How free is ‘Azad Kashmir’?

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The most interesting aspect of the legal governance of Azad Kashmir is the myth expressed in the epithet “azad”, as opposed to the “non-azad” part administered by India across the Line of Control. The constitution of Azad Kashmir gives it a lot of symbolic independence — for instance, it has a prime minister whereas Indian Kashmir only has a chief minister. But if you read Article 21 of the 1974 Interim Constitution Act passed by the 48-member Azad Jammu and Kashmir unicameral assembly in 1974, describing the Azad Jammu and Kashmir Council, it becomes apparent that the AJK PM is as completely subordinated to the PM of Pakistan as the CM of Indian-administered Kashmir is humbled through constitutional amendments. The council is chaired by the PM of Pakistan, and its secretariat virtually runs Azad Kashmir from Islamabad. In fact, the secretary of Kashmir Affairs in Islamabad may be more powerful than the elected PM of Azad Kashmir.

There’s a high court in Azad Kashmir, but an appeal against its decisions lies in the Supreme Court of Pakistan. In 1993, a case was brought to the high court saying that the Northern Areas administered by the federal government separately from Azad Kashmir be re-annexed to Azad Kashmir. The verdict found for the plaintiff and the AJK government was ordered to assume charge of the Northern Areas. An appeal was lodged at the Supreme Court, which reversed the high court judgement: “The contention that the Northern Areas was a part of the state of Jammu and Kashmir was not — and indeed could not — be denied by either government. That the Northern Areas were being looked after by the government of Pakistan administratively by virtue of the 1949 agreement between the two governments was not disputed either. The arguments at the Supreme Court were mainly confined to technicalities of the petition. The government of Pakistan contended that the issues rai-sed were basically political in nature and hence not amenable to discussion and judgment before a court of law. It was further argued that the High Court of Azad Kashmir lacked jurisdiction in this matter and could not issue a writ to the government of Pakistan”. All this is spelled out in a book, Indigenous Peoples and Ethnic Minorities of Pakistan: Constitutional and Legal Perspectives (2001) by Shaheen Sardar Ali and Javaid Rehman. Ali is an eminent lady lawyer of Khyber-Pakhtunkhwa and was a minister in the provincial cabinet when the book came out.

Both countries have tried to deal with their ill-digested annexations, at least once agreeing to “provincialise” them. India gave its part a “special status” under Article 370 of its Constitution but since 1953 has gradually reduced this status through amendments. Pakistan has done it through Article 21 of the 1974 Interim Constitution Act. Was this done separately or by mutual understanding? A classic study by Australian scholar Christopher Snedden, The Untold Story of the People of Azad Kashmir (2012), seeks to prove, on the basis of the written testimony of Sardar Abdul Qayyum, late PM of Azad Kashmir, that it was indeed so: “Bhutto was thought to have India’s approval to provincialise Azad Kashmir. He obtained this via an oral but secret and unwritten agreement made with India’s Prime Minister, Indira Gandhi, as part of their post-war Simla Agreement of 1972. Without consulting the people of J&K, New Delhi and Islamabad would settle the Kashmir dispute by dividing J&K along the renamed Line of control, after which India and Pakistan would fully incorporate their respective parts of J&K. Azad Kashmir would then become a fully-fledged province of Pakistan, something Bhutto possibly initiated when he came to power. The Simla Agreement stated that all ‘differences’ between India and Pakistan, including the Kashmir dispute, were bilateral issues. This seemingly negated the promised plebiscite. Pakistanis and Azad Kashmiris perceived (realistically) that, owing to India’s size, population and military strength, Pakistan’s military could not liberate J&K.”

Today, there’s trouble on both sides, and under the surface of politics, there’s an unspoken disagreement on how the regions have been “provincialised” without giving the rights that belong to the “normal” provinces. The reason is not far to seek: It’s the fallout of the delay caused by two nationalisms in South Asia in the “normalisation” of relations bet-ween India and Pakistan. The prime ministers of India and Pakistan today are both inclined to allow free trade to frontload this much-delayed process but are hindered by domestic challenges of extremism and polarisation.