The Legal Basis for India’s Claim to Pakistan-Occupied Jammu & Kashmir

Introduction
The British, as they prepared to leave India in 1947, wanted to hand over the princely state of J&K to Pakistan. When Maharaja Hari Singh acceded to India on 26 October 1947, Britain turned a blind eye to Pakistan’s invasion of the state through tribal raiders. Consequently, one part of the state’s territory fell into Pakistan’s control following the Pakistan-backed occupation and the declaration of a Provisional Government on 24 October 1947. Gilgit-Baltistan (GB) was handed to Pakistan by British military officers heading the Gilgit Scouts, who staged a coup and raised the Pakistani flag in Gilgit on 1 November 1947. Historical accounts suggest that the British prevented Indian troops from launching an offensive to reclaim Gilgit-Baltistan, citing the region’s difficult terrain.

With regard to Azad Jammu and Kashmir (AJK), General Douglas Gracey, then Commander-in-Chief of the Pakistan Army, justified Pakistan’s control over the territory and explained that if India gained it, the country would acquire a ‘strategic advantage’ over Pakistan, allowing “the Indian Army to secure the rear gateway to Pakistan through which it can march in at any time it wishes.” There is also circumstantial evidence that certain officials in the UK Commonwealth Relations Office were aware of Pakistan’s intentions toward Jammu and Kashmir. Among them was General Geoffry Scoones, the principal staff officer to the Secretary of State.

The plan to invade Kashmir with tribal lashkars, led by Khurshid Anwar, has been well documented by Maj. Gen. Akbar Khan in Raiders in Kashmir and will not be recounted in this report. The tribal invasion prompted Maharaja Hari Singh to accede to India—a decision made on 26 October 1947, followed the next day by the landing of Indian troops in Srinagar, which prevented the Kashmir Valley from falling to the tribal marauders. However, the present territories of AJK and GB slipped out of India’s control due to Pakistan’s tribal invasion and British involvement in the coup in GB.

On 31 October 1947, Maj. William A. Brown, a British Army Officer from the Frontier Force Regiment, seconded to the Gilgit Scouts by the Maharaja of J&K, launched Operation Datta Khel. This was a planned coup and executed by Maj. Brown and two other fellow officers of the Gilgit Scouts in the Gilgit Agency, then part of the princely state of J&K. The coup was bloodless, largely military-led, and involved minimal civilian participation. Maj. Brown subsequently handed over administrative control of the GB territory to Pakistan, an illegal act, as the Maharaja had already acceded to India some days before.

The coup led by Maj. Brown cast a long shadow over Britain’s role in the Kashmir conflict. According to Narendra Sarila, a former aide-de-camp to Lord Mountbatten, British thinking at the time was that the corridor running north toward Sinkiang in J&K offered an ideal place for a British base. According to him, Pakistan appeared to be a safer strategic partner than India. The Gilgit coup occurred on account of pro-Pakistan sentiment amongst both British and Muslim officers serving in the Gilgit Scouts. Alastair Lamb says that a few British officials and soldiers encouraged Maj. Brown and Capt. Mathieson (another officer in the Gilgit Scouts) to remain in Gilgit on the eve of the transfer of power. The coup itself was no surprise to figures such as Lt. Col. Roger E. Bacon, the Political Agent in the Gilgit Agency till July 1947, who acted as a liaison between Maj. Brown and the Government of Pakistan.

In his memoirs, Maj. Brown claimed he carried out the coup because he was “angry” that the Maharaja had acceded to India rather than Pakistan. Although Brig. Ghansara Singh succeeded Lt. Col. Roger Bacon as Political Agent, the latter had already conveyed his intentions to Brown in July 1947. Amjad Ayub Mirza, a PoJK activist living in the UK, states that the decision on Gilgit Agency was taken during a meeting between Maj. Brown and Lt. Col. Bacon in July 1947 in Peshawar. The British had put in place their plan to keep India away from GB. After the coup, Brown informed authorities in Peshawar of the change of control and requested that Pakistan send a political agent. His first telegram, addressed to Khan Abdul Qayum Khan, Premier of North West Frontier Province, described a ‘revolution’ in Gilgit, claiming that “the entire pro-Pakistan populace has overthrown the Dogra regime.” He then falsely claimed that “imminent chaos and bloodshed, Scouts and Muslim State Forces taken over law and order” and requested “higher authority” to be approached immediately, meaning Pakistan. Maj. Brown also wrote to Col. Bacon, who was by now Political Agent of the Khyber Pass, with headquarters in Peshawar, requesting assistance.

After carrying out the coup, Maj. Brown sent a telegram to the Kashmir state authorities claiming that the ‘situation’ in Gilgit was hopeless and that the entire population supported Pakistan. Maj. Aslam Khan, once deputy to Maj. Khurshid Khan Anwar, who had organised and led the tribal invasion of Kashmir, soon arrived to take charge of Gilgit Agency. Another development followed in November 1947: the so-called accession of the territories of Hunza, Nagar, and Puniyal to Pakistan. Maj. Brown reproduced the texts of these three accessions in his book. While all three had warned Hari Singh of their intentions earlier, that they chose to accede to Pakistan after Hari Singh had acceded to India made these accessions infructuous.

The Karachi Agreement of 1949
While Maj. Brown handed over control of GB to Pakistan, the terms on which its administration was formalised were set out in the Karachi Agreement signed in 1949. Marked “Secret,” the agreement was signed by representatives of the Pakistan Government, the President of the Azad Kashmir Government, and the President of the All Jammu and Kashmir Muslim Conference. There was no representative from GB. Perhaps there was no need, as the real purpose of the Karachi Pact was to delineate powers between the Federal Government in Islamabad and the so-called Azad Jammu and Kashmir government. The role of the All Jammu and Kashmir Muslim Conference in this affair was more by way of trying to give Pakistan legitimacy in the occupied territory through a local party.

This document became public only in 1993, when it was printed in the verdict of the High Court of AJK on the writ petition filed in 1990. Under the subject heading “Matters under the purview of the Pakistan Government” in the Agreement, one entry reads: “All affairs of the Gilgit and Ladakh areas under the control of the Political Agent in Gilgit.” In effect, this gave Islamabad a major role in several important areas, including defence, UN-related matters on the plebiscite, foreign policy, and all Kashmir-related activities within Pakistan. This marked the beginning of Pakistan’s direct rule over PoJK by a Joint Secretary in the KANA Division in Islamabad.

Over the following decades, Islamabad introduced laws to create an appearance of self-governance in GB, the most recent being the GB Order of 2018. Despite periodic shifts in the degree of administrative control, Islamabad’s hold over GB has remained unchanged. More importantly, as will be seen in the latter part of this report, increasingly, efforts to integrate GB and AJK into Pakistan have gradually taken shape, even as Pakistan continues to maintain the façade of a plebiscite eventually determining the status of the occupied territories.

The 1993 AJK High Court Judgment
Pakistan’s position on GB is clearly articulated in the 1993 judgment of the AJK High Court. The facts of the case are straightforward: a writ petition was filed in 1990 by Malik Muhammed Miskeen in the High Court of AJK. The petitioners challenged the propriety of the Northern Areas being administered by the AJK government and complained of being denied fundamental rights, as well as representation in the government and other national institutions.

The AJK High Court delivered its judgment on 8 March 1993, ruling, among others, that the GB areas are “admittedly not a part of Pakistan.”The Supreme Court of Pakistan subsequently concluded that the Northern Areas are a part of Jammu and Kashmir State, but are not part of Azad Jammu and Kashmir, as defined in the Interim Constitution of 1974 of Azad Jammu and Kashmir.The Interim Constitution defined ‘Azad Jammu and Kashmir’ as “the territories of the State of Jammu and Kashmir which have been ‘liberated’ by the people of that State and are for the time being under the administration of Government and such other territories as may hereafter come under its administration.”

The 1993 judgment traces the origins of the Kashmir issue from a Pakistani perspective, extensively citing Alastair Lamb to support Pakistan’s position. Two observations from the ruling stand out. First, the Pakistan Government admitted, in a written statement, “as true” that the Northern Areas do not form part of Pakistan’s territory as defined in the Constitution of 1973. The Government of Pakistan goes on to state: “However, it is explained on account of that omission, it may not be concluded that the said areas are part of the territories of Azad Jammu and Kashmir.” The AJK High Court said: “The explanation is self-contradictory when it is accepted that these areas are not part of Pakistan,” adding that “then it does not lie in the mouth of the respondent (Pakistan Government) to deny the geographical status of the areas for their being part of the ‘liberated’ areas of the State.” This led the Court to conclude as follows: “Be that as it may, the fact remains that these areas (Gilgit Baltistan) are admittedly not part of Pakistan.” Thus, while the occupied territories are not constitutionally part of Pakistan, the Court simultaneously deemed GB to be part of AJK, as it considered them “liberated” areas.

The judgment thus implies that PoJK was separated from the former State of J&K by design. The claim that GB is part of the ‘liberated’ territory of AJK makes this clear. Thus, the High Court ruled, the AJK government should assume administrative control over the Northern Areas and “annexe” them to the administration of AJK.

Two other conclusions from the judgment merit attention. First, the court asserted that “the detachment of Northern Areas from the rest of Azad Jammu and Kashmir is tantamount of violation of the Resolutions of the Security Council of March 30, 1951 and January 24, 1957.” Second, it observed that “the Azad Government represented the whole of the State of Jammu and Kashmir, it’s such status (de facto) has been acknowledged by the United Nations.”

It is important to recall that when the provisional government was announced on 24 October 1947, the state was still in the hands of Maharaja Hari Singh. Further, it was announced in the backdrop of the tribal lashkar raid on Kashmir initiated on 22 October 1947. On 26 October 1947, the Maharaja formally acceded to India, thereby making the entire territory of the Princely State legally part of the Indian Union. Consequently, there was no basis for the UN to recognise the Azad government as representing the whole State of J&K. On the contrary, the UN termed the Azad J&K government as “local authorities”. Josef Korbel, a senior member of the United Nations Commission for India and Pakistan (UNCIP), clarified this position, stating: “By ‘local authorities’ we mean the Azad Kashmir people though we cannot grant recognition to the Azad Kashmir Government. We have gone so far as we could to meet the point of view of the Azad Kashmir people. We have tried to deal with the de facto position. But we cannot lose sight of the fact that the State of Jammu and Kashmir still exists as a legal entity. We have to respect its sovereignty.”

This demonstrates that there was no recognition of the de facto situation in AJK, contrary to the claim made by the AJK High Court. Finally, the 13 August 1948 UNCIP Resolution required Pakistan to undertake three actions—none of which were ever implemented. First, it stated: “As the presence of troops of Pakistan in the territory of the State of Jammu and Kashmir constitutes a material change in the situation since it was represented by the Government of Pakistan before the Security Council, the Government of Pakistan agrees to withdraw its troops from the State.”

The second principle forming the basis of a proposed truce agreement between India and Pakistan required Pakistan to “use its best endeavour to secure the withdrawal from the State of Jammu and Kashmir of tribesman and Pakistan nationals not normally resident therein who have entered the State for the purpose of fighting.” And the last principle was that, “Pending a final solution, the territory evacuated by the Pakistan troops will be administered by the local authorities under the surveillance of the Commission.”

The judgment cites the UN Security Council Resolution of 30 March 1951, which summarised earlier resolutions on Jammu and Kashmir. The AJK High Court then concluded that “Pakistan, at all levels, adhered to the aforesaid pronouncements of the Security Council, i.e., 21 April 1948, 3 June 1948, 14 March 1950 and 30 March 1950 and to the UNCIP resolutions of 13 August 1948 and 5 January 1949.”This can be tested against the first Resolution, i.e., 21 April 1948, which stated that Pakistan would endeavour “to secure the withdrawal from the State of Jammu and Kashmir of tribesmen and Pakistani nationals not normally resident therein who have entered the State for the purpose of fighting.” The UN, perhaps diplomatically, avoided directly naming the Pakistani Army, which by May 1948 was already operating inside Jammu and Kashmir. Pakistan misinterpreted the facts before the AJK High Court by claiming compliance with UN Resolutions—a claim the Court repeated without examination.

In the following section, the High Court averred, “Pakistan at all levels, adhered to the aforesaid pronouncements of the Security Council. Therefore, no idea or scheme which is derogatory to the well-considered and consistent policy of Pakistan may be entertained at any cost.” It is this logic which led the Court to state: “By allowing integration of Northern Areas to any Province of Pakistan would tantamount to negation of the Pakistan’s stance at home and in the Security Council.”This position remains the foundation of Pakistan’s policy on J&K in international forums—it allows Pakistan to maintain administrative control over PoJK and GB without formally integrating them as provinces.

The Supreme Court of Pakistan, in its 14 September 1994 ruling on the government’s appeal against the AJK High Court judgement, held that “No doubt, that Northern Areas are part of the Jammu and Kashmir—but not of ‘Azad Jammu and Kashmir. Therefore, the government (i.e., AJK Government) need not take administrative control of these areas.”

Later, in the 1999 Al-Jehad Trust Vs Federation of Pakistan case, the Supreme Court reaffirmed that the Northern Areas were constitutionally part of the state of Jammu and Kashmir. It directed the Government of Pakistan to ensure the provision of basic human rights and to establish political and administrative institutions within six months, while emphasising that such actions must not undermine Pakistan’s position on the Kashmir dispute.

Over the years, Islamabad has introduced measures to grant limited legal and constitutional representation to the people of the occupied areas. However, it continues to maintain direct control over both regions. By keeping GB administratively separate from AJK, Pakistan sustains the veneer of legitimacy for its claim that both are “liberated” territories whose final status awaits determination through a UN-sponsored plebiscite. The 1993 judgment made it clear that GB has been, and remains, part of the State of Jammu and Kashmir. As seen above, the same logic applies to the Azad Jammu and Kashmir territory.

Recent Developments
Following the 1993 judgement, the Pakistan government undertook several measures concerning both AJK and GB, primarily aimed at tightening Islamabad’s control over these regions. In AJK, efforts were made to appear as though more authority was being developed to the Legislative Assembly, while in GB, Pakistan sought to formalise systems of governance. The two instruments used for this purpose were the 2009 and 2018 orders. The Gilgit-Baltistan Empowerment and Self-Governance Order, 2009 established a local government system and a Legislative Assembly.The Order changed the nomenclature of the region from “Northern Areas” to “Gilgit Baltistan”. This was subsequently overtaken by another order issued in 2018, which significantly curtailed the legislative powers of the assembly, consolidating authority in the hands of the Prime Minister of Pakistan, who also chaired the GB Council. A year later, Pakistan’s Supreme Court observed that some parts of the order were unconstitutional and directed Islamabad to ensure that the rights of the people were upheld.

In 2020, Pakistan announced its intention to grant GB “Provisional Provincial Status”.However, no substantive progress has been made since, and Islamabad continues to retain powers over the region’s governance. Under Article 60(2) of the 2018 Order, the Prime Minister of Pakistan remains the chairman of the GB Council, ensuring federal dominance.The same Order defines a “citizen” as “a person who has a domicile or residence in Gilgit-Baltistan and who is a citizen under the Pakistan Citizenship Act, 1951”,effectively confirming that, in practice, the region functions as part of Pakistan.

The Sartaj Aziz Committee, in its 2017 report, had recommended granting GB de-facto provincial status without de-jure integration.This is precisely what Pakistan has done over the years. Thus, the UN plebiscite is being used as an excuse to maintain ambiguous control over both the regions, collectively known as PoJK.

In the case of AJK, the Karachi Agreement laid down on paper what had been initiated in terms of government in 1948. AJK adopted its own Constitution in 1974, which was amended by the 13th Amendment in 2018.Notably, 52 subjects in the Constitution were transferred from the AJK Council to the Legislative Assembly, with the Pakistan Government left to deal only with defence, foreign affairs, currency, and UNCIP Resolutions. Article 31 of the Interim Constitution increased the powers of the Legislative Assembly through the introduction of the Third Schedule, divided into two parts:Part A, covering defence, security, and trade, remains under the exclusive control of the Government of Pakistan, while Part B falls under the jurisdiction of the AJK Assembly and Government. The joint sitting of the Legislative Council and Assembly passed the 13th Amendment, which also removed the word “Act” from the preamble of the Interim Constitution of 1974, granting the government of AJK more powers than before. Technically, the AJK government now enjoys administrative, financial, and legislative powers similar to those of Pakistan’s provinces.

Two other developments are of importance here. First, with the launch of the China-Pakistan Economic Corridor (CPEC)—primarily aimed at enhancing Pakistan’s energy and connectivity infrastructure—China has become a player in PoJK. It is also important to recall that China was always the third party in the Kashmir issue due to the signing of the 1963 Border Agreement with Pakistan. However, with CPEC, China began to dictate terms to Pakistan. One of the reported points of discussion in this context was Beijing’s insistence that GB be declared a province of Pakistan to give greater stability to CPEC.The second development concerns Pakistan’s increasing efforts to integrate PoJK into its federal structure, a trend that calls for India to take timely and concrete countermeasures.

Conclusion
There is no reason for India to hesitate in seeking the reintegration of PoJK. The colonial-era strategy to keep India away from Jammu and Kashmir, combined with Pakistan’s own ambitions over the princely state, has historically complicated the question of accession. Nevertheless, India has the legal basis to lay claim to the territory illegally occupied by Pakistan. Islamabad has chosen to keep the two regions of PoJK administratively separate, even though, in their eyes, both territories have been “liberated”. While AJK possesses a functioning political framework, GB’s governance structure remains underdeveloped. PoJK, as a whole, has no standing in international law. Therefore, Pakistan has done everything short of granting de-jure recognition to ensure that these territories remain within the ambit of Pakistan’s control.

The Indian position was summed up in mid-2024 by Rajnath Singh, India’s defence minister, who said, “India will never give up its claim on Pakistan-Occupied Kashmir, but it won’t have to capture it with force because its people, on their own, would want to be part of India after seeing the development in Kashmir.” This could be a statement of intent with a strategy in mind. The question is how best to achieve the end result. Capturing PoJK without the use of force only leaves the covert option.

The strategic implications of India raising the voice of the people of the region will have a tremendous impact on regional security, help break China’s stranglehold over PoJK and cut off the physical link that currently exists between China and Pakistan. The primary question is the methodology to be adopted to achieve this goal and whether the present government intends to convert rhetoric into action any time soon. India’s policymakers must find ways and means to arrive at such an arrangement.

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