Published On: Sun, Aug 12th, 2012

I am not a free man?

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Dr. Syed Nazir Gilani,
Secretary General – JKCHR.

Grievances and dissents of any form should not be interpreted as anti-State activities

While writing this column I am on AI 112 flight on my way to Delhi and then on to Srinagar. Prior to leaving for Delhi, I was attracted by a news caption in Daily Rising Kashmir, titled “I am not a free man”. It was a cry from none other than a teacher, a parliamentarian (member of J&K Legislature), a senior citizen and a person who advocates the Rights Case of the people of Jammu and Kashmir in his own manner.

He does not carry a gun, is never seen pelting a stone or engaged in any communal wrangle. I have seen him helping non-Muslim students while being a member of J&K Legislative Assembly and is respected by saner elements in non-Muslim community as well.Syed Ali Shah Geelani chairman of Hurriyat (G) has raised a cry that he is not a ‘free man’ and is not allowed the freedom to move as a free State Subject and his right to offer prayers in a mosque of his choice is violated. On the contrary the instruments of State machinery (police) maintained that he was free and there was no bar on his participation in an Iftar party. Restraints on Syed Ali Shah Geelani, Shabir Ahmad Shah, Nayeem Khan and many others in the month of Ramadan and otherwise which restrain their freedom of movement and freedom to discharge their religious obligations in this month are very unfortunate and unacceptable.

The Constitution of India and the Constitution of J&K guarantees, freedom of expression, freedom of assembly, freedom of religion and freedom of movement not only to its citizens but to all other non-citizens domiciled in the two habitats. The State machinery is primarily charged with a duty to uphold the two constitutions and remain on the side of the freedoms guaranteed in the two Constitutions.

There seems to be a difference in the statement made by Syed Ali Shah Geelani and the police account in regard to the former’s grievance. Without prejudice to the respective merits of the two accounts, one would be guided by a photographic visual which shows the elderly politician lodged in a police van and being frisked away. Police seem to have taken this step just on the stepping out from his house and on his way to offer Friday prayers at a local mosque.
There is no doubt that police is charged with a duty to maintain law and order and in doing so police has to respect the rule of law which guarantees a freedom to a citizen to step outside his or her home at will. One fails to understand as to what law Syed Ali Shah Geelani would have breached by just stepping outside his own house and within the close proximity of his own house.

Police claim that on his appearance at a mosque and in his attempt to address a public gathering, people would resort to ‘stone pelting’, is unconvincing and a far-fetched excuse. If law and order were to be interpreted in this manner by the public servants in any other State of India, Indian civil society and the judiciary would have gone mad. Indian press and media would have taken serious cognizance and would have agitated public debate. It is unfortunate that the civil society, judiciary, press and media in the State of Jammu and Kashmir, and more so in the Valley have not taken enough trouble to engineer a social awakening against the danger of turning Jammu and Kashmir into an uncomfortable habitat.

A disagreement with the Government and a criticism of the Government is the right of a citizen. Governments are not the State. In the same manner the civil servants of a State have a duty to fairness and have to be obedient to the laws of the State. They should not agree with any Government which acts against the interests of the common citizen and remains at variance with its own oath taken under the constitution.

It has to be accepted that Jammu and Kashmir is an exceptional situation. It does not matter whether there are UN Resolutions or not and whether Pakistan is a party to the dispute or not. Articles 4 and 48 of the constitution of J&K confirm that the Government has a higher burden of constitutional duty, than just to govern or use its machinery to restrain citizens inside their homes under far-fetched excuses. Even if Indian wisdom in regard to its duties and obligations in Kashmir turns its back on the people of Kashmir, the State government has no choice but to honour the constitution.

J&K Government has continued to ignore its duty under article 4 of the constitution and article 48 continues to render the J&K assembly incomplete and unable to take any decision on behalf of all people identified in article 4 and 48 of the constitution. Any agreement that J&K Governments would make with the union of India or any other entity would not be considered valid, if these agreements fail in their consideration of articles 4 and 48.

Therefore, grievances and dissents of any form should not be interpreted as anti-State activities. The Government itself is imperfect and continues with a constitutional defect. Government of India on its part should not offer itself as a party to any school of politics in the J&K Government. All political opinions in Kashmir should be allowed a plain level field opportunity to advocate their political and social case before the common man and woman.

Government of India should be taking proactive and robust measure to assist the process of dialogue in a just and fair manner. It should not seek the shoulder of Pakistan to assist it (India) to calm down the tempers in Kashmir but should rave courage and entertain the grievances with enduring honesty.  It would not be in any ones interest to play the ‘wolf and the lamb’ with each other. Taking recourse to various unconvincing political stunts is not going to work or yield any results in Kashmir.

The people of Kashmir have a Rights Case and it has to be addressed first and foremost in accordance with constitution of J&K. The other tiers of redress are contained in the provisional instrument of accession with India, Indian complaint at the UN, UN resolutions, constitution of AJK, constitution of Pakistan and the obligations that Pakistan has assumed under UNCIP resolutions in AJK.

Settling the grievances through the use of police might would not help and it would be classed as an abuse of the office by a section of civil service in Kashmir. Any part of government machinery which is used to restrain, repress or disable a lawful activity, is likely to cascade into a corrupt authority. It is rightfully opined that the wisdom of restrictions and restraints currently placed on Syed Ali Shah Geelani, Shabir Ahmad Shah, Nayeem Khan and many others should be revisited and the practice needs to be brought to a quick end. The litmus test of a genuine government is its constituency of service and trust of the common citizen. Introducing and continuing a regime of restraints and restrictions makes a system rogue and corrupt. Good governance has to be in accordance with rule of law and in the interests of its people. There should be no one to say that “I am not a free man”.

Author is London based Secretary General of JKCHR – NGO in Special Consultative Status with the United Nations. He can be mailed at dr-nazirgilani@jkchr.com


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