its control. Its nuclear doctrine speaks of using the tactical warhead to stop the advance of the conventionally superior Indian army. In such a situation, the tactical nuclear weapon which is said to have an effective range of 20 km will be used on Indian army while it is overrunning the PoK leaving its habitants with the trail of devastation and complete holocaust . Pakistan wants to use the people of PoK , who are legally Indians, against the Indian army and use Indian territory i.e. PoK itself as the theatre of nuclear war with India.

This design was also visible in 1999 Kargil war wherein the Pakistani J&K Light Infantry, raised from the PoK ‘s natives, was pushed into the Indian territory across the LoC as Mujahideens. After they were killed by Indian army in the battle, Pakistani army didn’t even come to collect their bodies and refused to recognize them as their soldiers.

The present LoC in the J&K is like the Berlin Wall. If allowed, every native of PoK will cross over to Indian side as the East Germans jumped over to West Germany after the collapse of the wall in 1990. The people of PoK want development, democratic rights and peaceful existence, totally out of question under Pakistan which only produces and exports terrorism. The recent upheavals in Gilgit Baltistan have a message for India. It can no longer abandon its people living on the other side of LoC and must stand for them. India has to do everything within its means and beyond, use all resources at its command to support the struggle of the people of PoK for freedom from foreign occupation. It is the last hope for the redemption of the future of the generations of oppressed people of PoK.
© Copyright 2016 Indian Defence Review

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