Pakistan SC Decision: Another Wake Up Call For New Delhi
The 2019 decision of seven Judges of the Pakistan Supreme Court in Civil Aviation Authority v Supreme Appellate Court Gilgit-Baltistan purportedly on the "historical and constitutional issue involving the status, authority and powers of Gilgit-Baltistan" is yet another instance of how Pakistan chooses to distort the Kashmir narrative for political expediency. The judgment penned by the Chief Justice of Pakistan quotes from my book, Unravelling the Kashmir Knot, and yet fails to counter the legal principles set out in the book that would have negated each finding made by the Court in its judgment.
The Court has held that the origin of the Kashmir Issue lay in the "accession of Kashmir to India by the Hindu ruler of a Muslim majority state, which was contrary to the expectations of the population and to the basis professed to be preferred by the British for accession by the Princely States." The Court listed the repeated declarations by New Delhi of its commitment to a free and impartial plebiscite to decide whether the princely state of J&K is to accede to India or Pakistan. The Court went on to formulate the main issue as follows : "Would granting fundamental rights and a status, role and recognition to the people of GB within the constitutional scheme of Pakistan prejudice Pakistan's cause for the resolution of the Kashmir dispute by such appropriate means as may be acceptable to Pakistan (which could, for example, be a United Nations-sanctioned and supervised plebiscite)?". The Court candidly acknowledged that while "Azad J&K" and Gilgit-Baltistan are considered to be a part of the disputed J&K, "it has always remained completely under Pakistan's administrative control." The Court reiterated its 1999 decision in Al-Jehad Trust v Federation of Pakistan for the proposition that the people of Gilgit-Baltistan (then called Northern Areas) were "citizens of Pakistan for all intents and purposes". The Court took the view that it has "not hesitated in the past to give legal recognition to the aspirations of people who have unhesitatingly, enthusiastically (and, if we may put it like that, joyously) cast their lot with Pakistan right from the beginning" and that it would "not hesitate now to take the matter further" to provide "judicial imprimatur" and "permanence" to the Order annexed to the judgment, which is to the effect that Pakistan "intends to give Gilgit-Baltistan the status of a provisional Province, subject to the decision of the Plebiscite to be conducted under the UN Resolutions" and "to provide for greater empowerment so as to bring Gilgit-Baltistan at par with other provinces and to initiate necessary legislative, executive and judicial reforms for the aforesaid purposes". Simply put, Pakistan has in effect annexed Gilgit-Baltistan as its province.
Had the Court objectively studied the first four chapters of the book and the authoritative sources referred to in the chapters, it would have found that the origin of the Kashmir Issue lay in the need of the British to keep the Northern Areas of J&K (and N.W.F.P.) free from Indian control so that the Islamic crescent from Turkey to China along the then U.S.S.R. remained intact – after all, such Islamic crescent formed the ideological boundary for the British to contain Russian influence from travelling towards the oil-rich Middle East. The very rationale for the British to partition the Indian sub-continent was to create a sovereign state friendly to the British – a "Pakistan" with the strategic N.W.F.P.- for its ongoing Great Game with Soviet Russia. The British assumed that the Muslim majority princely state of J&K would accede to Pakistan, which would continue to put the Gilgit-Baltistan region at their disposal. And so when the sovereign ruler of J&K acceded to India on 26 October 1947, it was the British Gilgit Scouts that carved out the Gilgit-Baltistan region of J&K on the night of 31 October 1947, hoisted the Pakistani flag on what had by then become Indian territory and asked Pakistan to take it over.
As regards the view taken by the Court that the accession of J&K to India was "contrary to the expectations of the population", there is simply no evidence to substantiate that the population of J&K – spread over Jammu (including the then jagirs of Poonch and Chenani), Kashmir, Ladakh, Gilgit-Baltistan and the frontier illaqas - would have opted for Pakistan. And as far as the basis for accession professed by the British is concerned, the British law that created modern day India and Pakistan, and which was accepted by them (namely, the Indian Independence Act of 1947 and the modified Government of India Act of 1935), provided that the sovereign ruler of a princely state would have the exclusive authority to offer accession to India or Pakistan or to remain independent, regardless of the religious complexion of his state. This, in fact, was also the consistent stand of Pakistan before the UN as reflected in the UNSC debates on the Junagadh Question and the Hyderabad Question. The Court is therefore patently wrong in asserting that the accession of J&K to India was contrary to the basis of accession professed by the British.
Further, had the Court ventured to the fifth chapter of the book, it would have discovered that New Delhi lacked competence under the said law to commit to a plebiscite to determine the accession of J&K. Under such law, the wishes of the people were alien to the question of accession of a princely state. It is well settled that an executive cannot clothe itself with authority by making promises inconsistent with the very constitution that gave it birth. And as the same law created Pakistan, it would be fair to say that the very law that created Pakistan made J&K a part of India. Should Pakistan disown such law, "Pakistan" itself would not exist!
As regards the UN resolutions for plebiscite in J&K, a perusal of the sixth and seventh chapter of the book would have led the Court to the view that these too were without jurisdiction and, in fact, contrary to the UN Charter.
It is Pakistan's own case that the territory of J&K is not part of Pakistan and neither does its constitution declare it to be so. In light of the accession of J&K to India in terms of the law that created modern-day India and Pakistan, J&K is declared by the Indian constitution to be part of India. The residents of J&K are therefore legally and constitutionally Indian citizens. The question does not arise of Pakistan giving the Gilgit-Baltistan region of J&K the status of a Pakistani province or of treating its residents as Pakistani citizens. Surely the Court knew that it was being economical with the truth when it baldly claimed that Indian citizens residing in the territory of J&K forcibly occupied by Pakistan had aspirations to "cast their lot with Pakistan right from the beginning" and that this had been done by them "unhesitatingly, enthusiastically" and even "joyously". Rather, there is relative clarity in international law as also in the ICJ's pronouncements in Namibia (1971) and in Nicaragua (1984) that the very presence of Pakistan in Gilgit-Baltistan and "Azad J&K" amounts to aggression. It is indeed a sad reflection on any constitutional Court when it seeks to legalise the fruits of aggression.
That takes us to what should New Delhi do. It appears that New Delhi's policy is to do nothing, and to do that well. At best, there will be routine impotent protests by New Delhi, such as those at Pakistan and China conceiving their Economic Corridor through the Indian territory of Gilgit-Baltistan. China continues to invest heavily in the region and to attract international support. More than 100 heads of state are reported to have attended China's OBOR initiative in Beijing in April 2019. New Delhi seemed satisfied by just staying away from the meet. It is high time that New Delhi wakes up and takes robust action in line with the Parliamentary resolution to recover the territory of J&K under the occupation of Pakistan and China. Towards this end, New Delhi would do well to consider the practical, and somewhat novel steps detailed in the book consistent with its constitutional obligations. But then, as a reading of the book will reveal, the one pattern that can be discerned from 1947 to 2019 in New Delhi's Kashmir policy has been its utter disregard for the constitutional law governing it. That, of course, would be the subject of another article.
Dr. Aman Hingorani is an Advocate-on-Record & Mediator at Supreme Court of India and Author of Unravelling the Kashmir Knot.
[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]