Published On: Tue, Aug 18th, 2015

RSS vs government of J&K

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By Dr. Syed Nazir Gilani –

Rashtriya Swayamsevak Sangh (RSS) is hell bent to disturb the people and habitat of Kashmir. It does not accept Jammu and Kashmir as a Muslim majority state and claims that Kashmir is the spiritual home of Hindus in the world. Be it so, if it pleases the RSS. But it has started on a hidden agenda and has been using its auxiliary Muslim Rashtriya Manch (MRM) and allied groups such as Daryaganj-based Jamait Ulema-e-Hind and a network of NGOs to spread its influence in Kashmir. If the accusations are well founded, Delhi would be making a fatal mistake.

It is real now that RSS has successfully used Jammu and Kashmir Study Centre to challenge Article 35A of Indian Constitution which confers Special Rights or privileges or imposes restrictions with respect to Employment, Acquisition of Immoveable Property in the State, Settlement in the State and Right to Scholarship etc. The Jammu and Kashmir government has received a notice issued by the Supreme Court of India on the petition filed by RSS backed think tank. Article 53 A of the Indian constitution duly recognizes Article 6 of J&K Constitution, which defines the State Subjects and dates back to April 1927, when there was no Independent India.

As a start one would like to apprise RSS that their understanding of Kashmir is seriously flawed. It is a Muslim majority State and its status is disputed. It is in no way near to their claim of being a spiritual home of Hindus. It is a home for many other faiths of course. The present move in the Supreme Court of India could turn out to be an Albatross curse round their neck. Law Minister in the Government of Jammu and Kashmir Syed Basharat Bukhari is reported to have said that “We have received the notice. The case is at registry stage, we will prepare reply according to Constitution of Jammu and Kashmir.” Another leading academic and politician Prof. Saifuddin Soz has asked the J&K Government not to be complacent and fight the issue in the Supreme Court with all seriousness. Soz has cautioned against any self-serving politics on this issue and that the issue should be tackled as a serious legal proposition. Soz does not seem to have lost the ‘soz’ of Kashmir at heart.

The defence of Article 35 A of Indian Constitution and the Defence of Article 6 of J&K Constitution, which has its foundations in the State Subject Notification of 27 April 1927, need to be defended by every Kashmiri citizen whether he lives in Srinagar, Muzaffarabad, Gilgit, India, Pakistan and as the Diaspora. A common sense approach should be that the Supreme Court of India needs to be sensitized on the findings of Janki Nath Wazir chief justice and Shahmiri justice in the case of Magher Singh v Principal Secretary J&K Government heard by the High Court in 1953. The judgment has discussed the Instrument of Accession and held that it does not disturb the residual sovereignty of the State and its people. The judgment has held that “A careful examination of this article (article 370) would show that it in no way altered the basis of relationship between the State and the Union of India. The residuary sovereignty of the State and the powers of its Ruler in matters other than those specified in the Instrument of Accession remained unaffected. The purpose for which Article 370 was incorporated in the Indian Constitution is clear from the language of the article itself.” (A. I. R. 1953 J and K 25 Vol. 40, C. N. 17)

RSS needs to be challenged that the provisional Instrument of Accession of 26 October 1947 became a subject of adjudication at the UN Security Council in January 1948. Circumstances, manner and merit of this accession have to be referred to the free vote of the people under UN supervision. Government of Pakistan is a party to the dispute and the world has subscribed its Charter interest in the principle of equality and self-determination of the people of Jammu and Kashmir.

Jammu and Kashmir State has its own Constitution, flag and laws. RSS needs to be told in the Supreme Court that Section 18 of Indian Penal Code distinguishes between an Indian and a Kashmiri in the same manner as State Subject Notification of 27 April 1927 and article 6 of J&K Constitution differentiate between an Indian and a Kashmiri. According to Section 18 of IPC, “India” means the territory of India excluding the State of Jammu and Kashmir. Jammu and Kashmir has its own Penal Code.

Jammu and Kashmir Government has clarified this in The State Autonomy Report of 2000 and the State legislature has endorsed the fact that like other States Jammu and Kashmir has not yet merged into the union of India. The autonomy report has held that J&K State has not signed any instrument of merger with India and the accession is limited to Defence, External Affairs and Communication. In fact challenge to article 53 A would mean a violation of the terms of a limited accession and the obligation to refer the arrangement to free and fair public vote. Above all Pakistan has argued at the UN Security Council that even the limited accession was “obtained by fraud and violence” and “that the accession of the State to the Indian union would be tantamount to the signing of their death warrant.” (Pakistan’s defence at UN Document II dated 15 January 1948).

Government of J&K remains under a local, national and international scanner. As in the past, if any Kashmiri leader in the Government, in the opposition or outside assembly enters into a secret deal with Delhi, courtesy RSS case in the Supreme Court, he or she would have no future in the State and even dead would spurn it from their graves. It would be regarded as a crime against a people and against the jurisprudence of UN Resolutions on Kashmir. The Supreme Court of India does not have to satisfy the collective conscience of the Indians. It has to decide in reference to a people who have a provisional and specific contract with the Government of India. The merits of the contract have left the domestic jurisdiction in January 1948 and the UN Security Council is seized of the matter.

J&K Government, mainstream politicians, Hurriyat, others outside Hurriyat, civil society and every State Subject has a duty to rise to the occasion and use the Supreme Court in a judicious manner to educate the Indian masses that they have yet to know a lot about Kashmir. Supreme Court of India has to be urged to find whether the collective conscience of India supports the behaviour of its armies in Kashmir. It is important that we get to know how much the collective conscience of India approves of the killing of a generation and massive abuse of human rights in Kashmir.

People Democratic Party (PDP) is one side of the coin and shares its today and tomorrow with Bharatiya Janata Party (RSS) in Kashmir. There is a genuine question mark as to whether PDP would defend the trust of the people or sell its soul to the Lucifer. Soz has cautioned against any politics and complacency. The voter citizen has to take next important step and act as a vigilant citizen. The State is a disputed State and it is time that Pakistan revisits manner and quantum of its political, moral and diplomatic support to the people of Kashmir. It may be that the three Kashmiri administrations in Srinagar, Muzaffarabad, Gilgit and the fourth Kashmiri Diaspora needs to pool their wisdom and resources to become party in the Supreme Court of India. It is an ideal opportunity to have a battery of jurists and lawyers to subscribe their interest in the case and reach out to every decent Indian on the merits of Kashmir case.

Hurriyat in particular has a duty under its constitution to use the opportunity created by RSS petition in the Supreme Court to resurrect the merits of Kashmir case at home and abroad. It is a test case for all others as well. Afzal Guru was left alone to scale up to the gallows and it was after his death that all were out to shed their crocodile tears. Guru was not helped when help was required. Leaders and beneficiaries of Kashmir struggle since 1990 should at least discharge their trust this time. If we do not defend the case, it would cause a serious harm to the Rights Movement and Indian Government would use any adverse findings to chase off the international interest in the Kashmir case. It is our duty that we query the collective conscience of the people of India, courtesy RSS vs Government of J & K Case. Leaving the argument unattended in the Supreme Court is likely to create a serious harm.

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