Opposition MPs Could Try To Impeach The President of India For His Executive Orders of 5th, 6th August, 2019 Regarding Kashmir

by Dr P S Sahni 

The opposition Members of Parliament (MPs) in RajyaSabha(Council of States) could initiate the proceedings for the impeachment of the President of India for violation of the Constitution in right earnest in this winter session of the Parliament. Article 61 of the Constitution of India details the procedure for impeachment of the President. One fourth of the total number of MPs in RajyaSabha have to sign the resolution in this regard. As per the breakup of voting on 5th August, 2019 in RajyaSabha 61 members had opposed the Jammu& Kashmir Reorganization Bill which aimed to split Jammu & Kashmir (J & K) into two union territories. This was countered by 125 members in favour of the resolution through a voice vote. The total number of members in RajyaSabha is presently 238 (out of 245 with 7 vacancies as per RajyaSabha website assessed on 20.11.2019).The magic figure of 60members to initiate the process of impeachment is already within reach. Firstly, in any case a large number of MPs who abstained from voting or secondly who were absent because they could not make it to Parliament because of suddenness of the Government’s move without adequate notice; or thirdly who supported the resolution would now likely join the opposition move because of the very undemocratic and unconstitutional way in which the Govt. of India went about its hatchet job clandestinely without consultation with Kashmiri people or the opposition parties. Moreover the latter (third) category of MPs do not approve of the total shutdown of all necessary services for months w.e.f. 5th August, 2019 viz fixed line phones, mobile telephone, internet, printing of newspapers; Section 144/indefinite curfew; closure of schools, colleges, markets; converting all of Kashmir into a chhaavanee (cantonment). Many opposition MPs who had voted in favour of the Govt. are now likely to sign the resolution for impeachment because the process of going about by the Govt. was totally unacceptable and undemocratic – which they have said now in as many words.

True, arithmetic may elude the successful passage of the resolution by a majority of not less than 2/3rdof the total membership of the RajyaSabha; but resistance through parliamentary route should be tried rather than surrendering to the might of majoritarianism right at the outset. This effort would be in addition to the judicial challenge in the Supreme Court of India; the number of public mass protests which have taken place; the pressure from United Nations and western countries and most importantly the resistance of the people of Kashmir. The process of impeachment has necessarily to begin from RajyaSabha where the first requirement of sixty MPs signing the resolution can be met. Then a full-fledged discussion follows; now that the opposition MPs have got a breathing space since the events of 5th August, 2019 onwards and that many of them shared a platform on 22ndAugust, 2019 at national protest site, JantarMantar, New Delhi, minimalist unity should be utilized to its maximum. This action of initiating impeachment proceedings will consolidate the opposition unity – action and work unites; ideology divides.

The discussion in RajyaSabha is bound to get reported widely since it would be the first time that impeachment of an Indian President would be taking place. The powers that be would be put in a defensive mode albeit for a while. At the end of the discussion in RajyaSabha voting is likely to go in favour of the ruling party; but this is no reason why even this resistance should not be put. Procedurally the issue would move to the LokSabha(House of the People) only if two-thirds of MPs in RajyaSabha vote in favour of impeachment. The other House, LokSabha, can then investigate the charge or cause the charge to be investigated. Even if defeated in RajyaSabha it acts as a major moral comment against the President of India i.e. no President is above the law.

Recent political developments have emboldened the opposition parties. The Shiv Sena has severed its ties with BJP. A coalition government in Haryana, too, is a climb down for BJP. The December 5 by-polls in Karnataka for 15 Assembly constituencies is predicted to be a dampener for the BJP. In Jharkhand the BJP is facing alliance trouble ahead of the Assembly polls. The allies of the saffron party are reportedly deserting the “sinking ship.”

Meanwhile the RajyaSabha is holding its 250th Session w.e.f. 18 November, 2019.Also 26 November is observed as the Constitution Day (National Law Day) every year to commemorate the adoption of the Constitution of India. Internationally our Prime Minister’s friend Donald Trump is facing impeachment proceedings. Initiating impeachment process would be the best tribute to the framers of the Constitution of India and People of Kashmir.

[Also See: The Presidential Orders That Felled A State; Writ Petitions Challenging This Fraud On The Indian Constitution; Praying Justice For Kashmiris].

Dr. P. S. Sahni is a member of PIL Watch Group. His contact email is: pilwatchgroup@gmail.com

Also at: https://countercurrents.org/2019/11/opposition-mps-could-try-to-impeach-the-president-of-india-for-his-executive-orders-of-5th-6th-august-2019-regarding-kashmir

National Campaign For ‘Fearless India; India For All’ – Mass Demonstration By Over 500 Muslims At Jantar Mantar

by Dr P S Sahni — September 26, 2019

A powerful mass demonstration was held on 25th September, 2019 from 11 a.m. to 2.15 p.m. by over 500 Muslims at the national protest site, JantarMantar, New Delhi. With a large banner indicating a national protest, it was attended by Muslims from Kerala, Tamil Nadu, Delhi, Uttar Pradesh, Rajasthan, Punjab, Haryana, Assam, Jharkhand and Maharashtra. On the dais were seated members of Parliament – IUML LokSabha MP, E T Mohammad Basheer representing Ponnani constituency in Kerala; Malppuram LokSabha MP, P.K. Kunhalikutty; IUML President, K. M. Kader Mohideen. MLAs from state assemblies like Tamil Nadu; and state level IUML party functionaries; family members of victims of mob lynching;Shweta Bhatt wife of Sanjiv Bhatt, sentenced to life imprisonment;ShaistaParveen (widow of Tabrez Ansari who was lynched by a mob in Jharkhand) with her mother Shahnaz Begum;lawyers who fought these cases. The protest was organized under the banner of Indian Union of Muslim League (IUML). There were 40 leaders – big and small – including family members of victims of injustice seated on the dais as also victims of National Register of Citizens (NRC) in Assam. Women, children and youth participated in protest as also a few who were physically challenged.

The messages on the placards were written in five languages – Malayalam, Tamil, Urdu, English and Hindi; the messages urged for a democratic, constitutional, secular, socialist India.

• Save Kashmir
• Justice for Junaid
• We won’t let Hindustan become Lynchistan
• No more Kathua; No more Unnao
• Democracy not mobocracy; Stop mob lynching
• Youth seek jobs; Modi seeks jokes
• Farmers first; not corporates
• People first, profit last
• We want answers on economy
• Release Sanjiv Bhatt
• Respect multiculturalism; Uphold federalism
• Save Constitution; Save minorities

Shweta Bhatt recalled:

“My husband supported minorities as an IPS officer during the 2002 riots in Gujarat. He is an honest and straight forward person. I am struggling for the last one year, fighting a legal battle to secure bail for him. Today as I speak here there is a hearing in an Ahmedabad court for one of the two cases filed against him which are 25 and 30 years old. There is no evidence against him; the cases were filed on a private complaint. His only fault was that he gave evidence of what truly happened during the 2002 riots.”

Overcoming her emotions she said:

“I feel this dark period will not last long. I would support whenever I am invited.”

Shaista Parveen wife of Tabrez Ansari recounted how her husband was lynched in Jharkhand within days of her marriage:

“The mehendi (henna) on my hands had not even paled away when the killing took place. I have even approached the Supreme Court. If no justice is done, I will be forced to commit suicide, the blame for which will fall on the judiciary and the government. Modiji please get me justice.”

JantarMantar reverberated with the following slogans raised in Urdu/Hindi :

• Hindustan zindabad
• Awaaz do hum ekhai
• Sansadmargzindabad
• Tanashahinahinchalegi
• Seenagorinahinchalegi
• Dekhokahengey hum; izzat se jeyenge hum
• Bheedhatya band karo
• Musalmanokomarna band karo
• Kashmir bhihamarahai, Kashmiri bhihamarehai
• Modi Sarkarhosh me aao
• Modi Sarkar murdabad

Most of the 15 odd speakers invoked the Constitution of India or recited Urdu poetry/ shairi to give vent to their feelings:

• India belongs to all communities not just to one
• We Muslims will live and die in India
• BJP government is putting us under test
• We will fight for our legal rights and will succeed
• Stop insulting Dalits
• This country does not belong to Bajrang Dal, RSS; but to all of us
• Eyes of people are being snatched and spectacles given as charity
• Our aim is to get justice for victims of atrocities committed on Dalits, Muslims, Adivasis by Modi government
• We want our rights; we shall get these. We are not afraid of anyone; we will defend Ambedkar’s Constitution – which gives rights to all people.
• This protest is to strengthen secularism.
• The country shall be in ruins – events point towards this.
• There is turmoil in Assam; both Hindus and Muslims are affected; Kashmiris are facing hunger and thirst.
• There is injustice on Dalits by upper castes.
• We speak about 125 crore Indians.
• We got betrayal in the name of development.
• GDP is down to 5%.
• Even today a Dalit’s corpse is not allowed to be taken to the cremation grounds through the lanes of upper caste residents’ colony.
• Through democratic means people will remove this government.
• Dalits, Muslims are under attack; one man is surrounded by 10 people and killed; while the law laughs away.
• Mulklut jayega, asaarnazaraatey hein.
• Sārejahāṉ se acchā, Hindositāṉ hamārā; Ham bulbuleṉ haiṉ is kī, yihgulsitāṉ hamārā. While Muhammad Iqbal had visualized a rose garden, now India is being converted to a forest.
• Mahatma Gandhi’s ‘Ishwar, Allah teronaam’ is being lost sight of.
• Kya poochte ho haal mere karobarka; Aainebechtahoonandhonkeshaharmein.
• Muslims made sacrifices for this country and for its boundaries; they helped draft Constitution in the Constituent Assembly.
• First tell us who is the faithful, Time will tell who is the traitor
• The slogan on the huge banner – Fearless India, India for all – reflects the challenges we are facing; this government is reverting India back to a dark age; there is no respect for the Constitution; there is mockery of Parliament; also government interference with judiciary is prevalent; muzzling of media is rampant, news from Kashmir is of blood and tears; an attempt to have one nation with one language, culture and religion is in process.
• We are fighting for Sanjiv Bhatt and are in solidarity with his wife Shweta Bhatt.

Future course of action of IUML

Actions and campaign were planned for all over India; IUML decided to associate with minorities and like-minded secular parties, try for a joint platform and send a team to Assam to study the problem and later inform the Parliament. It was decided to resist the process of extending NRC outside Assam.

At the end of the protest all participants were requested to come near the stage and a small prayer was recited for the welfare of all the citizens of India.

As I left the protest site at 2.15 p.m. lunch packets were being distributed for everyone. I recalled Morarji Desai’s campaign after the Emergency was lifted in 1977; he urged all Indians to shed fear and vote fearlessly, which led to Mrs Gandhi’s dislodgement from power. Today the theme of the protest itself captures the same sentiments.

Dr. P. S. Sahni is a member of PIL Watch Group. Email: pilwatchgroup@gmail.com. Image Courtesy: IUML Facebook

Also At: https://countercurrents.org/2019/09/national-campaign-for-fearless-india-india-for-all-mass-demonstration-by-over-500-muslims-at-jantar-mantar

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)

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

by Shobha Aggarwal

sacw.net - 6 September 2019

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. 1013/2019	Manohar 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. 1104/2019	Muzzafar 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

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

Shobha Aggarwal — September 2, 2019

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:

5. Presidential Order O. 272 dated 05.08.2019
6. 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. 1013/2019	Manohar 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. 1104/2019	Muzzafar 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?

Also At: https://countercurrents.org/2019/09/the-presidential-orders-that-felled-a-state-writ-petitions-challenging-this-fraud-on-the-indian-constitution-praying-justice-for-kashmiris

Love For My Country Transcends Bangladesh, Pakistan, Nay The Whole world!

Dr P S Sahni — August 27, 2019

Tsunami of aggressive nationalism

Across USA, Europe and beyond

Internationalism is my creed; patriotism acceptable

But not the sedition law

My ancestors born in Pakistan

Part of undivided India

Communal partitioning in 1947

Affected lives

My mother born in 1921

At Suri Mohalla, Rawalpindi

Completed her studies

At middle school, Rawalpindi

At school she learnt needle work

Hygiene, domestic science, cooking

Practical physiology, arithmetic, laundry

Three languages, history, geography

My father born in 1914

In village Amar Kalan, Gujrawalan

Studied at Dayal Singh College, Lahore

After B.A. headed Delhi

Job obtained, came marriage proposal

From a slim, sharp featured girl

Exchange of Rs. 5 and sweets

Sealed their future at Montgomery

Father earned rupees thirty-five per month

At Viceroy’s Office

Household expenses got managed

Courtesy mother’s skills honed at school

Nanak’s Sufism helped too

Nanak born in 1469

In Nankana Saheb

Founded Sikhism

Russian revolution and Lenin inspired revolutionaries

Sukhdev, Rajguru, Bhagat Singh

Hanged by British in 1931

At Shadman Chowk, Lahore

In 1762 Sikhs occupied

Abdullah Khan Masjid, Lahore

Built Gurudwara housing priests

In the mosque building

When Muslims filed cases for recovery

Courts under British rule

Maintained status quo

Denied justice, Muslims got no relief

In 1935 Sikhs demolished the Mosque

Bombay High Court ruled in 1940

Building was indeed a mosque

But Limitation Law merited its use as Gurudwara!

The upheaval of 1947

When Muslim neighbours escorted safely

My ancestors to military vans

On journey to India

Coming from different parts of Pakistan

My ancestors, relatives got scattered in India

To Delhi, Punjab including present day Haryana

And Jammu & Kashmir!

My aunt hailing from J & K

Taught us love for all living beings

Often times I would see her

‘Talk’ to house sparrows and hens

In 1971 Bangladesh was born

We left Delhi

As part of medicos team

To render services

Medical camp based in

Village Matikunda, Uttar Dinazpur, West Bengal

Having eighty thousand refugees – Hindus, Muslims

Their plight similar to those of 1947

At St. Columba’s school, New Delhi

I studied for eleven years

Christian Brothers inculcated: Love thy neighbor

Can one go against their teachings?

Babri Masjid demolished in 1992

Resulted in widespread violence

We worked amongst victims

At Janta Mazdoor Colony, Seelampur, Delhi

A dispensary based in Hanif’s house

Abid and his ammi ever helpful

Child Noori bringing home-made tea

Bashir Chacha’s wisdom guiding us all

In struggle for their rights

Our brush with Marxism goaded us

To launch dharnas and rallies

Braving police brutalities

Globally forces of reaction bull-dozing people

To hate other countries

Were I to falter for a moment

I’d become a living corpse.

[Endnote: My classmates of 1969 batch for MBBS course at Maulana Azad Medical College, New Delhi nicknamed the eight of us – who worked at refugee camps in Bengal – as “Bangladeshis”. Even fifty years later if an old friend spots me on the streets of Delhi he/she would use the tag “Bangladeshi”! For me this is recognition one would aspire for in such troubled times when Bangladeshi migrants are being hunted and hounded in India.]

Also At: https://countercurrents.org/2019/08/love-for-my-country-transcends-bangladesh-pakistan-nay-the-whole-world

Most Major Opposition Parties Demonstrate At New Delhi In Support of Kashmiris; Protest Reminiscent of J.P.’s 25 June, 1975 Rally

On 22 August, 2019 leaders of most major opposition parties demonstrated at the national protest site, JantarMantar, New Delhi, India from 11 a.m. to 1.15 p.m. The all party demonstration was organized to urge immediate release of leaders detained in J & K; to save democracy and to protect human rights. The call for this action was given by the DMK President, M.K. Stalin. Supporters of DMK from Delhi joined in large numbers.

While the attendance at the protest was in hundreds the body language of the opposition leaders; the tone and tenor of their speeches and statements; the stingingly sharp criticism of Modi Government’s action on Kashmir; no mincing of words;the political ambience of the meeting; the electrifying environment created by the playing of a Tamil song with lilting tunes at the start of the function – all sum up the mood at the gathering. The pain, anguish and outrage at the August 5 decision of the Modi government was all too discernible. The protest was attended by leaders of DMK, Congress (I), CPI, CPI (M), Indian Union of Muslim League, Samajwadi Party, National Conference, Trinamool Congress, RashtriyaJanta Dal, LoktantrikJanata Dal. Shehla Rashid of J & K Peoples’ Movement was also present.

Before the leader addressed the gathering the following slogans were raised repeatedly for a few minutes:

• Release the political leaders detained in J & K immediately
• Resume telecom services in the valley
• Restore democracy in J & K
• Restore normalcy in J & K

The message in the slogans formed the resolution adopted at the protest.

The sixteen odd leaders spoke in Tamil/Hindi/English and stressed:

• “Our (National Conference) leaders don’t know why they have been arrested. I will return to Kashmir and inform the people that so many supporters are there in India willing to extend hand-in-hand support.”[National Conference representative]
• “Promises were made to Kashmiris by our ancestors who fought for India’s freedom; those in power today appear to be fighting those very freedom fighters through their action in Kashmir … Kashmir has become an open air prison.” [SharadYadav]
• “Please tell us what is the crime they have committed that they are behind bars, it is our right to know.” [Dinesh Trivedi]
• “Country’s unity cannot be maintained with a bandook (gun) and the army. BJP’s action in Kashmir is antinational.” [Brinda Karat]
• “Time to hold each other’s’ hand. If we are silent today – doomsday awaits us. We voted against the government in Parliament.” [RJD]
• “We condemn what is happening. Abrogation of Article 370 is undemocratic, unconstitutional and an assault on democracy. There is a sininster attempt to push through RSS agenda of Hindu Rashtra. There is curfew all over; jails are full in J & K. We should reach out to people of J & K; call for nationwide protests.” [D. Raja]
• “Media is muzzled; does not have access in J & K; jails in U.P. are being used to house Kashmiris arrested in the valley; this is a dangerous situation.” [Ram GopalYadav]
• “Mulkka, kaumkaitanabheenamiyaargire, kisurkhiyaandekhateheehaath se akhabaargire…

With the start of the 2nd term of the government a reign of dictatorship has started. Today the struggle against dictatorship has also started.” [Manish Tewari]

• “Government’s swoop down in Kashmir seizing J & K through military take over; the Constitution has been manipulated to pave the way for a Hindu Rashtra.” [SitaramYechury]
• “We (DMK) have a national outlook; steps in whenever constitutional norms are in danger.”[DMK representative]
• “Something grave is happening in J & K. Only international media knows it. Indian media is covering Kashmir but the telecast is not being allowed. We are no longer living in democracy.” [GhulamNabi Azad]

Placards carrying the following messages (in Hindi, English and Tamil) were displayed:

• Release all political leaders, workers and ordinary people arrested in Kashmir.
• BJP-RSS-NDA Government stop assaults on the Indian Constitution.
• Stop assaults on rights of people in J & K.

Dozens of workers, members of CPI (ML) New Democracy came out in support carrying placards with messages:

• Do not trample federal structure
• Restore democratic rights of people of J & K
• Restore Article 370.

Some Delhi based, non-party political activists also joined the protest in solidarity. As we walked away after the protest was over, one of us – who had attended J.P.’s rally of 25th June, 1975 – commented that though J.P.’s rally was attended by around a lakh of people at RamlilaMaidan, Delhi the political message sent out by today’s protest is as loud and clear as it was then in 1975!

(Dr. P.S. Sahni & Shobha Aggarwal are members of PIL Watch Group. Email: pilwatchgroup@gmail.com)