Thursday, September 21, 2017
 
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Threats, street violence won’t save Article 35A

By K B Jandial



Apex Court’s decision to hear after Diwali four clubbed petitions challenging Article 35A and Section 6 of J&K Constitution relating to special rights to Permanent Residents to the exclusion other Indians, couldn’t have come on better day for Mehbooba Govt. It has largely put down the flayed political tempers in Kashmir as is evident from suspension of announced separatists’ protest calendar.



Seriousness of the issue for Kashmir separatists can be seen from their joint statement issued to announce protest calendar coinciding with earlier dates of SC hearing. SAS Geelani, Mirwaiz Umar and Yasin Malik described the fight for Article 35A as a “matter of life and death” and threatened to “will spill our blood to safeguard it”. They linked it to “right of self-determination” and assured to “fight for it with unity and steadfastness”.


Whatever stature Geelani has created now for his “steadfastness” on “right of self-determination”, was once one of the mainstream leaders who had repeatedly took oath of Indian and J&K constitutions and proudly sat in the front rows of J&K Legislative Assembly, at least for three terms. Senior NC leaders- Ali Mohd Sagar and Nasir Aslam Wani have recently taken Geelani to talk for his recent anti-NC comments and shown him the mirror.


They accused Geelani of “sabotaging and undermining the heroic and indigenous struggle of the people of Kashmir for their political rights” and said that when Sheikh Sahib was in prison Geelani was “contesting elections and sitting in the legislative assembly”. Asking him to explain for “continuing to contest elections post-1953”, when National Conference avoided “electoral politics to fight the illegitimate deposition of a popular Government and elected PM”. “If Geelani thinks 1975 accord was treachery, then he is the biggest traitor for validating the erosion of the State’s Autonomy from 1953 to 1975 by being an MLA and contesting candidate...” Even after the accord, Geelani contested elections and “was the last of the front-row Hurriyat leaders who renounced electoral politics (in 1989) and even opposed this path of resistance in communications with his erstwhile colleagues and was hesitant to resign as MLA”, they say. These are irrefutable facts and part of history.


Geelani’s threat of “bloodshed” is not meant for his own children who are advantageously engaged in State Govt. (one son is in SUKAST, second son on return from Pakistan absorbed as Consultant in Health Deptt & one grandson recently absorbed in SKICC); but for gullible Kashmiri youth who are made ‘sacrificial goat’ (as if their thirst for Kashmiri blood is not yet quenched) for unachievable political ends. He is selling dream of plebiscite which has become irrelevant as Pakistan did not comply with UN imposed conditions for plebiscite, brought in non-Kashmiri Muslims (Punjabi) & settled in PoK and handed over a large chunk of J&K territory to anti-Islamic China against which these Kashmiri leaders never protested. These too are irrefutable facts. The call for “life & death” on Article 35A is designed to unleash violence.



This brings to a relevant point, at least for debate. Are threats, whipping up people’s passion, protests on the streets and possibly violence relevant in determining constitutional validity of any provision? Does the decision largely depend on political waves unleashed through mass agitation and street protest or violence? Or it solely depends on the legal arguments put forth in favour and against retention of constitutional provision before SC Bench?



Last week proved proverbially a landmark week for Indian independent judiciary which delivered three path breaking judicial judgments- two by the Apex Court & one by the CBI Court of Panchkula- that make every true Indian proud and secured. These judicial pronouncements on most sensitive issues including on triple talaq and on Baba Ram Rahim should be eye openers especially for religious & fanatic bodies and separatists.
Kashmir separatists, who are planning massive protests on Article 35A, must understand that the Courts are not frightened to pronounce verdicts “without favour or fear” to which the Judges take oath and adhere to it while deciding matters including sensitive ones. More than triple talaq issue, it was the rape charge against a self-styled ‘Godman’ Baba Ram Rahim whose huge following was on the display on the roads of Panchkula on the day of judgment that speak volumes of the courage and conviction of the CBI judge Jagdeep Singh who held the Baba guilty of rape of two Sadhvis (woman disciples) some 18 years ago. The mayhem that followed Godman’s conviction accounting for 30 deaths mainly due to mishandling of situation by Haryana Govt unravels the pressure and fear of life to any person who was to deliver verdict in such situations. But the judiciary has stood to its reputation of independence and fearlessness unmindful of the pressure and risk involved. It is well known that this self-styled ‘Godman’ had political patronage and was a powerful man by all counts but he was sent to jail to pay for his sins, political connection with ruling party notwithstanding.


Triple talaq was another very sensitive issue given AIMLB claim of it being attached to Islam but the Supreme Court did not hesitate to strike down this 1400-old practice and break the shackles of injustice of Muslim women. While legally, it was 3:2 verdict but in reality this uncivilized practice was pin down by all the five Judges since minority judgment of CJI Khehar & Abdul Nazeer too put immediate injunction against it seeking law by Parliament. Even such a sensitive issue failed to deter the judges to say what they felt was correct without fear or favour.



Even highly important issue of right of privacy and related matter of Aadhaar was decided against Modi Govt pleadings by 9-Judge constitutional bench which unanimously held it to be a fundamental right. It overruled SC’s two earlier judgments on the issue. It held what it thought to be correct and just today.


How can Kashmiri separatists and major political parties can overlook these developments and are warming up for mass agitation against “meddling” with Article 35A, starting with protests on last Friday. The separatists’ trio- Syed Ali Shah Geelani, Mirwaiz Umar Farooq & Yasin Malik, openly warned SC when they said, “If the Supreme Court issues any adverse orders on Article 35A, a complete agitation will start from that moment.”



NC supremo Dr. Farooq Abdullah is too gearing up for agitation. He too has warned, “Scrapping of Article 35A will lead to a storm which will create devastation with each passing day,” Seeking a “united fight” of all parties to defend Article 35-A,” he claimed that Article 35-A was more advantageous to people of Ladakh and Jammu than Kashmiris, a claim that nobody tends to buy in both regions and is practically laughable. More than the ‘pith and substance’ of this provision relating to special rights to Permanent Residents, it is viewed in both regions as roadblock to full integration of J&K with rest of India despite being constitutionally accepted “integral part of the Union of India”. ( Preamble & section 3 of J&K Constitution of which both Geelani and Dr. Farooq Abdullah had sworn many times in their life)



No agitation or violence can shake the edifice of Supreme Court’s independence and courage. Planned agitation and violence in Kashmir by separatists or other parties only reveal that they have lost faith in their proud legal armory and instead started brow beating the Judges as if their job is not to examine the validity of an impugned provision to the touch stone of the Constitution but to decide the issue on the basis of protests in Kashmir and their projected sentiments on it which discriminates Muslim women in same measure as non-Muslim girls.


Jammu with overwhelming anti-Article 35A sentiments have full faith in Apex Court and would accept its verdict in whatever ways it comes. If the Apex Court holds Article 35A constitutionally valid, there won’t be any problem for Jammu but why Kashmir leadership wouldn’t accept SC verdict if it is adverse to their stand? There are host of legal luminaries at the beck and call of separatists and why don’t they send them to argue and convince SC of their point of view instead of provoking people’s sentiments and shed blood. Alternatively, they can engage the best Indian lawyers and their exorbitant fee should not be any problem for affluent leaders. Tariq Hamid Karra, an equally ardent votary of this law, has done the correct thing. He has become private respondent in the matter in SC and engaged a very senior lawyer to defend this article. Hooliganism and bloodshed cannot be an alternative to rule of law especially when separatists and Kashmir politicians are seeking dialogue with distrustful neighbour to end stalemate on Kashmir. Logics and constitutionality must prevail over politics of violence and hatred.




(The writer is former Secretary Information, health, transport, CAPD departments and a member of Public Service Commission, feedback: [email protected])





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