Published On: Mon, Jun 8th, 2015

‘Not Indian by birth’

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By Dr. Syed Nazir Gilani –

At the very outset I wish to extend my heartfelt condolences to the family and friends of a Sikh youth in Jammu, who gave his life protesting against the removal of posters of Khalistan militant leader Jarnail Singh Bhindranwale, who was killed during an army operation in the holiest Sikh Shrine, Akal Takht, in 1984. The deceased was a State Subject and it has to be ascertained whether he was killed by the State police or by a member of security forces (non-State). The two carry varying civil and criminal liabilities for their omissions in the disputed State.
There are no two opinions that India is the largest democracy in the world and one should have no hesitation to assert that its democratic credentials and credibility of keeping its pledges, fail to pass the litmus test in the Muslim majority State of Jammu and Kashmir. Indian governments continue to disregard the agreements made with the Kashmiri leadership at various points in history since October 1947 and since it submitted all its claims and interests in Jammu and Kashmir to be voted upon by the people under a UN supervised arrangement in January 1948.
Indian mind-set to run the politics and administration in Jammu and Kashmir (Valley in particular) is not only ad hoc, infirm but it is communal as well. The claim that Jammu and Kashmir is an integral part of India has no merit at home or at the international level. The Indian claim assumes merit only when India supports the Jammu and Kashmir government representing all areas and all sections of the community (currently under UN caution and elected from only a part of the State), to prepare for a UN supervised referendum. The arrangement has to satisfy Pakistan as a party to the dispute. In fact the UN has outsourced two parts of Kashmir into the trust of government of Pakistan. Therefore, any claim that the State is an integral part of India remains justiciable and has no merit.
All schools of politics, Hurriyat and mainstream reject the Indian claim that the State has decided to be an integral part of India. The State Government set up a Committee vide Government order No. 1164-GAD of 1996 dated 29 November 1996 to examine the merits of the Indian claim and more. The report was placed on the table of two Houses of Jammu and Kashmir Legislature on 16 April 1999. It was subsequently adopted by the State Legislative Assembly on 26 June 2000 and by the State Legislative Council on 27 June 2000 in a special session convened for this very purpose.
The report has concluded that State in October 1947 has parted with only three subjects, namely, Defence, External Affairs and Communications, to be looked after by Government of India. The accession was limited to these three subjects and provisional in character. The report further confirms that there has been no merger with the union of India and the matter remains inconclusive so far. The report of the Committee set up by the State Government has made a serious error in failing to take on board in the report that the claim made by India based on the provisional terms of accession has been taken over by the jurisprudence of UN debate on the Indian claim and by the mechanism concluded in UN Resolutions to conduct a free and fair vote in the State.
The report of the Committee has made another serious error in assuming competence which in itself is under UN caution. The present Government elected at Srinagar, is elected from only a part of the Kashmir territory and lacks in its representative character. It does not represent the three other people represented by Muzaffarabad, Gilgit and the Diaspora.  India has a duty to ensure that Srinagar has a provisional and representative Government as identified by the United Nations. All principal elements and minorities have to be represented in the UN identified Government. Since Pakistan is a party to the dispute and looks after two administrations of Jammu and Kashmir, its concurrence and input is equally a basic requirement.
The recent statement by Pakistan Army chief Raheel Sharif at a gathering at the National Defence University in Islamabad that “Kashmir is an unfinished agenda of partition and Pakistan and Kashmir are inseparable,” and that “While we wish peace and stability in the region, we want Kashmir’s just resolution in the light of UN resolution and as per aspirations of Kashmiris to bring lasting peace in the region,” reinforces Pakistan’s serious approach on the question of Jammu and Kashmir and puts Indian claim in the dock. In aggregate Indian claim at home is questioned by the State Government report, challenged by Hurriyat and now battered by the political and military leadership in Pakistan. The international community has expressed itself in UN Resolution of 30 March 1951.
Government of India continues to misunderstand the Kashmiri Muslims and wishes to define their interests through an ad hoc administrative measure. It is not going to work in Indian favour at all. Indian Government has outsourced Kashmir to its secret agencies and to the muscle of the security forces. It remains a puzzle that Indian democratic society continues to support the colonial and communal reflexes of its Government in Jammu and Kashmir. Officers of Indian service cadre stationed in the Valley behave like Gulliver’s in the Lilliput. They have no regard for a duty to fairness and do not bother to value the ‘life’, ‘property’ and ‘honour’ of the Kashmiri Muslim. All that the Muslims (majority) in the Valley have is a process of life and there is no quality of life around the corner.
Colonial and communal mind-set of Indian officers seems to have lost all moral moorings and they seem to enjoy a no holds barred authority in hurting and humbling the Kashmiri Muslims. The passport issue of Syed Ali Geelani is one of the many examples. Indian officers are so overwhelming in their authority that a major section of Kashmiri Muslims have been indexed for the non-issuance of a travel document. Hurriyat (M) chairman Mirwaiz Umar Farooq and senior Hurriyat leader Prof. Abdul Gani Bhat have also been denied the passports. Shabir Ahmad Shah has an objection of conscience and does not apply for a passport. Administration hopes to conceal a regime of abuse of human rights by placing these people under an iron curtain and subjected to a number of unrealistic demands.

One such demand is forcing a Kashmiri (Muslims) to declare himself or herself as an Indian before they could be considered for the grant of a passport. Indian media and some other interested sections highlighted the fact that Syed Ali Geelani has declared himself as an “Indian” in his passport application. It is not so.
Syed Ali Geelani has explained his position that “I am not by birth Indian”. He is right in his explanation and understanding. Syed Ali Geelani was born prior April 1956, by which time every Indian required a permit to enter into Jammu and Kashmir. By birth he is a Kashmiri – “State Subject” as defined by State Subject Law of 20 April 1927. Since January 1948 and UN Resolution of 30 March 1951 his national status continues to remain justiciable.
Mohammad Ali Jinnah has described his national status in his Passport issued at Karachi in November 1946 as “British Subject By Birth” and Mohandas Karamchand Gandhi in his Passport issued in August 1931 has described his national status as “I am a British protected subject”. Passport used to be a request from the Governor General of India, “to all those whom it may concern to allow the bearer to pass freely without let or hindrance, and to afford him/her every assistance and protection of which he/she may stand in need”.
Syed Ali Geelani is a State Subject and his national status remains justiciable. The fact that he was made to make an entry in regard to his national status in the passport application has no merit. There are four Kashmiris living under three administrations at Srinagar, Muzaffarabad, Gilgit and the Diaspora. They genuinely regard themselves as State Subjects. The issue needs to be addressed within the jurisprudence of UN Resolutions on Kashmir.
Without indulging in interpreting the national status of a Kashmir in one or the other manner, Indian Government should revisit its policy of waging a war of all manner against the Muslims in Kashmir. It is right time that it reads merit in the statement made by General Raheel Sharif that the, “contours of future war are fast changing” and Pakistan will not allow anyone to use “proxies” against it. Using the instrument of proxies in the Valley and outside Kashmir at any international forum has passed its sell by date.
The earliest that Government of India has to do is to honour para 6 of UN Security Council Resolution (47(1948) of 21 April 1948. It obligates the Government of India that, “The Government of India should undertake to ensure that the Government of the State invite the major political groups to designate responsible representatives to share equitably and fully in the conduct of the administration at the ministerial level while the plebiscite is being prepared and carried out”.

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