Use of PSA in 2009
http://www.gaash-online.com/articles/176/1/Use-of-PSA-in-2009.html
Dr. Syed Nazir Gilani
Dr. Syed Nazir Gilani is a jurist. He is secretary general of JKCHR-NGO in special consultative status with the United Nations. He is an expert in Peace Keeping/Humanitarian Operations and Election Monitoring Missions. By Dr. Syed Nazir Gilani
Published on 07/29/2009
People and politics of Kashmir have moved from 24 September 1931 when Maharaja promulgated a notification prescribing the arrest of 'turbulent' people to "suppress disorder and restore and maintain law and order". Maharaja failed to barricade the popular anger and withdrew the earlier notification on 5 October 1931. It remained in force for only a few days. People's Rights Movement graduated through many successes, to the point that the Government of Kashmir exercised its sovereignty and addressed two bilateral agreements to India and Pakistan.
Use of PSA in 2009
People and politics of Kashmir have moved from 24 September 1931 when Maharaja promulgated a notification prescribing the arrest of 'turbulent' people to "suppress disorder and restore and maintain law and order". Maharaja failed to barricade the popular anger and withdrew the earlier notification on 5 October 1931. It remained in force for only a few days. People's Rights Movement graduated through many successes, to the point that the Government of Kashmir exercised its sovereignty and addressed two bilateral agreements to India and Pakistan.
Indian civil society too has moved since 1931 into independence and the benefits of rule of law. The character and quality of politics in non-Independent India needs to be revived by the leaders of Independent India in their dealings in Kashmir today. Congress in May 1946 engaged Barrister Asif Ali to conduct the defence of Sheikh Mohammad Abdullah and of other National Conference leaders arrested and charged with sedition by the Maharaja Government.
Congress leader and famous Barrister Asif Ali while conducting the defence argued that "the main question in this case is whether it is right of a people to demand responsible Government even in emphatic terms if necessary". He asked, "Is it a crime to say that the basis of the Government of this State should be the will of the people and not a treaty which is 100 years old and which is impugnable in the highest international court of justice"?
One is disappointed to find the Indian political character failing in fact and in merit in Kashmir. Arresting the political leaders for their expressed political opinions under Public Safety Act is in no manner different than resurrecting the Maharaja's repressive regime to arrest 'turbulent' people to "suppress disorder and restore and maintain law and order". One may disagree with the political opinions expressed by Syed Ali Shah Geelani, Shabir Ahmad Shah and others held under PSA but there is no scope to muzzle a non violent opinion through arrests under PSA.
It is for the people to examine the inclusive character of a political opinion and accept or reject it. It is important for the leader to embed in his political belief the plural character of the civil society and the best interest of the people. The political call should be inclusive, non communal and non-discriminatory. It should have its roots in the territories of Jammu and Kashmir as defined under section 4 of the Jammu and Kashmir Constitution.
The arrest of elderly leader Syed Ali Shah Geelani under PSA and the details of the offences listed in 8 cases activated against him do not make a credible case in a civilised society. There may be genuine issues with his understanding of Kashmir case and the jurisprudence of self-determination, yet him being at variance with a conformist main stream or other political practice does not make him an offender.
He is a State Subject and the J & K Constitution, the Indian Constitution and the UN Resolutions, in all authority and fairness have guaranteed him liberty, freedom of assembly and freedom of expression. If the State Government fails to do "right to all manner of people in accordance with the Constitution and the law, without fear or favour, affection or ill-will", it is imperative that the Constitution of India and the UN Resolutions intervene within the jurisprudence caused by the provisional accession, Government of India's case of 01 January 1948, her submissions before the Security Council and the jurisprudence of UN mechanism on Kashmir.
One may have a serious issue with the reliability of Geelani Sahib's understanding of the Kashmir case, in particular, when one finds that that he has failed to address the question of the distribution of the people and territories of the State and has failed to address the question of a plural society. He does not seem to have given a due consideration to the deficit of number caused in the cause of self-determination.
The loss of a generation is a serious numerical deficit for any numerical count during self-determination. The fact that Right to Life precedes any other human right has not been convincingly agitated by his school of politics. This constitutes a serious failing in the political wisdom of his camp but it does not make him a subject of any cognizable offences as listed in the 8 cases brought against him.
The State and the Indian Government need to revisit the wisdom of political character of non-Independent India in May 1946. Indian wisdom has to address the political school of Syed Ali Shah Geelani and of others first by detaching a State Subject from the sovereign interest of the Government of Pakistan and at the same time by causing itself to honour the rule of law. The decision of the State Government to resort to an administrative convenience by activating 8 cases against Syed Ali Shah Geelani is fraught with many dangers. As a start it does not ambassador the cause of rule of law or the Indian interest in Kashmir. It will cause more trouble than calm any irritation.
The State Government has to bear in mind that it represents only 'part of the whole territory of Jammu and Kashmir' in its legislature. Sections 4 and 48 of the Constitution cause serious infirmity in its representative character. Therefore, its record of human rights and its failure to do "right to all manner of people in accordance with the Constitution and the law, without fear or favour, affection or ill-will", would be a matter of legitimate interest for Kashmiris living in Azad Kashmir, Gilgit and Baltistan and the Diaspora.
The State Government, in particular National Conference, has been put on notice by the UN Security Council in its Resolution 91 (1951) of 30 March 1951, that "any action that assembly might attempt to take to determine the future shape and affiliation of the entire State or any part thereof would not constitute a disposition of the State in accordance with the principle... that the future of the State of Jammu and Kashmir shall be decided through the democratic method of a free and impartial plebiscite conducted under the auspices of the United Nations".
The charges listed in the first case that "Geelani and others delivered speeches on Friday prayers which were inflammatory in nature, anti-national and were supportive of subversive activities. Geelani motivated youth to start war against State Government" prima facie don't add up to an offence in the habitat of Kashmir. The authors of the charge that he "addressed people assembled at Jehangir Chowk and delivered speech against Indian constitution, which disturbed peace and especially impressed upon the youth to keep on their struggle for Freedom", need to be sent to crash course to be able to understand, that addressing a people who have assembled out of their free will, questioning a Government for its failure to honour guarantees provided in the Constitution in public or in a Court of law and urging youth to "keep up their struggle for Freedom" do not constitute any offence.
If one goes by the merits of this prescription it makes the statement of chief justice of J and K High Court Mr. Justice Barin Ghosh a cognizable offence. He commended the people of Shopian for their "resilience and peaceful agitation." While assuring the people that the culprits responsible for the heinous crime would be brought to justice, he said, "You have suffered a lot and we don't want you to suffer more." "The entire nation is with you. You have been peaceful. It is because of you that the case has progressed to this level," the chief justice told the members of Majlis Mushawarat, who were present in the court during the hearing. Articulating the grievances of a people does not constitute an offence.
The mala fides of Kashmir administration and in particular some sections of Kashmir police are at war with the Constitution of India, than the details of the case made out against Syed Ali Shah Geelani. Law enforcing agencies seem to have lost credibility and public faith. They seem to be at war with their duty to fairness as well. The present coalition Government has a lot to learn from the political character and respect for human rights that was shown by the leadership of non-Independent India in May 1946 during their defence of Kashmiri leadership.
Slapping PSA for an administrative convenience and reverting back to Mahraja's regime of 24 September 1931 has passed its sell by date. Free will of the people is the basis of good governance today. It is time that May 1946 political character of Indian leadership travels to Kashmir to listen to a people who do not want to remain distributed and live under five constitutions and five governments. It is not the question of accession but their title to self-determination which is in dispute. It is in no way a question of Muslims of Kashmir but a quest for a dignified future of all State Subjects.
Indian civil society too has moved since 1931 into independence and the benefits of rule of law. The character and quality of politics in non-Independent India needs to be revived by the leaders of Independent India in their dealings in Kashmir today. Congress in May 1946 engaged Barrister Asif Ali to conduct the defence of Sheikh Mohammad Abdullah and of other National Conference leaders arrested and charged with sedition by the Maharaja Government.
Congress leader and famous Barrister Asif Ali while conducting the defence argued that "the main question in this case is whether it is right of a people to demand responsible Government even in emphatic terms if necessary". He asked, "Is it a crime to say that the basis of the Government of this State should be the will of the people and not a treaty which is 100 years old and which is impugnable in the highest international court of justice"?
One is disappointed to find the Indian political character failing in fact and in merit in Kashmir. Arresting the political leaders for their expressed political opinions under Public Safety Act is in no manner different than resurrecting the Maharaja's repressive regime to arrest 'turbulent' people to "suppress disorder and restore and maintain law and order". One may disagree with the political opinions expressed by Syed Ali Shah Geelani, Shabir Ahmad Shah and others held under PSA but there is no scope to muzzle a non violent opinion through arrests under PSA.
It is for the people to examine the inclusive character of a political opinion and accept or reject it. It is important for the leader to embed in his political belief the plural character of the civil society and the best interest of the people. The political call should be inclusive, non communal and non-discriminatory. It should have its roots in the territories of Jammu and Kashmir as defined under section 4 of the Jammu and Kashmir Constitution.
The arrest of elderly leader Syed Ali Shah Geelani under PSA and the details of the offences listed in 8 cases activated against him do not make a credible case in a civilised society. There may be genuine issues with his understanding of Kashmir case and the jurisprudence of self-determination, yet him being at variance with a conformist main stream or other political practice does not make him an offender.
He is a State Subject and the J & K Constitution, the Indian Constitution and the UN Resolutions, in all authority and fairness have guaranteed him liberty, freedom of assembly and freedom of expression. If the State Government fails to do "right to all manner of people in accordance with the Constitution and the law, without fear or favour, affection or ill-will", it is imperative that the Constitution of India and the UN Resolutions intervene within the jurisprudence caused by the provisional accession, Government of India's case of 01 January 1948, her submissions before the Security Council and the jurisprudence of UN mechanism on Kashmir.
One may have a serious issue with the reliability of Geelani Sahib's understanding of the Kashmir case, in particular, when one finds that that he has failed to address the question of the distribution of the people and territories of the State and has failed to address the question of a plural society. He does not seem to have given a due consideration to the deficit of number caused in the cause of self-determination.
The loss of a generation is a serious numerical deficit for any numerical count during self-determination. The fact that Right to Life precedes any other human right has not been convincingly agitated by his school of politics. This constitutes a serious failing in the political wisdom of his camp but it does not make him a subject of any cognizable offences as listed in the 8 cases brought against him.
The State and the Indian Government need to revisit the wisdom of political character of non-Independent India in May 1946. Indian wisdom has to address the political school of Syed Ali Shah Geelani and of others first by detaching a State Subject from the sovereign interest of the Government of Pakistan and at the same time by causing itself to honour the rule of law. The decision of the State Government to resort to an administrative convenience by activating 8 cases against Syed Ali Shah Geelani is fraught with many dangers. As a start it does not ambassador the cause of rule of law or the Indian interest in Kashmir. It will cause more trouble than calm any irritation.
The State Government has to bear in mind that it represents only 'part of the whole territory of Jammu and Kashmir' in its legislature. Sections 4 and 48 of the Constitution cause serious infirmity in its representative character. Therefore, its record of human rights and its failure to do "right to all manner of people in accordance with the Constitution and the law, without fear or favour, affection or ill-will", would be a matter of legitimate interest for Kashmiris living in Azad Kashmir, Gilgit and Baltistan and the Diaspora.
The State Government, in particular National Conference, has been put on notice by the UN Security Council in its Resolution 91 (1951) of 30 March 1951, that "any action that assembly might attempt to take to determine the future shape and affiliation of the entire State or any part thereof would not constitute a disposition of the State in accordance with the principle... that the future of the State of Jammu and Kashmir shall be decided through the democratic method of a free and impartial plebiscite conducted under the auspices of the United Nations".
The charges listed in the first case that "Geelani and others delivered speeches on Friday prayers which were inflammatory in nature, anti-national and were supportive of subversive activities. Geelani motivated youth to start war against State Government" prima facie don't add up to an offence in the habitat of Kashmir. The authors of the charge that he "addressed people assembled at Jehangir Chowk and delivered speech against Indian constitution, which disturbed peace and especially impressed upon the youth to keep on their struggle for Freedom", need to be sent to crash course to be able to understand, that addressing a people who have assembled out of their free will, questioning a Government for its failure to honour guarantees provided in the Constitution in public or in a Court of law and urging youth to "keep up their struggle for Freedom" do not constitute any offence.
If one goes by the merits of this prescription it makes the statement of chief justice of J and K High Court Mr. Justice Barin Ghosh a cognizable offence. He commended the people of Shopian for their "resilience and peaceful agitation." While assuring the people that the culprits responsible for the heinous crime would be brought to justice, he said, "You have suffered a lot and we don't want you to suffer more." "The entire nation is with you. You have been peaceful. It is because of you that the case has progressed to this level," the chief justice told the members of Majlis Mushawarat, who were present in the court during the hearing. Articulating the grievances of a people does not constitute an offence.
The mala fides of Kashmir administration and in particular some sections of Kashmir police are at war with the Constitution of India, than the details of the case made out against Syed Ali Shah Geelani. Law enforcing agencies seem to have lost credibility and public faith. They seem to be at war with their duty to fairness as well. The present coalition Government has a lot to learn from the political character and respect for human rights that was shown by the leadership of non-Independent India in May 1946 during their defence of Kashmiri leadership.
Slapping PSA for an administrative convenience and reverting back to Mahraja's regime of 24 September 1931 has passed its sell by date. Free will of the people is the basis of good governance today. It is time that May 1946 political character of Indian leadership travels to Kashmir to listen to a people who do not want to remain distributed and live under five constitutions and five governments. It is not the question of accession but their title to self-determination which is in dispute. It is in no way a question of Muslims of Kashmir but a quest for a dignified future of all State Subjects.