Thursday 12 September 2019

Twin Protests On Muharram Day at Jantar Mantar In Solidarity With Seven Million Kashmiris Locked Up

Co-Written by Dr. P.S. Sahni & Shobha Aggarwal
In solidarity with the locked up Kashmiris not one, but two protests were held simultaneously from 11 a.m. to 3 p.m. on the 10th of September, 2019.The organizers and participants of the first protest were Kashmiri students and professionals based in Delhi or outside Delhi who decided to come together at JantarMantar on the day of Muharram. Speakers explained that Imam Hussein, grandson of Prophet Muhammad was beheaded in 680 CE at the battle of Karbala; the mourning/remembrance/observance of Muharram includes deriving messages from Hussein’s sacrifice and includes story telling. Iman Hussein’s family members and companions accompanying him were killed or subjected to humiliation. Muharram being the first month of the Islamic calendar its tenth day known as Ashura symbolizes struggle against oppression.
The analogy of Muharram was used to depict the plight of entire population of Kashmir to be under oppression and facing a near death; yet struggle against oppression was to continue. In fact people of religions other than Islam also take part in and observe the Muharram activities in India.
The placards prepared by the Kashmiri students had messages addressed to people of India primarily:
  • Stand up; Speak up
  • We are people too
  • We have mothers too; We have fathers too; We have brothers too
  • You voted for fascism once, not again
  • Your silence is seen as consent; Speak up for Kashmir
  • Caged in our own home; Do not be complicit in crime
  • I stand with Kashmir
  • Ink your finger red for Kashmir
  • Forced marriages are not made in heaven
  • Who killed Asrar???
There was no slogan shouting at this protest. At one corner lay the ‘corpse’ of democracy covered in white sheet and a garland of marigold flowers. Some mourners sat in vigil near the ‘corpse’. The banner at the protest site had a map of Kashmir in bloody red colour; it also symbolizes their Karbala as Kashmir has been under 36 days of military siege the protesters were mourning the death of democracy at JantarMantar not as citizens but as prisoners of Kashmir. The word ‘citizens’ stands cancelled on the banner.
The Kashmiri students listed legal professionals, RTI activists and politicians who are under arrest. It was pointed out that if this protest at JantarMantar had taken place in Kashmir all the students would have been arrested. A lady doctor related her experience of how stressed people in Kashmir are and have become victims of Post-traumatic stress disorder, depression. She asked three questions:
  • Why are Indians silent?
  • Of what are Indians afraid?
  • Can this India be really termed as a democratic country?
She said that either India is normal or Kashmir is normal. She started and ended her speech with Urdu poetry which was actually sung at the end. A student from Lucknow raised the question:
  • Which narrative is one to believe in that of the Indian state or the lived experience of Kashmiris?
Another Kashmiri student said that this is a solidarity demonstration and praised the courage of the participants who had come to attend. To non-Kashmiris the message was:
  • What has happened in J & K will happen to whole of India one day
  • This monster – loss of Constitution and democracy in Kashmir – will come for you in India
A speaker disclosed that there were death threats to them back in Kashmir.
The Second Protest
 
In the second protest the participants included women’s groups – National Federation of Indian Women, Purogami Mahila Sangathan, All India Democratic Women’s Association,Pragatisheel MahilaS angathan;senior activists like Tapan Bose, documentary film maker; residents from slums, resettlement colonies & workers from industrial areas participated in the protest demonstration. Leaflets in Hindi and English were distributed by Purogami Mahila Sangathan. The protesters carried placards with messages in Hindi and English:
  • Down with lockdown
  • Freedom is our fundamental right
  • We dare because we care
  • People of Kashmir you are not alone; We are with you
  • Restore democratic rights of Kashmiri women
  • If there is heaven on earth it is here; it is here, it is here; now where is that heaven; where is it?
Speakers stressed the following points:
  • In the name of Indians,don’t oppress Kashmiris
  • We oppose the Government’s oppression in Kashmir
  • Remove the telecommunications blocked for over 35 days
  • The role of army should be confined to protecting the borders
  • We oppose the establishment of Hindu Rashtra in India
  • The statement of right wing leaders of Haryanaabout north-Indian men to now easily marryKashmiri girls is highly deplorable
  • Hindu workers in Kashmir feel safe working for decades in the valley
  • An appeal to all Indians to strengthen this movement in support of Kashmir
The following slogans were raised:
  • Stop atrocities on Kashmiri people
  • Long live our unity and solidarity with people of Kashmir
A poem was read out in support of Kashmiri people; shayari (Urdu poetry) was used in abundance by several speakers capturing their concern and expressing solidarity with the oppressed people of Kashmir.
At the end of this protest at about 2 p.m. the protesters marched in a rally towards the police barricade and shouted slogans in support of the people of Kashmir. Finally they stood in support with the Kashmiri students.
(Dr. P.S. Sahni & Shobha Aggarwal are members of PIL Watch Group. Email: pilwatchgroup@gmail.com)

Saturday 7 September 2019

With Kashmiris Still Locked Up, Supreme Court In No Hurry To Hear Petitions

As we wait with bated breath for real news from Jammu and Kashmir since the total clampdown of 5 August, 2019, a large number of Writ Petitions finally got filed and the Supreme Court belatedly heard these on 28.08.2019 and some again on 05.09.2019. I read those of the petitions uploaded on the web and prepared this brief piece; and added a note on what one perceives to be the kingpin provision of the President’s Proclamation dated 19.12.2018! Hopefully it should help readers keep abreast of the legal battle ahead.
Part I
All the petitions filed in the Supreme Court were listed before a bench comprising of Chief Justice of India Ranjan Gogoi, Justices S.A. Bobde & S. Abdul Nazeer and are being detailed herein.
Petitions on Constitutional Challenge
In the first category are the cases which challenge the constitutionality, legality of one or all of the following:
i. Presidential Order C.O. 272 dated 05.08.2019
ii. Presidential Order C.O. 273 dated 06.08.2019
iii. The Jammu and Kashmir (Reorganisation) Act of 2019, which will come into effect on 31st October, 2019.
These are 8 in number and the details are given below:
S.No.Case No.Cause Title
1.W.P.(Civil) No. 1013/2019Manohar Lal Sharma Versus Union of India & Another
2.W.P.(Civil) No. 1048/2019Shakir Shabir Versus Union of India & Others
3.W.P.(Civil) No. 1068/2019Soayib Qureshi Versus Union of India & Others
4.W.P.(Civil) No. 1037/2019Mohd. Akbar Lone & Another Versus Union of India & Others
5.W.P.(Civil) No. 1062/2019Inder Salim Alias Inder Ji Tickoo & Another Versus Union of India & Others
6.W.P.(Civil) No. 1099/2019Shah Faesal & Others Versus Union of India & Another
7.W.P.(Civil) No. 1070/2019Radha Kumar & Others Versus Union of India & Another
8.W.P.(Civil) No. 1104/2019Muzzafar Iqbal Khan Versus Union of India & Others
Key: W.P. stands for Writ Petition
A W.P. (Civil) No. 1082/2019 titled Farooq Ahmad Dar Versus Union of India & Others has also been filed and was listed with the above petitions but details of the petition are not available.
Interim Relief/Stay Prayed For
In some of the petitions, applications have been filed for interim relief/stay of the operation of the two Presidential Orders and The Jammu and Kashmir (Reorganisation) Act of 2019.
President’s Rule Challenged
In Soayib Qureshi’s petition the constitutional validity of Presidential Order and notification dated 19.12.2018 imposing President’s Rule in Jammu & Kashmir has also been challenged. Dr. Shah Faesal’s petition specifically challenges Para (c)(ii) of the said President’s Proclamation.
In all the above petitions notice has been issued to the Government and they will be heard by a five judge constitution bench in the first week of October, 2019. Many more petitions are expected to be filed once the clampdown is lifted.
Petitions on Freedom of Press
In W.P. (Civil) No. 1031/2019 titled Anuradha Bhasin Versus Union of India & Others filed on 10.08.2019, the Executive Editor of Kashmir Times asked for immediate restoration of all modes of communication including mobile, internet and landline services throughout Jammu and Kashmir in order to provide an enabling environment for the media to practice its profession. In this petition notice was issued on 28.08.2019 and it was listed again on 05.09.2019. Anuradha Bhasin filed an additional affidavit on 04.09.2019 which gives a chilling account of suppression of media in Kashmir and its effect on journalists. This petition will be listed on 16.09.2019 for final disposal.
The Hon’ble Supreme Court of India seems to be oblivious to the sufferings of Kashmiris even as the information blockade continues for over a month now; as it refrains from passing any effective orders in these petitions and keeps postponing the hearing!
Habeas Corpus to meet parents
In W.P. (Criminal) No. 225/2019 titled Mohammad Aleem Syed versus Union of India the petitioner was allowed to travel to Jammu & Kashmir; go to Anantnag; meet his parents and after ensuring their welfare, to report back on the next date fixed i.e. 05.09.2019. He was directed to file an affidavit of the events that transpire immediately on return from Jammu & Kashmir which he did in sealed envelopes. His petition will be now be taken up on 16.09.2019 with Bhasin’s petition. The Court has directed that the “Affidavit filed by the petitioner in three sealed covers be kept in the safe custody of the Secretary General of this Court, to be opened only under orders of the Court.”
Habeas Corpus to meet friend and colleague
In W.P. (Criminal) No. 229/2019 titled Sitaram Yechury Versus Union of India and Another, the petitioner who is General Secretary of the Communist Party of India (Marxist) sought the production of Mr. Mohammad Yousuf Tarigami, a member of the Party and an erstwhile elected member of the Jammu & Kashmir Legislative Assembly. Sitaram Yechury had complained that in spite of best efforts, he has not been able to enquire about the welfare of his colleague and his attempt to meet him personally by going to the State of Jammu & Kashmir has also not succeeded, as he has been refused entry into the State. He has been permitted by the Supreme Court to travel to Jammu & Kashmir only for the purpose of meeting his friend and colleague party member and for no other purpose. The order specifically stated that if the petitioner is found to be indulging in any other act of omission or commission it will be construed to be a violation of the Court’s order. He was directed to file an affidavit in the court on his return which he did in a sealed envelope. On 05.09.2019 the court allowed the shifting of Mr. Mohammad Yousuf Tarigami to AIIMS Delhi for treatment. The case will be listed again in a week.
Habeas Corpus to meet mother
On a petition filed on 04.09.2019 the Supreme Court allowed Iltija, daughter to former Jammu and Kashmir Chief Minister Mehbooba Mufti, to travel to Srinagar to meet her mother despite objections from the Government. However moving around in other parts of Srinagar is subject to requisite permission from the district authorities as and when necessary!
[Writ Petition (Criminal) No. 250/2019 titled Iltija Versus Union of India and Another]
Release of Political Leaders
In one of the first petitions Congress ideologue, Tehseen Poonawalla had asked for release of political leaders; withdrawal of curfew; restoration of all modes of communication lines. In this petition also notice was issued on 28.08.2019. It was disposed of on 05.09.2019 without giving any relief with the liberty to intervene in Bhasin’s petition which raises similar issues.
[W.P. (Civil) No. 1017/2019 titled Tehseen Poonawalla Versus Union of India and Another]
Questionable Petitions
The first petition to be filed on the issue was by Manohar Lal Sharma on 6th August itself. When this petition came up for hearing (I was present in court at that time), the Chief Justice reprimanded the petitioner and told him why he filed such a badly drafted petition in such a serious matter. He however declined to dismiss the petition even on technical grounds saying it will affect other pending petitions. The downside is that whatever judgement is passed in these writ petitions the case title will be Manohar Lal Sharma Versus Union of India & Another! Manohar Lal Sharma keeps filing lots of PILs in the Supreme Court!!
There was one more petition filed by Vineet Dhanda. Not much information is available on this petition except as per media reports it is a “pro-government” petition. However, his petition was dismissed on 05.09.2019.
Part II
A lot has been written on the Presidential Order C.O. 272; Presidential Order C.O. 273 and The Jammu and Kashmir (Reorganisation) Act of 2019. But the precursor of all this was the Proclamation by the President of India vide G.S.R. 1223(E) dated 19th December, 2018 imposing President’s rule in Jammu & Kashmir which was extended on 03.07.2019. Para (c)(ii) of the said Proclamation inter alia stated:
“the operation of the following provisions of the Constitution and of the State Constitution is hereby suspended, namely:–– “So much of the first proviso to Article 3 of the Constitution as relates to the reference by the President to the Legislature of the State and the second proviso to that article; …” [Emphasis provided]
First Proviso to Article 3
Article 3 of the Constitution of India relates to “Formation of new States and alteration of areas, boundaries or names of existing States.” First Proviso to Article 3 states:
“Provided that no Bill for the purpose shall be introduced in either House of Parliament except on the recommendation of the President and unless, where the proposal contained in the Bill affects the area, boundaries or name of any of the States, the Bill has been referred by the President to the Legislature of that State for expressing its views thereon within such period as may be specified in the reference or within such further period as the President may allow and the period so specified or allowed has expired.” [Emphasis provided]
Second Proviso to Article 3
The second proviso in the President’s Proclamation of 19.12.2018 refers to The Constitution (Application to Jammu and Kashmir) Order, 1954, C.O. 48 which adds the following proviso to Article 3 of the Constitution of India:
“Provided further that no Bill providing for increasing or diminishing the area of the State of Jammu and Kashmir or altering the name or boundary of that State shall be introduced in Parliament without the consent of the Legislature of that State.” [Emphasis provided]
The Kingpin Provision
As earlier proclamations imposing President’s rule in Jammu and Kashmir included similar provisions, suspension of these did not invite any scrutiny this time also. Para (c)(ii) of the Proclamation remained unchallenged in a court of law all these months. But it is the kingpin provision which formed the basis of The Jammu and Kashmir (Reorganisation) Act of 2019 as the requirement of both the reference by the President to the legislative assembly of the State in first Proviso and the consent of the Legislature of the State of Jammu and Kashmir in the second Proviso were suspended. The conspiracy to do what got done in the first week of August, 2019 was hatched at least nine months back; the government laboured hard to keep it a secret; and then dropped the bombshell. With hindsight one wonders what if the validity of Para (c)(ii) of the Proclamation had been challenged in the Supreme Court earlier? Could it have back-footed the Government? Could it have helped change the course of events in August, 2019?
[Shobha Aggarwal is a Delhi based lawyer and member of PIL Watch Group. Email: pilwatchgroup[at]gmail.com]

Also at: http://www.sacw.net/article14154.html

Tuesday 3 September 2019

The Presidential Orders That Felled A State; Writ Petitions Challenging This Fraud On The Indian Constitution; Praying Justice For Kashmiris

As we wait with bated breath for real news from Jammu and Kashmir since the total clampdown of 5 August, 2019, a large number of Writ Petitions finally got filed and the Supreme Court belatedly heard these on 28.08.2019. I read those of the petitions uploaded on the web and prepared this brief piece; and added a note on what one perceives to be the kingpin proviso of the President’s Proclamation dated 19.12.2018! Hopefully it should help readers keep abreast of the legal battle ahead.
Part I
All the petitions filed in the Supreme Court were listed before a bench comprising of Chief Justice of India Ranjan Gogoi, Justices S.A. Bobde &S. Abdul Nazeer and are being detailed herein.
Petitions on Constitutional Challenge
In the first category are the cases which challenge the constitutionality, legality of one or all of the following:
  1. Presidential Order O. 272 dated 05.08.2019
  2. Presidential Order C.O. 273 dated 06.08.2019
  • The Jammu and Kashmir (Reorganisation) Act of 2019,which will come into effect on 31st October, 2019.
These are 8 in number and the details are given below:
S.No.Case No.Cause Title
1.W.P.(Civil) No. 1013/2019Manohar Lal Sharma Versus Union of India & Another

2.W.P.(Civil) No. 1048/2019

Shakir Shabir Versus Union of India & Others
3.W.P.(Civil) No. 1068/2019

Soayib Qureshi Versus Union of India & Others
4.W.P.(Civil) No. 1037/2019

Mohd. Akbar Lone & Another Versus Union of India & Others
5.W.P.(Civil) No. 1062/2019

Inder Salim Alias Inder Ji Tickoo & Another Versus Union of India & Others
6.W.P.(Civil) No. 1099/2019

Shah Faesal & Others Versus Union of India & Another
7.W.P.(Civil) No. 1070/2019

Radha Kumar & Others Versus Union of India & Another

8.W.P.(Civil) No. 1104/2019Muzzafar Iqbal Khan Versus Union of India & Others
Key: W.P. stands for Writ Petition
AW.P.(Civil) No. 1082/2019 titled Farooq Ahmad Dar Versus Union of India & Others has also been filed and was listed with the above petitions but details of the petition are not available.
Interim Relief/Stay Prayed For
In some of the petitions, applications have been filed for interim relief/stay of the operation of the two Presidential Orders and The Jammu and Kashmir (Reorganisation) Act of 2019.
President’s Rule Challenged
In Soayib Qureshi’s petition the constitutional validity of Presidential Order and notification dated 19.12.2018 imposing President’s Rule in Jammu & Kashmir has also been challenged. Dr. Shah Faesal’s petition specifically challenges Para (c)(ii) of the said President’s Proclamation.
In all the above petitions notice has been issued to the Government and they will be heard by a five judge constitution bench in the first week of October, 2019. Many more petitions are expected to be filed once the clampdown is lifted.
Petitions on Freedom of Press
On 10.08.2019 Anuradha Bhasin, Executive Editor of Kashmir Times filed a petition for immediate restoration of all modes of communication including mobile, internet and landline services throughout Jammu and Kashmir in order to provide an enabling environment for the media to practice its profession. In this petition notice has been issued which is returnable in seven days. [W.P. (Civil) No. 1031/2019 titled Anuradha Bhasin Versus Union of India & Others]
Release of Political Leaders
In one of the first petitions Congress ideologue, Tehseen Poonawalla has asked for release of political leaders; withdrawal of curfew; restoration of all modes of communication lines. In this petition also notice has been issued. It will be listed along with Anuradha Bhasin’s petition. [W.P. (Civil) No. 1017/2019 titled Tehseen Poonawalla Versus Union of India and Another]
Habeas Corpus to meet parents
In W.P. (Criminal) No. 225/2019 titled Mohammad Aleem Syed versus Union of India the petitioner has been allowed to travel to Jammu & Kashmir; go to Anantnag; meet his parents and after ensuring their welfare, to report back on the next date fixed. He has been directed to file an affidavit of the events that transpire immediately on return from Jammu & Kashmir.
Habeas Corpus to meet friend and colleague
In W.P. (Criminal) No. 229/2019 titled Sitaram Yechury Versus Union of Indiaand Anotherthe petitioner who is General Secretary of the Communist Party of India (Marxist) sought the production of Mr. Mohammad Yousuf Tarigami, a member of the Party and an erstwhile elected member of the Jammu & Kashmir Legislative Assembly. Sitaram Yechuryhad complained that in spite of best efforts, he has not been able to enquire about the welfare of his colleague and his attempt to meet him personally by going to the State of Jammu & Kashmir has also not succeeded, as he has been refused entry into the State. He has been permitted by the Supreme Court to travel to Jammu & Kashmir only for the purpose of meeting his friend and colleague party member and for no other purpose. The order specifically states that if the petitioner is found to be indulging in any other act of omission or commission it will be construed to be a violation of the Court’s order. He has also been directed to file an affidavit in the court on his return.
[Both the petitioners in habeas corpus petitions have since visited J & K as per the Supreme Court order.]
Questionable Petitions
The first petition to be filed on the issue was by Manohar Lal Sharma on 6th August itself. When this petition came up for hearing (I was present in court at that time), the Chief Justice reprimanded the petitioner and told him why he filed such a badly drafted petition in such a serious matter. He however declined to dismiss the petition even on technical grounds saying it will affect other pending petitions. The downside is that whatever judgement is passed in these writ petitions the case title will be Manohar Lal Sharma Versus Union of India & Another!
There is one more petition which is filed by Vineet Dhanda. Not much information is available on this petition except as per media reports it is a “pro-government” petition. Both Vineet Dhanda and Manohar Lal Sharma keep filing lots of PILs in the Supreme Court!!
Part II
A lot has been written on the Presidential Order C.O. 272; Presidential Order C.O. 273 and The Jammu and Kashmir (Reorganisation) Act of 2019. But the precursor of all this was the Proclamation by the President of India vide G.S.R. 1223(E) dated 19th December, 2018 imposing President’s rule in Jammu & Kashmir which was extended on 03.07.2019. Para (c)(ii) of the said Proclamation inter alia stated:
“the operation of the following provisions of the Constitution and of the State Constitution is hereby suspended, namely:–– “So much of the first proviso to Article 3 of the Constitution as relates to the reference by the President to the Legislature of the State and the second proviso to that article; …” [Emphasis provided]
First Proviso to Article 3
Article 3 of the Constitution of India relates to “Formation of new States and alteration of areas, boundaries or names of existing States.” First Proviso to Article 3 states:
“Provided that no Bill for the purpose shall be introduced in either House of Parliament except on the recommendation of the President and unless, where the proposal contained in the Bill affects the area, boundaries or name of any of the States [***], the Bill has been referred by the President to the Legislature of that State for expressing its views thereon within such period as may be specified in the reference or within such further period as the President may allow and the period so specified or allowed has expired.” [Emphasis provided]
Second Proviso to Article 3
The second proviso in the President’s Proclamation of 19.12.2018 refers to The Constitution (Application to Jammu and Kashmir) Order, 1954, C.O. 48 which adds the following proviso to Article 3 of the Constitution of India:
“Provided further that no Bill providing for increasing or diminishing the area of the State of Jammu and Kashmir or altering the name or boundary of that State shall be introduced in Parliament without the consent of the Legislature of that State.” [Emphasis provided]
The Kingpin Provision
As earlier proclamations imposing President’s rule in Jammu and Kashmir included similar provisions, suspension of these did not invite any scrutiny this time also. Para (c)(ii) of the Proclamation remained unchallenged in a court of law all these months. But it is the kingpin provision which formed the basis of The Jammu and Kashmir (Reorganisation) Act of 2019 as the requirement of both the reference by the President to the legislative assembly of the State in first Proviso and the consent ofthe Legislature of the State of Jammu and Kashmir in the second Proviso were suspended. The conspiracy to do what got done in the first week of August, 2019 was hatched at least nine months back; the government laboured hard to keep it a secret; and then dropped the bombshell. With hindsight one wonders what if the validity of Para (c)(ii) of the Proclamation had been challenged in the Supreme Court earlier? Could it have back-footed the Government? Could it have helped change the course of events in August, 2019?