K B Jandial
Farooq sahib, entire Jammu & Kashmir is our father’s property. Your emotional outburst at Kishtwar rally on continuously calling PoK as our (Indian) part has stirred up hornets’ nest, many calling you Pakistani which indeed, you are not. What made you so angry on the repeated loud claim by Indian Govt. is not understood especially when you have hundred times either asked for bombing the terrorist camps across the LoC or sensibly pleading for conversion of LoC in international border to permanently resolve Kashmir issue.
Not intending to join issue with you on the issue, the constitutional and legal aspect of the status of PoK needs to be explained. How PoK is “hamare baap ke property hai”? The undivided Jammu & Kashmir was the property of Maharaja Hari Singh that includes the part now called Pak Occupied Kashmir, against whose autocratic rule your revered father Sheikh Mohd. Abdullah and many others strongly fought. Under India Independence Act of 1947 read with Govt. of India Act of 1935 the princely state of J&K was to join either of the Dominions- India or Pakistan.
This right was exclusively given to the Ruler by Govt. of India Act of 1935. Its section 6.-(1) stated that ” A State shall be deemed to have acceded to the Federation if His Majesty has signified his acceptance of an Instrument of Accession executed by the Ruler thereof, whereby the Ruler for himself, his heirs and successors (a) declares that he accedes to the Federation as established under this Act, with the intent that His Majesty the King, the Governor-General of India, the Federal Legislature, the Federal Court and any other Federal authority established for the purposes of the Federation shall, by virtue of his Instrument of Accession. The Maharaja signed the Instrument of Accession in favour of India- fully supported by your father on 26th October, 1948 and by virtue of this the entire J&K became a part of India.
Now the question arises whether the part of our State that was forcefully occupied by Pakistan despite valiant resistance of Sheikh Sahib’s followers amidst slogans “Hamlawar hoshiyar, hum Kashmiri hai tyar” is our territory that have gone in adverse possession or not. Legally any property illegally occupied by any adversary does not cease to be property of the lawful owner, irrespective of the fact that it is difficult to retrieve. This is what PoK is.
Farooq’s challenging and angry tone on recapturing PoK while pointing figure to the mighty Govt of India that ” Yeh unke baap ke jagir nahi hai”. This is very offending, not only to GOI but also Jammuites, especially the refugees whose cases for finality have yet to be done even after 70 years. He has remained CM for three times and once his son once besides both having long stints in the Govt of India and during that time it never came to his mind that PoK is not India’s baap ke property and persuaded the mighty Govt. of India to give up claim on PoK. But he didn’t do it. Then why it struck him today to “challenge Govt of India to recapture it if they have the might?”
Legally, Article 1(3) of the Constitution of India says that “the territory of India shall comprise (a) the territory of the States… J&K is one of the States of the Union of India”. And this Constitution was approved by four representatives of J&K including Farooq’s father Sheikh Abdullah who was the towering leader. At that time Pakistan had illegally occupied our territory. This has to be read with section 4 of J&K constitution which says, “The territory of the State shall comprise all the territories which on the 15th day of August, 1947 were under the sovereignty or suzerainty of the Ruler of the State. So, PoK and Gilgit etc. that have gone in the adverse possession of Pakistan and China continue to be J&K territory and by virtue of Article 1 (3) is Indian territory.
And then why did J&K constitution make special provision of for return of our state subjects now living in PoK under section 6 (2). And by virtue of this provision they become citizen of India. This was also agreed to by the Central Government in Delhi agreement of 1952. If PoK is not Indian territory then how come people living in PoK can become Indian citizens? Since we treat PoK our part, we are concerned with people’s lot. Their comparatively poorer economic conditions as compared to ours area is always a matter of concern. Why? Because they are our brethren living in our baap’s land.
Then there is section 48 of J&K Constitution that says, ” … unless the area of the State under the occupation of Pakistan ceases to be so occupied and the people residing in that area elects their representatives 25 seats ( now 24) in the Legislative Assembly shall remain vacant and shall not be taken into account for reckoning the total membership of the Assembly.”
With this constitutional position, how can Farooq Abdullah say that PoK is not India’s baap ke property? It doesn’t behove him to say so when he has taken oath of this very constitution several times which says that PoK is our territory. Even Sheikh Abdullah on return to mainstream politics from political wilderness in February 1975 also didn’t change the Constitution to give up our (India’s) claim on PoK. It is also widely perceived that Indian Army would have re-conquered parts of the State beyond Kohala but were stopped by Pt. Nehru on the insistence of Sheikh Abdullah.
Yes, practically it is difficult to recapture the lost territory. The practical solution as he has rightly said many times is to convert LoC into International Border which should have happened in Shimla Agreement. Farooq Sahib, PoK is decidedly our baap’s territory that is in adverse possession and we may be able integrate with this part of J&K in immediate future. One doesn’t know when Pakistan will further disintegrate (as happened in East Pakistan) and PoK returns to our fold.
(feedback: kbjandial@gmail.com)
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