Apart from the chest-thumping at the recent election rallies in Maharashtra and Haryana and the latest round of military operations launched across the northwestern border, educational institutions are being pressed to organise debates on this issue.
 
A common theme that pervades all these attempts to legitimise recent actions over J&K is the blame game targeting other political parties that governed the Centre and J&K for all that went wrong until August 2019. Arguably, the favourite whipping boy of critics of the Kashmir policy is Pandit Jawaharlal Nehru who was the Prime Minister at the time of J&K’s accession to the Indian Union in October, 1947.
 
An oft-repeated charge against Pt. Nehru was that he did not show enough courage to beat back the invaders who descended on J&K in September 1947. Instead, he is accused of internationalising the matter by making a complaint to the United Nations at the end of December that year.
 
So the picture fabricated for public consumption is one of contrast between the “weakness” of a “vacillating” leader in 1947 and the “aggressiveness” of his “decisive” successor in the 21st century. This is what current and successive generations are expected to lap up as the gospel truth about the J&K affairs between 1947-48 as compared to the developments in the 21st century.  
 
Unfortunately, in the 15th year of the implementation of The Right to Information Act, 2005 (RTI Act), crucial official papers that would help the citizenry, particularly, the millennials and their successors of Generation Z, and of course academia, to understand the Kashmir issue better, are being withheld on government orders. The Nehru Memorial Museum and Library popularly known as Teen Murti Library, under instructions from the Ministry of External Affairs, has denied me access to the files about J&K put together between 1947-49 by India’s 2nd Army Chief- Sir Roy Bucher.
 
The Background
Readers might remember my piece published in 2016 around the 68th anniversary of J&K’s accession to the Indian Union (October26-27). I had published multi-colour scanned copies of the Instrument of Accession signed by the then Ruler of J&K, Maharaja Hari Singh and accepted by the then British Vice Roy in India, Lord Louis Mountbatten of Burma in 1947. The Wire was kind enough to resurrect that piece in the aftermath of the legislative exercise made in August 2019 to change J&K’s status in the Indian Constitution. 
 
In the interim, my Quest for Transparency (a phrase borrowed from the website of the Prime Minister’s Office) continued, until it led me to a 20-odd page transcript of an interview of Sir Francis Robert Roy Bucher, 2nd Commander-in-Chief of the Indian Army (who took over from General Sir McGregor MacDonald Lockhart) conducted by noted biographer B. R. Nanda a few decades after the former’s retirement in October, 1949.
 
The transcript of the interview with Sir Roy Bucher makes for very interesting reading with titbits about what happened in J&K narrated from memory and also his love for India and the respect he had for top leaders like Pt. Nehru, Sardar Vallabhbhai Patel and Sir C. Rajagopalachari- first Governor General of independent India. This crucial interview contains multiple references to files and papers related to J&K affairs that were compiled between 1947 and October 1949 by Sir Roy Bucher and handed over to NMML.
 
When I looked up, its index of archival papers, this file, Sir Roy Bucher had handed over to NMML was catalogued “closed”. Surprised that NMML would be holding back government records and papers from public scrutiny even after more than 70 years had lapsed, I inquired with some of the senior officials about this practice. He conceded that certain archival material is indeed withheld from scholars and researchers on two grounds:
 
a) under instructions from the Government department concerned; and
 
b) under instructions from the donor or his/her family who hand over archival materials to NMML.
 
The RTI Intervention  
So at the beginning of this month (October, 2019) I submitted a request under the RTI Act to NMML, through the RTI Online Facility, seeking the following information:
 
“1) A clear photocopy of any list of records, documents, papers, microfilms, microfiche and any other material available in the holdings of the Nehru Memorial Museum and Library that are closed to the public, under instructions from any agency in or under the Government of India;
 
2) A clear photocopy of any list of records, documents, papers, microfilms, microfiche and any other material available in the holdings of the Nehru Memorial Museum and Library that are closed to the public, under instructions from any agency in or under the State or Union Territory Governments;
 
3) The name of the agency which has issued instructions, the date of such instruction and the period for which every such record, document, paper, microfilm, microfiche or other materials referred to at para nos. 1 and 2 above, must remain closed to the public, and
 
4) Inspection for a period of 5 hours, the files and papers pertaining to Jammu and Kashmir handed over to the Nehru Memorial Museum and Library by General Sir Roy Bucher, 2nd Chief of the Army Staff of India, as mentioned in his interview with eminent historian Shri B.. R. Nanda, which is recorded in the Sir Roy Bucher Transcripts available in your holdings.
 
Kindly make arrangements for supplying copies of all papers and micro-films or micro-fiche, if any, or any other materials that I may identify during the inspection.”
 
The PIO’s reply
The Public Information Officer (PIO) was prompt enough to send a reply, free of charge, within 20 days of receiving the RTI application. He attached a list of archival papers that are closed for public scrutiny under orders from the Central Government or under directions from the donor. A study of the list of “closed papers” attached to the PIO’s reply reveals the following interesting facts:
 
1)Sir Roy Bucher’s papers (except for the transcript of the interview with Shri B. R. Nanda) are closed under orders from the Union Ministry of External Affairs;
 
2) Certain papers of Shri Pyarelal who was Personal Secretary to Mahatma Gandhi in his later years and Dr. Sushila Nayyar who was Gandhiji’s personal physician, are closed from public scrutiny under directions from Shri Harsh Nayar. This restriction is to run for a period of 30 years. The start date of the embargo is not revealed in the RTI reply;
 
3) Certain papers relating to former Prime Minister Smt. Indira Gandhi are closed under instructions from the Indira Gandhi Memorial Trust;
 
4) Certain papers of Shri Uma Shankar Dixit, former Union Minister and Governor of my home state, Karnataka during the 1970s (he was removed within a year and a half of appointment when the Janata Government came to power in 1977) under instructions from his daughter Smt. Sheila Dixit, former Chief Minister of Delhi, who also passed away recently. Whether her heirs will continue to press for this secrecy remains to be seen;
 
5) Certain papers of Shri K. Hanumanthaiah, former Chief Minister of my home State Karnataka, (he was instrumental in completing the construction of Vidhana Soudha which houses the State Legislature and certain segments of the Government Secretariat) under instructions from one Shri V.. Shivalingam; and
 
6)Certain papers donated by noted author Ms. Nayantara Sahgal who has instructed maintenance of secrecy until 2033. Incidentally, Ms. Sahgal is the niece of Pandit Nehru and the daughter of his sister Smt. Vijayalakshmi Pandit who was India’s Ambassador to the United Nations and the first woman President of the UN General Assembly in 1953.
 
The list that NMML’s PIO provided also includes papers of Mr. Gordon B Halstead, who was associated with Gandhiji until the British Government ordered him out in 1932 and those belonging to a former officer of the Indian Police Service, Shri Ashwini Kumar. The PIO of NMML endorsed the note prepared by one Ms. Priyamvada, staffer of NMML that Sir Roy Bucher’s papers and the rest listed above cannot be permitted for anybody to see or consult. 
 
Click here for the RTI application and reply.
 
What is problematic with the PIO’s reply
While there might be a justification for keeping personal papers of public figures donated to the NMML, away from public scrutiny for a limited period or even eternally, every claim of secrecy for papers relating to official matters of the Central or State Government must be tested on the touchstone of the RTI Act. Mere executive instructions issued by a babu are not adequate to prevent access to such records under the RTI Act. 
 
Section 7(1) of the RTI Act clearly states that a request for information made under this law can be refused only on the basis of the exemptions listed under Sections 8 and 9. No other reason is valid. NMML is a public authority and its policies of allowing or refusing access to records relating to governmental affairs must be based on the standards and procedures of the RTI Act. Refusal to provide access to Sir Roy Bucher’s papers related to J&K and other records relating to government affairs must be justified under the exemptions provided in the RTI Act, subject to the public interest override in Section 8(2) of the Act. This is the implication of the overriding effect that Section 22 gives the RTI Act over all other laws, rules, regulations or instruments that have the effect of a law. MEA’s instructions alone, for maintaining confidentiality of these papers, cannot insulate Sir Roy Bucher’s J&K papers from public scrutiny.
 
I will do the usual appeals in this case and report the developments to you in due course.
 
Pt. Nehru contemplated a strike on Pakistan to save J&K in 1947-48
Many writers and his bitterest critics have accused Pt. Nehru of not going the whole length of the way to take back the territory of J&K that had been seized by invaders with active support from across the border, in 1947, after it acceded to independent India soon after Dusshehra and Eid. Sir Roy Bucher seems to know otherwise. In his interview with Shr B. R. Nanda he remembers the tumultuous events as follows:
 
“…What went on within the Indian Cabinet I do not know, but I have two letters at home [no I think they may even be in the file here (i.e. at NMML); anyway I have copies of them at home if they are not in the file] from Pandit Nehru; he had become very perturbed about the shelling of Akhnur and the Beripattan Bridge by Pakistan heavy artillery from just within Pakistan; he enjoined me to do all I could to counteract this. There was nothing which one could do except counter-shell. In one his letters Panditji wrote: “I do not know what the United Nations”- I am quoting – “are going to propose. They may propose a cease-fire and what the conditions are going to be I do not know. If there isn’t going to be a cease-fire, then it seems to me that we may be faced with an advance into Pakistan and for that we must be prepared. I assured my Prime Minister that all steps would be taken to meet any eventuality;” (emphasis supplied)
 
Sir Roy Bucher continues the narrative saying, a few days later the then Defence Minister Sardar Baldev Singh telephoned him to announce a cease-fire. Sir Roy Bucher says, he drafted the communication to his counterpart in Pakistan, General Gracey, about the ceasefire showed it to Pt. Nehru in the Lok Sabha and signalled it to Pakistan to stop the hostilities. The justification for the cease-fire was made as follows:
 
“My Government (Indian Govt.) is of the opinion that senseless moves and counter-moves with loss of life and everything else were achieving nothing in Kashmir; that I (Sir Roy Bucher) had my Government’s authority to order Indian troops to cease firing as from a minute or so before midnight of 31st December...” 
 
The transcript wrongly mentions 1948 as the year in which the cease-fire was signalled. In fact this action was taken at the stroke of midnight when the calendar changed from 1947 to 1948. Sadly, NMML does not permit copying of more than 20% of these old transcripts. So I had to pick and choose from the 20-odd page long document, extracts that serve the purpose of this despatch. 
 
Click here for extracts from the transcript of Sir Roy Bucher’s interview with Shri B. R. Nanda. 
 
In order to get to the bottom of the truth, the Sir Roy Bucher files and all other related papers, transcripts and microfilms in the NMML holdings as well as archival materials held in the National Archives (from where I obtained a scanned copy of J&K’s Instrument of Accession) and the MHA and MEA must be made public without any delay.. Very few members of the generation that witnessed the developments in J&K in 1947 are still with us today and their narratives of the developments that led to J&K’s accession to India are at variance with each other on some crucial issues. Transparency of contemporary official records is indispensable to counter propagandist versions of contemporary history. 
 
The NDA-II Government promised to declassify papers held in secret for several decades about Netaji Subhash Chandra Bose. It is yet to fully deliver on this commitment. Will NDA-III go the whole length of the way to make archival papers about J&K public remains to be seen.
 
I must also clarify, I hold no brief for any individual. It is important to unearth facts and details from locked-up files and papers to reconstruct a truer picture of what happened in government circles in 1947-48. I hope the RTI Act will prove a useful tool to bring in greater transparency about that sanguinary episode of modern Indian history, if the Government does not volunteer to open up these papers for public scrutiny.  
 
(All facts are in the public domain. Views are personal)
 
Related:

1. Expecting large scale protests, Government asks CRPF to stock up on non-lethal munitions: Kashmir
2. New Report Cites 432 Torture Cases In Kashmir From 1990-2017, 70% Victims Civilians
3. ‘Non-Lethal’ Crowd-Control Methods Have Killed 24, Blinded 139 In Kashmir
4. Pellet guns return to Kashmir, baby girl shot in the eyes
    

The post Nehru contemplated a strike on Pak to save J&K in 1947-48? Modi Govt withholds info: RTI appeared first on SabrangIndia.

Malnutrition levels among children (underweight)
Jammu and Kashmir: 16.6%
Uttar Pradesh: 39.5%
Whole of India: 35.8%

Infant Mortality Levels
Jammu and Kashmir: 32/1000 live births
Uttar Pradesh: 64/1000 live births
Whole of India: 41/1000 live births

Under five mortality rate
Jammu and Kashmir: 38/1000 live births
Uttar Pradesh: 78/1000 live births
Whole of India 50/1000 live births

Current use of family planning methods
Jammu and Kashmir: 57.3%
Uttar Pradesh: 45.5%
Whole of India: 53.5%

 
Teenage pregnancy (15-19 year old mothers)
Jammu and Kashmir: 2.9%
Uttar Pradesh: 3.8%
Whole of India: 7.9%

Mothers who had 4 antenatal care visits
Jammu and Kashmir: 81.4%
Uttar Pradesh: 26.4%
Whole of India: 51.2%

Full Immunization
Jammu and Kashmir: 75.1%
Uttar Pradesh: 51.1%
Whole of India: 62%

Women experienced spousal violence
Jammu and Kashmir: 9.4%
Uttar Pradesh: 36.7%
Whole of India: 31.1%

Spousal violence
Jammu and Kashmir: 14%
Uttar Pradesh: 38%
Whole of India 33%

 
Women (aged 18-29) married by the exact age of 18
Jammu and Kashmir: 9.2%
Uttar Pradesh: 22.5%
Whole of India: 27.9%

 
Men (aged 21-29) married by exact age of 21
Jammu and Kashmir: 9.5%
Uttar Pradesh: 21.9%
Whole of India: 17.4%

The post Who is more ‘developed’: Jammu and Kashmir vis a vis the rest of India, some figures appeared first on SabrangIndia.

Article 370 was brought into the Constitution after the events of 1947, when a more popular section of the Kashmiri leadership, led by Sheikh Mohammad Abdullah, negotiated Kashmir’s unique relationship with the Indian Union. The “special status” granted to the state through Article 370 allows the state to have its own Constitution – that is why elections to its legislative assembly are held once in six years, unlike other states where they are held once in five years.

Wall, bridge or tunnel?

Article 370 debated in Parliament as early as 1963. In the process of convincing the parliament about the technical difficulties involved in abrogating the Article, Nehru set out to dispel the still-prevailing notion that it prevented people from outside the state from buying land in Kashmir.

“That is an old rule coming on, not a new thing, and I think that it is a very good rule which should continue, because Kashmir is such a delectable place that moneyed people will buy up all the land there to the misfortune of the people who live there; that is the real reason and that reason has applied ever since British times and for one hundred years or more,” Nehru said in the Lok Sabha.

On August 15, 1947, when India became independent, J&K was not a part of its territory. It was only by the Instrument of Accession, dated 27.10.47, signed by the Maharaja of J&K that the state acceded to the Dominion of India. By clause 3 the Maharaja accepted that the matters specified in the schedule are the matters with respect to which the dominion legislature may make laws for the state of J & K. The instrument further provided that the terms of instrument shall not be varied by an amendment to the Act or the Indian Independence Act, unless such amendment was accepted by the Maharaja. The instrument also clearly laid down that nothing in the instrument shall be deemed to commit the state in any way to the acceptance of any future Constitution of India. The Instrument of Accession of Jammu and Kashmir may be viewed here.

This instrument accepted only a limited number of matters — Defence, External Affairs, Communications — with respect to which the Indian legislature could make laws for J&K. This special relationship of J&K found its reflection in Article 370 of the Indian Constitution which laid down that notwithstanding anything in the Constitution, the powers of Parliament to make laws for the state shall be limited to those matters in the Union List and the Concurrent List, which, in consultation with the government of the state, are declared by the President to correspond to matters specified in the Instrument of Accession, and such other matters in the said lists with the concurrence of the state the President may by order specify.

Thus by virtue of Article 370 Parliament can legislate for J&K on matters other than those mentioned in the instrument but only after obtaining the concurrence of the state of J&K (emphasis supplied). Thus J&K has special status, unlike the other states in India where Parliament can legislate on its own on subjects mentioned in the Union and concurrent lists. Whatever is critical to note it that today almost all subjects in the Union and Concurrent lists have been extended to J & K completely eroding the substance of the Article.

Legal luminary AG Noorani in his book Article 370: A Constitutional History of Jammu and Kashmir documents how the Article was tampered to the extent that only husk has been left. Noorani’s book mentions the first “unfortunate breach” by N Gopalaswamy Ayyangar on October 16, 1949, in unilaterally altering the draft agreed to with Sheikh Abdullah and Mirza Afzal Beg. If the original agreed-upon draft had been approved, the ouster of Sheikh Abdullah later in 1953 would have been impossible.
 

Myth

It was only at its genesis that Article 370 gave the Union government jurisdiction only over three subjects—defence, foreign policy and communications. Over the decades, this has changed: 94 of the 97 entries in the Union list and 26 of the 47 entries in the concurrent list were extended to J&K. So were 260 of the 395 Articles of the Indian Constitution. Subsequent presidential orders further ‘eroded’ the original substance of the Article. Today, it is a mere husk of the original seed.

It is no doubt true that Article 370(3) provides that the President may by notification declare that this article shall cease to be operative, but the proviso clearly lays down a limitation that the recommendation of the Constituent Assembly of the state shall be necessary before the President issues such a notification. It is not disputed that the Constituent Assembly of J&K has never given any such recommendation. In that view Article 370 cannot be withdrawn by Parliament purporting to exercise the power of amendment given by Article 368. That the power to amend the Constitution is not totally unfettered admits of no disputes vide the famous case of Keshvanand Bharthi, (1973) in which the Supreme Court held that a “Constitution like ours contains certain features which are so essential that they cannot be changed or destroyed”.

There is also nothing very special in laying this limitation in Article 370. Even Article 368 limits the power of Parliament to make any amendment to the Constitution which would result in a change in any of the lists in the Seventh Schedule; such amendment shall also require to be ratified by the legislatures of not less than half of the states.
 

Myth: J & K is the Only State with Special Status

Under our Constitution the Governors are only formal heads of state and have no powers at all in the administration of the state which is vested in the Cabinet. But yet by the Constitution Amendment Act 1956, Article 371 provides for a special responsibility of the Governor for the establishment of separate development boards for Saurashtra and Kutch (in Gujarat) and Vidharba in Maharashtra for an equitable allocation of funds for the development of the area. No objection by the BJP has been raised which curtails the power of Gujarat Chief Minister Modi, while there is not such limitation on the chief ministers in other states!
 

Land Ownership Restricted and Protected in Mizoram

Article 371G, introduced by the 55th Constitution Amendment Act 1986, provides that no Act of Parliament in respect of the ownership and transfer of land shall apply to the state of Mizoram unless the legislative assembly of Mizoram by a resolution so decides. This provision is identical to Article 370 of the Constitution regarding J & K. The BJP was a party to the above amendment. Why do the RSS and why does the BJP apply double standards in the case of the Muslim majority state of J & K? Is it because J & K is the only state that is Muslim minority?

Myth No 1 about Article 370: It prevents Indians from buying land in Kashmir
That prohibition is a holdover from Dogra times. Besides, other states have similar restrictions.

Among the foremost grievances against Article 370 of the Indian Constitution, which grants special autonomous status to Jammu and Kashmir, is the impression that it prevents Indians from buying land in the state. That is not true. While the Article does give the state a “special status”, it says nothing about land. As it turns out, the prohibition against outsiders buying land in Kashmir was introduced by the Dogras who bought the territory from the British in 1846 under the Treaty of Amritsar.
 
Article 370 eroded over time has in fact reduced the Status of J & K as compared to Other States
Jammu and Kashmir has been relegated to a status inferior even to other states.
Examples:

• Parliament had to amend the Constitution four times to extend the President’s Rule imposed in Punjab. In the case of Jammu and Kashmir, the same was accomplished, from 1990 to 1996, by mere executive orders under Article 370. The Article was also freely used not only to amend the Constitution of India but also of the state. On July 23, 1975, an order was made debarring the state legislature from amending the state Constitution on matters in respect of the governor, the election commission and even “the composition” of the Upper House, the Legislative Council.
• On July 30, 1986, the President made an order under Article 370, extending to Kashmir Article 249 of the Constitution in order to empower Parliament to legislate even on a matter in the state list on the strength of a Rajya Sabha resolution. Ironically, concurrence to this was given by the Centre’s own appointee, governor Jagmohan. Former law secretary of J&K, GA Lone described how the “manipulation” was done “in a single day” against his advice and “in the absence of a Council of Ministers”.
• When May 1996 Parliamentary elections in the state — the first since 1989 — were marred by the boycott call by separatists and coercive voting, the central government offered a bait to the lone mainstream party — the National Conference — to participate in the assembly polls. The NC leader Dr Farooq Abdullah, cooling his heels in London, was adamant in seeking Constitutional changes before committing to take the plunge into the electoral process. His hesitation stemmed from the famous “sky is the limit” observation of Prime Minister PV Narasimha Rao from Burkina Faso to underline that any kind of future arrangement for Kashmir could be discussed.

What changed?

A year earlier in 1994, Dr Abdullah was part of a delegation to Geneva to persuade Iran to drop the Organisation of Islamic Countries (OIC) resolution at the UN Commission on Human Rights (UNCHR), later rechristened as Human Rights Council, condemning India for human rights violations in Kashmir. The resolution, with UNCHR approval, was to be referred to the UN Security Council for initiating economic sanctions and other punitive measures against India. (Privately, Dr Abdullah says, he had been offered restoration of Constitutional arrangement that existed prior to 1953. A euphemism for greater autonomy in lieu of saving India from possible disgrace at a time when the country had mortgaged its gold reserves. Dr Abdullah was however, persuaded by Rao’s successor Deve Gowda to participate in the October 1996 assembly elections on the assurance that he was free to pursue legislative process to seek changes in the Constitutional relationship between Srinagar and New Delhi. )
 

State Autonomy and Federalism

Even in the USA such is the width of state autonomy that an advocate getting his law degree from Washington University cannot as a matter of right practice in the state of New York. No one has suggested that this is endangering the unity of the USA.

Recently in the election fever even the Congress seems to have got entrapped when it gave an election promise to separate Ladakh from the territory of J&K and even give it a separate legislative assembly. This is a provocative suggestion, which can only inflame the sentiments of people of J&K against India, apart from the fact that it is not legally possible because the J&K legislature will never give its consent, as provided by Article 370.

It needs to be appreciated that the retention of Article 370 is a matter of self-respect and honour and an assertion of their distinct identity for the people of J&K. Can’t the BJP leaders, even when most of the parties in J&K are desirous of finding a lasting solution, be statesmen enough to give up their opposition to Article 370, which no Kashmiri can possibly agree to abrogate because it is a matter of preserving his special identity?

Faced with this reality, politicians must realise that all talk of abrogation of Article 370 is moonshine and a non-issue. It is also a very sensitive matter touching the credibility of our secular professions and the justifiable fears of the minorities. With all this, when it is also patent that the abrogation of Article 370 is not legally and constitutionally possible, is there any moral, political or logical justification to keep up this empty noise?

In other words, if Article 370 is abrogated, then it will have to be replaced by a similar article. Otherwise, abrogation would require renegotiating the terms of accession, which may open up the issue of accession itself, and would certainly permit the introduction of new terms. Are the people of the state and India willing to reopen the accession issue and terms? Have their representatives considered what could be put in place instead, not to mention, ever discussed it?

Much water has flowed since then. The argument that Article 370 constitutes a psychological barrier between the governing elite in Delhi and the Kashmiri youths is a false one. The real problem lies in Kashmir’s history of rigged elections and foisting unpopular Chief Ministers on the people. Delhi needs to address are these two areas of anxiety and suspicion — and not Article 370.

Most importantly, India, especially New Delhi needs to reach out to the youth of J&K, to persuade them that Article 370 is a ‘psychological barrier’ that must be dismantled to meet their aspirations. That persuasion must be directed to where it matters most: in the Valley. The sentiment there is that the country’s only Muslim-majority state must preserve what remains of its distinctive political and cultural identity and its territorial unity.

There are constitutional hurdles that the new government will also have to cross should it move to abrogate Article 370. A new constituent assembly will have to be formed to recommend the abrogation. (Given the majority of disaffected Kashmiri Muslims such an assembly will have, no such recommendation will be forthcoming.) Only then can the President of India issue a public notification to this effect. Parliament is well within its rights to amend this provision. But what if the Supreme Court rules that the special status accorded to J&K is a basic feature of the Constitution?

Article 370 cannot be abrogated or amended by taking recourse to the amending provisions of the Constitution. For, in relation to Kashmir, Article 368 has a proviso which says that no constitutional amendment “shall have effect in relation to the state of Jammu and Kashmir” unless applied by Order of the President, that requires the concurrence of the state government and ratification by its Constituent Assembly. With the Assembly’s dispersal on November 17, 1956, after adopting the Constitution of Jammu and Kashmir, there is no authority left to recommend its abrogation.

Jitender Singh’s initiative will open a Pandora’s box. It will give a fillip to secessionist forces in the Valley, increase Pakistan-supported terrorist activities and, no less serious, internationalise the Kashmir issue. And this at a time when Pakistan has begun to send signals that it is prepared to move away from its entrenched stand on this intractable problem.

370 Then and Now

• In its pristine form, Article 370 of the Indian Constitution had given J&K the constitutional right to have its own separate Constitution, its own prime minister, its own president and its own national flag. The residuary powers were vested with the state assembly and not the Parliament of India.
• The residents or state subjects of J&K were not citizens of India and the entry of Indian nationals into J&K was restric­ted. The goods from India had to pass through a customs barrier by paying import duties. The people of J&K were not obliged to uphold the integrity and sovereignty of India.
• The Supreme Court’s jurisdiction was restricted only to Article 131 dealing with disputes between the Union and the states. In all other matters, the apex court was given only appellate jurisdiction.
• The J&K government had complete, exclusive control over all the taxes. The I-T department of J&K was free from all central controls. There was no ‘financial integration’ between J&K and India.
• To put it simply, J&K was a sovereign within India having an agreement on three matters—defence, foreign affairs and communication—with the government of India.
• None of this holds true now. Over the years, the privileges have been overridden by various constitutional orders issued by the president of India.
• Article 370 is now just a husk; the seed has been long taken out. Out of the total number of 395 articles of the Indian Constitution, 260 have been applied to the J&K Constitution. The remaining 135 are identical to the Indian Constitution. So there are no real privile­ges or protections. In other words, Article 370, even though it is there, has been made irrelevant. Yet, it is important! Why?
• The answer to this comes from the most unlikely of people, Mr Narendra Modi! As the chief minister of Gujarat, Modi in his Republic day message, wrote, “A country such as ours cannot survive without a vibrant and functional federal structure. Sitting in New Delhi, the Centre may not always be able to do justice to the potential and needs of various states.” Article 370 is exactly about tilting the existing power balance in favour of J&K, which is a state within the Union.
• In an obvious reference to the appointment of the governor and the Lokpal, Modi wrote, “Chief ministers are not consulted on crucial appointments. Rather, app­ointments are being thrust down, violating the spirit of the laws of the land.” Article 370 prevents exactly this from happening in the case of J&K.
• Further, Modi has been lamenting the fact that the “Sarkaria Commission, which called for consultation between the states and the Centre on the concurrent list, hasn’t seen the light of day”. Again, Article 370 makes it obligatory on the Centre to seek concurrence of the state on matters of the concurrent list.
• Modi was also in the forefront in criticising the Centre for not discussing the Communal Violence Bill or the NCTC with the states. The benefit of Article 370 in the case of J&K is that even if the Centre passes these laws, they will require the concurrence of the state legislative assembly to be applicable. So the last word rests with the J&K state!
• For its detractors, Article 370 is a hindrance to beneficial legislations like the Right to Education, which are not automatically applicable to J&K. This is a fallacious argument; all these can be easily extended as other laws have been over time.
• Unlike Article 371, sub-clause (a to g), which gives Northeastern states constitutio­nal protection on the ownership of land, Art­icle 370 doesn’t do that for J&K. The restriction on ‘outsiders’ buying and selling land in J&K is because of a state law promulgated in 1929 by the Dogra maharaja of the state.
• To put it on its head, the emaciated Article 370 may well provide PM Modi with the framework for a new federal structure that he had been advocating as Gujarat CM.
• For what was a “sovereign within a nation” has been over the years, wittingly or unwittingly, converted into a model for a country aspiring to have genuine cooperative federalism. As such, far from abrogation, it may serve as the basis of a model for other states.
• The benefit of Article 370 has been to make J&K a politically empowered state, an inclusive economy, an identity- conscious society. The single biggest benefit of Article 370 to the people of J&K is the radical restructuring of agrarian relations. It is not well recognised that the land reforms carried out in J&K have been possible only because of Article 370.
• As such, the current controversy on Article 370 is completely mindless; it’s only giving a lifeline to the otherwise thoroughly corrupt and compromised National Conference which got drubbed in the recent parliamentary polls. There is no need to abrogate as there is nothing left to abrogate!
• To borrow a medical analogy, Article 370 is to India what the appendix is to the human body. As long as it’s left alone, one can live with it forever. The moment it gets inflated or infected, it needs surgical attention! Or it will burst, end­anger life. Better to leave it alone, especially as it isn’t infected.

Footnote:

The acrimonious relations between Srinagar and New Delhi — going beyond this controversial Article — are historically beset with broken promises and lack of trust, which often manifest in violent outbursts. The Article 370 was negotiated as a temporary provision because until the 1960s, the Government of India’s stated policy was to conduct a plebiscite to determine the future of Jammu and Kashmir. Accordingly, a Government of India sponsored White Paper on Jammu and Kashmir in 1948, authored by Sardar Vallabhbhai Patel, recorded: “In accepting the accession, the Government of India made it clear that they would regard it as purely provisional until such time as the will of the people of the State could be ascertained.” The Constituent Assembly debates show both Patel and Syama Prasad Mookerjee had fully approved Article 370, which accords special status to Jammu and Kashmir.

Jammu and Kashmir is the only state in the Union of India, which negotiated the terms of its membership with the Union. The ruler of Jammu and Kashmir had acceded to India by an Instrument of Accession on October 26, 1947, in respect of only three subjects — defence, foreign affairs and communications. A schedule listed precisely 16 topics under these heads plus four others (elections to Union legislature and the like). Clause 5 said that the Instrument could not be altered without the state’s consent. Therefore, Article 370 was a solemn compact — with neither side mandated to amend or abrogate it unilaterally — except in accordance with the terms of that provision. While all the provisions of Indian Constitution were debated in the Constituent Assembly after deliberations in its Drafting Committee, Article 370 was discussed for five months by Nehru and his colleagues including Sheikh Abdullah, then Prime Minister of J&K.
 

References:

1. (By Justice Rajindar Sachar, 20 May, 2014, http://www.countercurrents.org/sachar200514.htm) Justice Rajindar Sacharis a former Chief Justice of the Delhi High Court. He was a member of United Nations Sub-Commission on the Promotion and Protection of Human Rights. He chaired the Sachar Committee, constituted by the Government of India, which submitted a much debated report on the social, economic and educational status of Muslims in India
2. http://scroll.in/article/665862, Parvaiz Bukhari ,Myth No 1 about Article 370: It prevents Indians from buying land in Kashmir
3. http://epaper.dnaindia.com/story.aspx?id=65225&boxid=19585&ed_date=2014-06-02&ed_code=820009&ed_page=8, 02JUN2014, Iftikhar Gilani ,History of broken promises
4. http://www.outlookindia.com/article/Open-The-Pandoras-Box-At-Your-Own-Peril/290898

Dileep Padgaonkar, Open The Pandora’s Box At Your Own Peril, OUTLOOK
http://www.outlookindia.com/article/The-Appendix-370/290902, Haseeb A. Drabu, Article 370 is just an emaciated husk now, best left well alone, Drabu an economist and ex-chairman, J&K Bank
 

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Image Courtesy: AFP

The Centre has now even suspended internet connections in the Valley and also put senior opposition leaders under house arrest. Late on Sunday night, the Indian Express reported that senior leaders and former chief ministers Omar Abdullah and Mehbooba Mufti were placed under house arrest as was Yusuf Tarigami, lone MLA of the CPI-M from Kulgam. Across the board, the moves by the Centre have been seriously questioned for the autocratic ones they are.

The Cabinet of Ministers of the government of India is scheduled to meet this morning and address the country at 11 a.m. The greatest concern has been speculation over the Modi government using backdoor methods to abbrogate Articles 370 and 35A of the Constitution. These foundational structures in law are key to maintaining the delicate balance between the Valley and Delhi. Speculation over modifications of Article 35A, which confers special rights to the permanent residents of Jammu and Kashmir have been rife over the week end.

The options include creating categories of land and allowing outsiders to purchase land in certain cases, and placing restrictions on the quantum of land based on the usage. To curtail misuse, they said, Article 35A can borrow from land laws in hilly states such as Himachal Pradesh and Uttarakhand.

The secretive, and many would say undemocratic moves of the Central government have drawn sharp criticisms. They have also led to heightened sense of panic and rumour mongering in the Valley. Demanding that the Parliament which is in session be taken into confidence, the CPI-M has issued this notice through three of its MPs, KK Rajesh, Elamaram Kareem and K Somaprasad.

The notice issued by the CPI-M in the Rajya Sabha may be read here:

 
 Meanwhile a late night message by human rights defender, Khurram Pervez of the Association of Disappeared Persons (APDP) says it all:

” Last few days have been chaotic in Kashmir. No major violence but a lot of deliberate rumours by government. Additional armed forces (atleast 35000 in addition to 650,000 armed forces and police personnel) have been brought to Kashmir.

“Finally what appears is that there will be curfew imposed by midnight today. Internet will be completely shut, perhaps phones too. All this is being done, for government of India to abrogate article 35A, which will technically mean Indians can purchase property in Kashmir and become citizens of Kashmir.

“The Indian government thinks demographic changes will solve the conflict in Kashmir. This change apparently will be brought through Parliament but on ground in Kashmir only through gun point. They have silenced all political groups, gagged media and scared civil society. The government is well prepared to deal with protest and forces have been ordered to not negotiate with the protesters – just shoot.

“It is clear that there will be violence, but I hope and pray people remain peaceful and that we in Kashmir do not loose anything more than these constitutional guarantees.  The largest democracy is able to do all this because of the international silence.  Sending this message to all of you before the internet and phone is shutdown.”

Most astonishing of all the moves by the Centre was the abrupt cancellation of the Amarnath Yatra, citing a terrorist threat emanating from Pakistan, and the swift evacuation of tourists and pilgrims from the Valley. Shockingly, the order asking Amarnath yatris them to leave (without reasons being given) did not address the apprehensions of the people of Kashmir, thus conveying the crude and brute message that the government was not concerned about them, even as they rushed to petrol pumps and ATMs to stock up.

These latest secretive actions of the Modi government are even more stark given that, only weeks earlier, officials had been eager to project the situation in the Valley and at the LoC as much improved, with cross-border infiltration having come down drastically.

Last June, the Centre had similarly simply toppled the elected government by withdrawing support from the coalition and imposed President’s Rule in the state. Its over a year and elections have not been held. At the time, speaking to Sabrangindia, Tarigami of the CPi-M had been scathing:

Excerpts from the Video Interview (June 2018)

• With the Amarath Yatra set to begin on June 28, we had expected (wrongly) that the BJP would wait at least two three months before taking this step, in the larger interests of the people of the state, the yatris.  We expected this out of respect for the Yatris. But they are concerned only about narrow political consdirations
• It is the tradition of the Kashmiris to lend a hand and support to the Yatris and we are sure this will continue but the overall atmosphere of tension and fear cannot help
• The decision to end the alliance is meant to help their campaign for the 2019 elections since the state government has no favourable record to show
• Jammu and Kashmir is headed for troubled times. This government, with separate agendas of the two alliance partners before the elections came together in such an opportunistic way after the election results and has a poor performance.
• Kashmir is bleeding, on fire, needs now more than ever the understanding, love and affection of the people of India

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Image: AFP / Tauseef Mustafa

Kashmiris feel that they are being manipulated, their anger and annoyance used by tyrant(s) and channelized in the wrong direction. For the past many years, they have suffered all sorts of abuses.“How long will we remain scared and quiet?” they ask. “Fear, the fear of survival,has vanished from our souls now”. The army,which should make them feel safer, makes them more terrified than ever. They feel they can be picked up any day and be tormented, even tortured. A local, pointing towards a base camp at 14000 feet in Gulmarg, said “yahan rehte hain hindustan ke buzdil”. At that height in Gulmarg,when we were surrounded by soldiers, a group of Kashmiri boys sitting there started shouting “Chowkidar Chor hai”, so loud thatthey could be heard. It was a deliberate attempt to irritate the jawans standing nearby.

School going girls, wearing white headscarves, with their rosy cheeks, walk hand in hand, in large groups, depicting their fear and that of their parents. They do not, ever, walk alone. They are growing up in an environment which is brutalised and militarised. Wherever they turn, wherever their gaze falls, they can spotthe military or the militants. They sleep with the sound of gunshots and military tanks. They see, every day, their parents and family members in acute distress. The government doesnot help them, they think the military is against them, they are in agony, they do not know who to go to for help any more. They don’t believe that they are Indians. They identify themselves as Kashmiris, as Muslims.When Muslims visit Kashmir, they get an insight that not many people can gather. The Kahmiris think that we are part of this God-forsaken tribe.

A boy, aged roughly around 20, doing his graduation in the Humanities, “Arts” as he says, works as a guide and takes travellers up through the mountains, on horses. When he got to know we are Muslims, he asked my brother his name. Onbeing told that his name is Musa, he broke into a huge smile and said he would feel lucky if his name were Musa. On being asked why, he simply answered,“Do you know Zakir Musa?” I nodded in complete shock and uneasiness. Being told by a stranger that he admires a terrorist leader is terrifying, but this isa way for them to projecttheir anger about being manipulated – to side with the wrong and believe that their religion teaches hatred.

Throughout the journey up that mountain, the boy kept calling my brother’s name. It felt more like he was chanting his name; his obsession, his state of mind was reflected by his act. Yet another guide told us that during festivals, they chant Zakir Musa’s name before they start the festivities. At a point during our trip, my brother’s name became the most admired feature among locals.

In the 21^st century, it is easier to manipulate people, to direct them to the wrong track by using technology. One local taxi driver that we came across was listening to some old recording of a maulana. The words that came out of the maulana’s mouth were terrifying as well as infuriating. He was using religion in its wrong sense, to implant wrong ideas in the minds of his audience. On that tape, he talked about how Islam tells people that revenge is the most important thing, that if someone slaps you, give them four slaps in return, that Mahatma Gandhi, the father of the nation, was a man with wrong teachings. This tape was filled with hatred, prejudice, racism and discrimination in order to instigate the locals and to make them feel that it was okay to hurt people, to disrupt peace. This is the way militants are created, are brain washed into believing in wrong ideas.

The last five years have been the most crucial for the people, as mentioned by a local. According to him, hell has broken loose since the 2014 floods. This period, which used be the tourist season, has the least number of tourists in the last five years. The number of military personnel has increased, their presence at public places has gone up, there is a jawan at every 200 m, most forts have military base camps. It is a psychological issue for the soldiers, as well. They don’t know how to differentiate between the locals and the militants. .

During the 2014 floods, a number of Kashmiris lost everything, their homes and businesses were destroyed and they lost all their money. We were told that not much help reached them.Those having insurance were not been given any help.A number of surveys were done, reports made, officials came and went but at the end, they flood victims were left empty handed.

After the disturbing Pulwama attack, the flow of tourists has slowed down to a trickle. Tourists are scared to visit the place, they are scared something might happen to them. Since Kashmir is largely dependent on tourism, it is at a great loss.

People around the world visit Switzerland, Venice etc. in large numbers. I understand that Kashmir is much more beautiful,culturally much richer than any place. It could have been one of the most desirable tourist destinations but the government’s negligence and lack of ground work has destroyed it. E.g. The roads are not maintained properly which, as a tourist destination, can have a major negative impact.Historic places, such as the Vishnu temples, are not taken care of. They were made centuries ago and, due to the rains, their carvings are getting eroded with every passing year.Not much will be left for the generations to come.

There can be large industries established for forestry, horticulture etc. There are thousands of maple trees in Kashmir, a significant part of Kashmir’s beauty with their leaves changing colour during different seasons. However, there is maple syrup industry there. Maple syrup sold in India is imported from Canada and Australia. Kashmir is the gold mine of natural resources. With proper planning and care, today Kashmir could have been one of the richest states in India.

However, the silver lining in the dark cloud surrounding Kashmir is that the Kashmiri people stand together for each other.They help each other in their hour of need and their brotherhood is admirable. We were at the famous Lal chowk at Srinagar when we narrowly missed having a major accident with a car which came in front of us suddenly at high speed. Being a girl who grew up in Mumbai, I thought that some fight for sure happen between the two drivers, but to my surprise they laughed it off with one suggesting to the other that he should feed the poor since a major disaster was averted. They are there for each other at all times, they stand tall. This is the true spirit of Kashmiriyat, which has survived these dark times too.
 
 

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Before we seek to question the constitutional validity of Article 35A or Article 370, it is important to consolidate the political and legal realities concerning Jammu and Kashmir vis-à-vis the Union of India.

India is a federal state and the basis of a federal state is, recognition of socio-political problems of a particular region. Granville Austin also agrees with the view that India has created a new kind of federation to meet its peculiar needs. Deviating from the traditional concept of federalism wherein states come together to from one entity, India divided itself into states or gave power to already existing states and thus creating two levels of Government within India, wherein the Constitution elucidates on the extent of powers.  

This was unlike the United States of America where the states came together through the Articles of Confederation. Prof. Bombwal in Foundations of Federalism points out that the scepticism concerning the federal character of India comes from an unduly textbook approach to federalism. It can also be said that for a nation like India a unitary system of government is not suitable, and federalism is the only method of reconciling unity and diversity.

The position of Jammu and Kashmir has to be looked into keeping this background in mind. It is not to be understood as an aberration to the Indian federal setup, rather a recognition of the circumstances surrounding the accession to India. It may not be wrong to state that the relationship between Jammu and Kashmir and the Union of India, is an integral part of the federal edifice, particularly when the Constituent Assembly of the State no longer exists.  This relationship need not necessarily be the similar to the relationship that the union shares with other states. Article 370 and Article 35A are reflective of the recognition of this ‘distinct’ and not ‘special’ relationship that the State of Jammu and Kashmir shares with the Union of India.

Therefore neither of the two articles may be considered to be ‘constitutionally vulnerable’, particularly when the Supreme Court has upheld the powers of the President to apply the provisions of the Constitution to that State subject to such exceptions and modifications as the President may by order specify, exercising its powers under Article 370 of the Constitution of India.

Author is pursuing Masters from TISS, Mumbai
 

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Honourable Home Minister,

I am taking the liberty of sending you an open letter on the situation in Jammu and Kashmir written by a group pf academics, retired civil servants and analysts. The letter is attached, but I have also put the full text below.

We would be grateful if you could spare a moment to read our letter and if possible, respond to it.

Yours truly,

Radha Kumar
former member of the Group of Interlocutors for Jammu and Kashmir

———-

To:     Shri Rajnath Singh
        Honourable Home Minister of India

Dear Home Minister,

We, a group of former government servants, academics, analysts and civil society, many of whom have been associated with Jammu and Kashmir in our individual or official capacities, write to express our deep distress at the continuing and indeed intensifying alienation of Kashmiris from the rest of India. The decision to close the highway to civilian traffic twice a week, and to let it be used only by the forces until the election is concluded, undercuts our democratic credentials and attracts the charge of military rule. It is, moreover, only the most recent of a series of actions that add to disaffection in the valley. Others include banning the JKLF and the Jamaat e Islami, imprisoning their leaders as well as those of the Hurriyat, and denying security to members of political parties.

In these conditions, what kind of a turnout can we expect in the valley? Taken together, the policy of President’s rule, counter-insurgency, crackdowns and arrests, combined with threats to rollback Articles 370 and 35A and alterations to the administrative structure of the state, provide formidable disincentives to vote.

Yet the people of Jammu and Kashmir desperately need to vote – and vote convincingly – for the valley to emerge from its current state of confrontation and siege. Kashmir needs a government that can hold out hope instead of hatred, one that will work to re-establish peace on the ground. These steps will only be taken by an elected government, as the harsh measures that have been taken under President’s rule indicate.

Even at this late stage, your Ministry can minimize the disincentives for Kashmiris to vote. The first step would be to rescind orders for closure of the highway, followed by release of those arrested (unless there is substantive evidence of their being involved in recent terrorist attacks such as on the CRPF at Pulwama), restoration of security to political leaders and return to a policy of defense against attack rather than preemptive action. If your government could initiate a Ramzan ceasefire, then why not one for elections?

It took fifteen years of hard work for Jammu and Kashmir to emerge from the dark days of the 1990s. As the sharp fall in violence between 2005-2012 showed, the most hopeful period for Jammu and Kashmir was when there was a peace process in the state, starting in 2000. Though terrorists made strenuous efforts to disrupt it with high profile attacks, including on Hurriyat members, to which the Vajpayee and Singh administrations responded both militarily and diplomatically,
neither allowed terrorists to bring the peace process to a grinding halt.

In the past four years, most of the hard work of the previous fifteen years has been undone, for reasons that remain unknown because no reasoned explanation has been offered. These elections offer an opportunity to craft a more  conciliatory policy towards the people of the state, including dissidents who have engaged in peace initiatives, such as the Hurriyat M, who have once again held out an offer of talks.

Judging by its election manifesto, the BJP is opposed to conciliation in Jammu and Kashmir. Nevertheless, whether your party wishes to avail of this opportunity or not, surely you would recognize that governance is larger than party interest and a change of course is required, lest the situation in the state worsens to a point of no return. We urge you, even at this late stage, to take the steps mentioned above. Jammu and Kashmir will only then be able to have a free and fair election.

Signed:
1.      Salahuddin Ahmed, former Chief Secretary of Rajasthan
2.      Madhu Bhandari, former Ambassador of India to Belarus, Lithuania and Portugal
3.      Sundar Burra, former Secretary to the Government of Maharashtra
4.      Nitin Desai, former Secretary & CEA Ministry of Finance
5.      MG Devasahayam, IAS (retd)
6.      Gourisankar Ghosh, former Executive Director, UN WSSCC, Geneva
7.      Meena Gupta, former Secretary, Ministry of Environment and Forests
8.      Sajjad Hassan, former Secretary to the Government of Manipur
9.      Happymon Jacob, Professor of International Relations, Jawaharlal Nehru University
10.     Prem Shankar Jha, author and columnist
11.     Kapil Kak, former Air Vice-Marshal of India
12.     Radha Kumar, former member, GOI’s Group of Interlocutors for Jammu and Kashmir
13.     Satish Kumar, former Professor of Diplomacy, Jawaharlal Nehru University
14.     Sudhir Kumar, former member, Central Administrative Tribunal
15.     Seema Mustafa, Centre for Policy Analysis
16.     Nagalsamy, former Principal Accountant General, Tamil Nadu & Kerala
17.     Amitabh Pande, former Secretary to the Government of India
18.     Gopal Pillai, former Home Secretary of India
19.     Badri Raina, author and columnist
20.     Anand Sahay, columnist and commentator
21.     Deepak Sanan, IAS (retd)
22.     Karan Sawnhy, International Centre for Peace Initiatives
23.     Aftab Seth, former Ambassador of India to Japan
24.     Hindal Tyabji, former Chief Secretary of Jammu and Kashmir
25.     Ravi Vira, former Deputy Governor of the Reserve Bank of India
26.     Shiv Vishwanathan, Professor of Social Sciences, OP Jindal University

April 8, 2019

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Srinagar:- On December 8, 1989, Rubaiya Sayeed, the 23-year-old daughter of the then Union Home Minister Mufti Sayeed Mufti

Mohammad Sayeed was kidnapped in Srinagar by the members of Jammu and Kashmir Liberation Front (JKLF), a separatist group based in Kashmir. In lieu of her release, the kidnappers demanded the release of five militants— Sheikh Abdul Hameed, Sher Khan, a Pakistani militant; Noor Muhammad Kalwal; Muhammed Altaf Bhat; and Javeed Ahmed Zargar. The Government-led Prime Minister V. P. Singh met the demand and she was released on December 13.
 

The Central Bureau of Investigation (CBI) blamed JKLF leaders— Mohammad Yaseen Malik, Manzoor Ahmed Sofi, Javed Ahmed Mir and Showkat Ahmed Bakshi, Javed Ahmed Zargar and Ali Muhammad Mir for kidnapping and conspiracy.

After the abduction, a case was filed in Police station Sadar in Srinagar City. The FIR No.339 was registered on 8 December 1989 under Sections 364, 368 RPC, Section 3(1) TADA Act and 25 Indian Arms Act, against unknown persons.

Almost after three decades, the case against Yasin Malik, the main accused and others, was shifted to Jammu for proceedings on CBI’s plea.
According to official sources, this was done for the ‘speedy trial’ of the case while people here see it as part of the tough approach towards Kashmir’s separatists by New Delhi.

Reports said the Union Home Minister was “shocked” to know the status of 1989 Rubaiya Sayeed kidnapping case and he expressed “displeasure” over the “slow pace of trial.”

In 2009, the High court stayed the trial against Mohammad Yasin Malik and others in the case before a Tada court in Jammu.

On March 13, the petitions filed by CBI in High Court, seeking vacation of the stay on trial and shifting the proceedings to Jammu in the kidnapping and killing of five Air Force officials cases from Srinagar to Jammu decided to be heard in the Jammu wing of the court as per the high court rules and circular issued by it in this regard.

The CBI counsel Tahir Majid Shamsi had filed a transfer appeal before the Srinagar wing of J&K High Court contending that the main accused, Yasin Malik, is an influential person in the state which is likely going to influence the proceedings of the matter.

“The writ petitions cannot be taken up for consideration at Srinagar Wing and have to be sent to the Jammu Wing for hearing and decision in accordance with Circular 6 dated 18.12.2010 and Guideline 94 dated 7th December 2018,” a bench of Chief Justice Gita Mittal said. On Monday, the HC reserved the orders after a plea.

“All other steps including hearing, consideration and decision have to be by the Wing to which it relates. The petitioners have accepted this when applications seeking permission to file the writ petitions relating to the Jammu Wing at the Srinagar Wing was sought,” the court said.
The writ petitions, the court reiterated, can be heard and decided only by the Wing to which the matters relate i.e., the Jammu Wing, the court said.

A brief background of the two cases
According to the CBI, Rubiya Syed was kidnapped while she was going in a Tata Mini Bus from Lal Ded Hospital her to her house at Nowgam in outskirts of Srinagar. She was taken to some unknown place by the militants travelling in the same minibus and they threatened to kill her in case their demands were not met and “created terror amongst all the passengers by showing gun and pistols to them”.

After completion of the investigation in the case, the charge sheet was filed by the CBI on 18.09.1990 under Section 364, 368, 109 and 34 RPC, Section 3(1) TADA and Section 27 of Arms Act, before the court of 3rd Additional Sessions Judge Jammu— the designated court under the TADA Act.

During the pendency of trial in this case, on 25th October 2010, an application was filed by the accused persons seeking transfer of the case to the designated TADA court at Srinagar. The CBI filed objections and opposed the application.
 

The case was registered by the CBI and on completion of the investigation, a charge sheet was filed on 31st August 1990 under Section 302 RPC of RPC, Section 3 and 4 of TADA Act and Section 27 of the Arms Act against Muhammad Yaseen Malik and five others, before the designated TADA Court at Jammu.

Both the cases were transferred to Srinagar from Jammu and in April 2009, Srinagar wing of the J&K High Court stayed Yasin Malik’s trial in a designated TADA court in Jammu. Now both the cases have been transferred back to Jammu for further proceedings.

Political experts in Kashmir believe that the opening of the 29-years-old case is just “propaganda” by the Modi-led government to win the upcoming elections. They believe shifting of nearly 3 decades old case to Jammu as Modi’s “Muscular Policy’ towards Kashmir.

“It is the changing approach of current the government in the centre and shifting of Yasin Malik’s case to Jammu that too after decades is the part of the same approach and I think this will continue till the elections are not over,” said Professor Noor Ahmad Baba, a Political expert in Kashmir.

Baba said the failure to address the Kashmir conflict meant the government is using the old cases for its benefits. “If the BJP continues to remain in power, it will continue with the muscular policy towards the Kashmir and it will not be good for the future.”

A staunch supporter of JKLF, who wished not to be named due to security reasons, said Kashmiris have been always used by the Indian politicians for the political benefits.

“Tell me why a 30-year-old case was reopened? If Yasin Malik was involved in the kidnapping why didn’t they punish him in 30 years,” he questioned.

Talking to this reporter, Javeed Ahmed Mir, one of the accused allegedly involved in the kidnapping cases, said the JKLF announced a unilateral ceasefire in 1995 after the assurance of an American diplomat, Robin Raphel, who assured them that the GoI will support peace initiatives if JKLF leaves the path of violence.

As a result, Mir said, they left gun culture and choose the non-violent means to demand their rights but the BJP government led by Narendra Modi is pushing them to choose the gun again.

“We don’t know why we are being targeted in the decades-old case. If we are demanding our right through peaceful means, then why are our leaders being detained without any charges?” asked Meer.

The raids on separatists leaders seem to have had no impact, especially on JKLF. Their office at Masuima locality in Srinagar was filled with a dozen of activist discussing the Kashmir situation.

“We have hundreds of cases going on in different courts. Over 100 of our workers are behind bars. I am telling you nothing is going to happen to Yasin Malik,” said one of the activists, wishing anonymity.

“Modi wants to show his presence and his psychological warfare to the people of Kashmir, nothing else,” he says.

Courtesy: Two Circle

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Zeenat-ul-Islam, according to the local police, was a top militant commander in the Kashmir Valley. He was known for being a cordon breaker and an IED (Improvised explosive device) expert. He was killed along with an aide in an encounter with security forces in Jammu and Kashmir’s restive Kulgam district on January 12. No wonder, the security forces termed the encounter of Zeenat as “a big blow to militancy” in the Kashmir Valley.

Banners praising local militants including Zeenat-ul-Islam, raised by the locals ( Photo: Auqib Javeed/ TwoCircles.net)

The family of Zeenat says their son joined militant ranks for the first time nearly 13 years ago and in 2008, he was arrested for the first time in Sopore under the dreaded Public Safety Act. Over the next four years, he spent his time in jail before finally being acquitted, first by the Shopian Court and later the High Court of Jammu and Kashmir.  In a conversation with TwoCircles.net, Shaftaq Hussain, his lawyer in the Srinagar High Court, said, “The police couldn’t prove that he was a militant and he was acquitted first by the Shopian court. The state then challenged the verdict in the honourable High Court and I represented Zeenat during that time. The HC couldn’t find any strong evidence against him and hence, he was released in 2012.”

After his release, Zeenat started living a normal life and helped his father in the fruit business. During this period, Zeenat also got married and was blessed with a child.

House of Zeenat-ul-Islam at Sugan Zanipura area of south Kashmir’s Shopian district. ( Photo: Auqib Javeed/ TwoCircles.net)

“Everything was fine for sometime after his release from jail in 2012,” says Ghulam Hassan Shah, father of Zeenat-ul-Islam at their residence in Sugan Zanipura village of south Kashmir’s Shopian district.

“There came a moment when I thought it is time to get Zeenat married and with God’s grace he tied the knot with a local girl, but our happiness was short-lived as security forces started summoning my son again to their camps,” says Ghulam Hassan Shah.

“He was mentally tortured to such an extent that he thought that it’s better to be a militant then live a normal life. Not only Zeenat, his friends too were harassed,” says Shah.

Broken windows of Zeenat-ul-Islam’s house (Photo: Auqib Javeed/ TwoCircles.net)

Explaining further, Shah says that soon after he was released, security forces would often make Zeenat spend four to five days a week at various camps for questioning, which ultimately lead him to join the militancy again. Shah says the day his son got engaged, he was arrested and kept in a local police station.

“I begged the police officer to leave him at least for this day as he was going to be engaged but our pleas fell on deaf ears. The police official, in turn, said he would allow him to get married only if Zeenat along with me will work for police as informers,” he adds.

Despite these issues, it seemed like Zeenat was ready to move on and in 2014, he got married to Aaliya. But five months after his daughter came to this world, he again left the home and joined the militancy. This time, he did not return. Aaliya says she knew her husband was a militant and released from jail a few years ago. “But it was God’s will and we got married” she adds.

Keeping in view that many militants were released in the area and are living a normal life with their families, Aaliya thought the same.

“I thought he had left militancy so I wouldn’t have any issues in spending the rest of my life with him. But I never had any inkling that he would leave us again,” she says.

“I was at my father’s home at Turkawangam, a village in Shopian with my five-month-old daughter when Zeenat left,” she adds.

While Aaliya will never get to ask her husband directly about why he took the step, she believes she understands the causes. “My husband used to spend most of the days in Army camps. The Army would also call him to their camps during the special occasions like 26 January or 15 August or when any VIP would have to visit to Kashmir.”

Aaliya believes that her husband wouldn’t have left her and their daughter if security forces had let him live a normal life.

“I remember once, a top police official told him on the phone that I will ensure that you will be behind bars for life. I think he chose militancy because he believed it was better for him to die with dignity.”

She says after joining the militancy, she never told her husband to come back. “I knew what he was going through his normal life. And for me and my daughter Allah is there for us,” she adds.

Local security officers believe that the harassment angle to be both a lie and a cover up for Zeenat’s real intentions.

“I can say it was the lust for power which led him to join the militancy back. He wanted to live a king’s life and that was not possible in his regular, normal life. So he joined the militancy again,” says a top police official from Shopian district, wishing to remain anonymous.

Father of Zeenat-ul-Islam addressing mourners at his home (Photo: Auqib Javeed/ TwoCircles.net)

The official added that Zeenat left the Hizbul Mujahideen (HM), a militant outfit which believes in merging Kashmir with Pakistan and joined the Al-Badar, another militant group, “because he wasn’t a Pakistani boy and refused to follow the commands of Pakistan.”

The official refused allegations of harassment. “When you have been a militant, the police will, of course, keep an eye on you. We only summon some ex-militants on special days….that reason alone cannot force someone to join militancy again.” The official pointed to the fact that over 1,500 militants had been released in Shopian district. “How come only Zeenat became a militant again if the harassment stories are true?” asked the official.

Courtesy: Two Cirles
 

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India tried to harvest a huge crop in Kashmir after Shah Faesal’s appointment was seen as a positive change through the Indian spectrum. On daily basis it was being said that Kashmir has a potential to produce men like Shah and by positive media hype Mr. Faesal became a household name in Kashmir. He headed some vital departments in Kashmir province including education and hydro power but being a topper in IAS was his achievement and a contrivance for India to highlight his character.

On various points he was made a scapegoat by the politicians of PDP-BJP coalition govt. where he openly exemplified his resistance or opposition. Despite the all odds he as an administrator was always acclaimed by the common masses of Kashmir where politicians merely invite a praise and trust. After some years of service he left Kashmir and joined a reputed university in USA (Harvard) for further studies.

Back home in Kashmir the situation was worsening day by day and innocent killings at the hands of uniformed men were a routine. Shah Faesal, recently wrote on a wall of a famous social media platform that Harvard changed his mind set vis-a-vis Kashmir issue. But it is not only Harvard university which helped Mr Faesal to understand the Kashmir issue, last year he took to social media where he openly called India a “Rapistan”, (Patriarchy + Population+ Illitracy + Alcohal = Rapistan) after reacting to a news item, “Porn addict rapes 46 year old mom in Gujrat. On this juncture he was issued a show cause notice by his bosses in the New Delhi. Then again he went a step forward on the controvercy of repealing the Article 35A of the Indian constitution; he threatened Indian state with his harsh words that repealing article 35A of the constitution would end Jammu and Kashmir’s relationship with rest of the country. He compared this very article with a marriage deed (nikahnama). Even he dared India that if this article gets repealed then the relationship is over and there will remain nothing to be discussed further, despite having a special regard with the integrity and sovereignty of Indian state Shah Faesal suggested Indian politicians that the JK’s special status must not be touched at all because it keeps no threat to the integrity and sovereignty of India. In 2017 the mob lynching episodes in India, where Hindu fanatics attacked Muslims to death could not silence Mr. Faesal, he very often criticized the Indian govt’s approach towards these incidents and beyond any doubt these intolerable happenings also changed the mindset of Mr. Topper regarding the Indian politics. On such basis he was even called as an anti national person but being a govt. servant he was made silent on regular basis.

It is a fact that time decides everything and it has its own course, a couple of years ago Mr. Faesal argued with open heart that Kashmiris have no choice but to go back to the drawing board and see what went wrong and at the same time advocated Indian supremacy. He even advised fellow Kashmiris not to hope against the might of the state. It is the nature of Kashmir conflict which has a potential of changing the mindset of people. Shah Faesal advocated India and tried to refurbish the decaying bridge between India and Kashmir by suggesting separatist camp to windup their business of false hope and macabre heroism and to find a dignified exit. Mr. Faesal is an intellectual and has a hold on conflict studies across the world, he must be well aware of the fact that conflicts involve the parties easily but not let them go with alleviation and betterment.

After witnessing a continuum of innocent killings Shah Faesal recently got a dignified exit from the post of India’s highest civil administrative service. He is now free to live his life with the highest percentage of dissent. Now he is not an advocate of any integration theory because all such theories have fallen apart. What he was earlier is not now; now India and Kashmir both have new images in his mind. Now saffronization, intolerance and rising hatred in India has planted new seeds in his character, he is now totally intolerable to the unabated killings in Kashmir   at the hands of Indian forces. Conscience needs simply a drop of nectar to wake up and any time one can comprehend the whole scenario around him. Leaving an affluent and esteemed service is not a good job because it is a position which allows you to deliver the goodness to the needy masses but witnessing bloodshed with mum is simply the nature of callousness.

What if Mr. Shah Faesal joins the pro India politics at this juncture? It is a fact that people who remain in power in Kashmir doesn’t lead the aspirations of the people and who lead the aspirations are always out of power that too languishing in torture centers or jails. We have seen that after a good turnout in polls, India highlights that for its benefits   and make that equivalent to the UN resolutions. People here vote and elect the local governments for their basic necessities (Road, Water and Electricity) as even claimed by the major political figures of the state. Question is, if little developments happening here can be done by the bureaucracy working under the governor installed by the center then what is the fun of having a local elected government. Prior to the polling we have witnessed a trend that politicians are selling the dreams of high value but once acquiring the power continues the detested legacy of betrayal. First the local politicians of Kashmir distance themselves from the Kashmir issue and seek pro people dimensions because they know advocating India directly during polls will hamper their victory. But after managing victory their tone of deliverance changes at once and they start following the directions of New Delhi whole heartedly. This goes in reverse as the peoples will gets a massive set back by their betrayal. Very recently when Mustafa Kamal of National Conference was lecturing against the New Delhion TV shows his brother Dr. Farooq advised him to keep mum because bosses in Delhi weren’t happy with his anti India approach and they will create hindrances in his win from Pattan assembly segment. What does this signify? Can’t any one from pro-India political camp speak like that? Mehbooba also during her initial political carrier high jacked the peoples will and time proved her nature recently when she tied the knot with saffron brigade. Now International affairs have shown us that day to day governance shall not hostage the aspirations of common masses and it also revealed the facts that under heavy militarization no democracy can sprout because occupation by force will not allow you to show your dissent at any case. Militarization calibrates a pre defined boundaries for you and you have to be bound by the set norms if you try to hop up then your wings are not your own.

Ishaq Begh is a Kashmir based political analyst Email: ishaqbeghkullar@gmail.com

Courtesy: https://countercurrents.org/
 

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