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Sham Trial by Indian Supreme Court

Sham Trial by Indian Supreme Court

On 5th August, 2019, the Indian government revoked Articles 370 and 35A of the constitution of India’s. These articles pertained to the special privileges given to Indian Illegally Occupied Jammu and Kashmir (IIOJK).  Over thirty petitions were filed in the Supreme Court of India, challenging the government’s actions.  Hearing of these petitions was held in abeyance for over four years.  To give electoral benefit to the Bharatiya Janata Party (BJP) government, a Constitution Bench headed by the Chief Justice of India (CJI) DY Chandrachud did the fastest hearing of these 35 petitions just in 16 days; and on 5th September, this Kangaroo Courtreserved its judgment on these petitions.Out of 16 days of court proceedings, most of the time was consumed by the defendants, and the petitioners remained under judicial harassment.

A National Conference leader Muhammad Akbar Khan, who is a petitioner, was asked to “file an affidavit swearing allegiance to the Constitution of India and accepting the country’s sovereignty unconditionally”. Constitution of India, minus Articles 370 and 35A, declares IIOJK as an integral part of India and under itsapplicationentirely.The petitions state that IIOJK has a special political status, whereby complete constitution of India is not applicable toIIOJK.Indeed, Indian Supreme Court is well on its way to complete a sham trial, and is expected to give a verdict much like Babri Masjid ruling. Some of coercive actions observed during the trial remind of Nuremberg trials.

Article 370 of the Indian Constitution gave special status to IIOJKthat embodied six special provisions: It exempted the State from the complete applicability of the Constitution of India. The IIOJK was conferred the power to have its own constitution and central legislative powers over the state were limited to three subjects of defence, foreign affairs and communications.Additional constitutional powers of the Central Government could be made applicable to the state only with the concurrence of the State Government.However, once the State Constituent Assembly finalised the scheme of powers and dispersed, no further extension of powers was possible; Article 370 could be abrogated or amended only upon the recommendation of the State’s Constituent Assembly. Article 370 conferred on the State of Jammu and Kashmir to have a separate constitution, a state flag, and autonomy of internal administration.

Article 35A of Indian Constitution had empowered the state legislature to define who were permanent residents of IIOJK, and their privileges.  As per this article, a permanent resident was anyone who was a state subject on 14 May 1954 or who has been a resident of the state for 10 years and had “lawfully acquired immovable property in the sate”. In addition, it also clearly defined which privileges could not be granted to non-permanent residents;a non-permanent resident could not: own property; obtain a state government job; and join any educational institute run by the state of IIOK.

Prime Minster Narendra Modi and the Supreme Court of India (SCI) are hand-in-glove in instituting Kashmir gimmicks.  Throughout the proceedings, the CJI was, proverbially, holding the hands of the Attorney General and the Solicitor General and providing them the leads. It appears that the constitutional bench would strike down the abrogation of Article 370 and uphold the abrogation of Article 35A.

To pave the way for this, the CJI, on 29thAugust, opened a line of argument for the Centre that Jammu and Kashmir had been converted into a Union Territory for a “stipulated period”, maybe for the sake of “national security”, and pushed the Indian government for an answer on when it would revert to a full-fledged State. The Union government informed the Supreme Court on31st August that the current status of Jammu and Kashmir as a Union Territory was not permanent, and minus Laddakh, its statehood would be restored, but has declined to give any timeframe.

Article 370 has political connotations while Article 35 has economic implications for the people of IIOJK.CJI is well on the track of delivering a whitewash verdict in line with the wishes of his RSS-BJP string pullers. The mind-set of CJI is to undo Indian government’s revocation of Article 370 while allowing time to hold elections leading to a BJP government,and declare Article 35A, which is actually an empowering Article, against basic rights. The restoration of Article 370, sans Article 35 A, would mean all privileges of IIOJK’s citizen would be snatched and only a notional statehood would be promulgated.

On the diplomatic front, India is portraying a return of normalcy in IIOJK. After holding the events of G-20 in IIOJK that resulted in boycott of the proceedings by five countries, the Indian government has decided to hold the Miss World beauty contest in Srinagar to divert the attention of the international community from the human rights violations.Women from 140 out of 182 countries are participating and its final round will be in IIOJK. However, India’s facade of the normalcyin IIOJK is challenged by the harsh reality that IIOJK remains one of the most militarized zones in the world with extreme curbs on freedom of expression and peaceful assembly of the people.

India finds itself in a tight corner when it comes to human rights assessment in IIOJK. All credible HR watchdogs have repeatedly pointed fingers towards government sponsored atrocities against the people of IIOJK. Lately, European Commission has conveyed it in unequivocal termsthat HR violations in IIOJK are rampant, and the tide has seen a rise since August 5, 2019. And that “systemic and intolerable suppression” of Kashmiris’ basic freedoms and fundamental rights, with loss of innocent lives, is becoming a new normal.

The IIOJK has been the subject of a dispute between India and Pakistan since 1947. Pakistan has always shown openness for dialogue provided New Delhi creates an environment for it. The responsibility for resolving the Kashmir conflict also lies with the international community, particularly the important capitals.Moreover, theUN needs to make a bold course correction byplaying effective role towards resolution of one of the oldest disputes on its agenda, in a responsible manner. The starting point could be the appointment of UN Secretary General’s Special Representative on Kashmir for implementing the UNSC resolutions.

Air Commodore Khalid Iqbal (Retd) is Director National Security at Centre for Aerospace and Security Studies (CASS), Lahore Pakistan. He may be reached at [email protected]

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