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| Kashmir - Common and Institutional Wisdom in Tatters |
By Dr. Syed Nazir Gilani |
Published
05/12/2006
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Editorial
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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.
View all articles by Dr. Syed Nazir Gilani
Kashmir - Common and Institutional Wisdom in Tatters
Sabina has lost liberty and her right to a fair trial has been viciously savaged by common and the institutional wisdom of Kashmir.
The misfortune of Sabina marks a new beginning in Jammu and Kashmir. It has created a space for many to brood over the reliability of their common and institutional wisdom. Both wisdoms stand exposed.
Kashmiri leaders who kick dust every afternoon and yell atop that they have nothing to do with the Indian constitution, have expressed a no confidence in the fairness and ability of their own institutions and people living in any of the three administrations of Kashmir to investigate and make facts public.
Mistrusting their own class and clan in the widespread of Jammu and Kashmir our leaders have demanded a CBI enquiry. The CBI is a central subject under the Constitution of India. It will not report to State government but in practice it reports to the Indian Government and not to the individual states. In fact both de facto and de jure our leaders have accepted the supremacy and the fairness of an agency created under the Constitution of India. Whosoever, has invited CBI to investigate the ills domiciled and harboured in Srinagar are now estopped from charging against the suptremacy of the Constitution of India and from doubting the fairness of an institution created under the Indian Constitution.
It also needs to be said for the common benefit of public and special benefit of Kashmiri leaders that CBI would assume jurisdiction in the State and would be free to sub poeane any one from Chief Minister down to a Imam. There is every likelihood that the net of enquiry may spread from politics, police, bureaucracy, mosque, mander, gurdawara and to the man sitting in his shikara.
Hurriet A and Hurriet G and many others who conduct affairs in public interest could be subpoenaed for failing to follow up the first FIR 17/ 2004 dated 14-10-2004 under section 3, 4, 5,7,8 PITA (Prevention of Immoral Trafficking Act) at Maharaj Gunj police station. Elders of Samaj Sudhar Committee of Habba Kadal could also be summoned by CBI team.
Kashmiri leaders need to be reminded on their general knowledge that CBI is the official Interpol unit for India. A director of the CBI, P.C. Sharma, was elected as Vice-President of Interpol in October 2003. Kashmiri leaders request for CBI investigation has further legitimised a recent decision of the State police to seek Interpol interest against Kashmiri militants (some of whom have been named).
Sabina's crime has not been investigated and remains to be proven. But Prima facie a non knowledge of the jurisprudence of Kashmir case and conducting a proposed agenda makes our leaders de facto and dejure unfit for a leadership and causing a harm to the jurisprudence of Rights Movement attracts a criminal liability.
The concept that one should not examine the conduct of Judiciary or a judge is obsolete. A Judge is a public document. 'The prime duty of a judge as an individual is to present before the public an image of the justice of the nation. As a member of his court, that duty is brought within the discipline appropriate to a corporate body.' There is a difference between a judge, an arbitrator and a referee.
The High Court in Kashmir has issued notices on Wednesday 10 May to Chief Secretary and Director General of Police, seeking their personal appearances on May 12 to explain as to what action government has taken in the matter so far.
The Chief Secretary, the court directed, should inform the court whether the government has referred the matter to CBI and if so what progress it has made thereafter.
The court directed the DGP that in his reply he should indicate number of cases registered in the matter and the progress of investigation.
The single bench of Justice Hakeem Imtiyaz issued notices to both the officials on suo-motto proceeding initiated by Justice Bashir A Kirmani, and ordered them to be present in person before it on May 12 when the matter will come up for hearing.
High Court notice de jure endorses the Constitutional role of CBI in Jammu and Kashmir. One is yet to see how the grand priest of Jamia masjid holds his wits to label High Court - a pro Hurriyat institution or a 'main stream' judicial institution advocating a case for India. NC, Congress, PDP and other schools of politics advocate a political wisdom in a manner of their free choice.
In the same manner High Court has given a 'judicial call' in line with a famous maxim that "Law, with all its weaknesses, is all that stands between civilization and barbarism". Hurriyat has a moral and common sense dilemma to reconcile here.
In view of time and a wide spread of motives High Court has rightly decided to club the KHCBA PIL 20/06 with Justice B A Kirmani's suo moto cognizance of media reports about the sex scandal. KHCBA has also referred to its PIL writ which it had filed in 2004. KHCBA has a legal right and the substance of the PIL increments a follow up in their own right as well. But it is again surprising that that their second PIL makes a reference to CBI which further has caused a jurisprudence of recognition of the Constitution of India. KHCBA has rendered itself open to be summoned and sub poeaned by CBI.
It is very interesting that the members of Bar Association protested against the Court decision to club the suo moto cause with the PIL of KHCBA. They stayed away from court today. A lawyer cannot cause a prejudice to the interests of his 'client' and at the same time the modern judicial wisdom does not support a boycott of a court. If the common cause is 'justice' and a 'justice to be seen', then of course pursuing two individual courses would have caused confusion, duplication and delay. An inter-dependence between Bar and Bench is more authoritative and assuring.
KHCBA has gone the unusual way to discuss law and jurisprudence in the city centre at Lal Chowk. It does not sit well with the wisdom and attire of a jurist, if at all any one of them is a jurist. It is a cheap habit of holding a 'snooker cue' - a post 1990 fashion to be counted in the sweet bee-hive. The PIL is still sub judice. Therefore a demand to make names of the persons involved in the sex racket public at this point is alien to any legal reasoning or a common sense. The accused have a right to defend themselves. KHCBA seems to have muddled up the merits of their 'prayer' in PIL. A demand to abolish Public Prostitution Rule 192 at this point and in these circumstances, does not augur well for a speedy justice. The two issues need to be traded and argued in legal wisdom differently.
We sympathise with KHCBA and commend their services. However, it needs to be pointed out that police would listen to their notice only when KHCBA remains an independent and a prestigious State institution and does not append itself to Hurriyat A or Hurriyat G or a pro Independence or any N/A group. KHCBA has invoked their access under Right to Information Act. It is sad that their right has been dishonoured. I as a member of legal fraternity would ask them, are they themselves, a free and democratic body, ready and able to negotiate a dialogue or face up to a dissenting view? If KHCBA does not stand up to high standards of a duty to fairness - there is no reason for us to stop police from taking a poorly 'dip' against the law.
I am intrigued to read a quote from a senior counsel and former Bar Association president Zaffar Ahmad Shah. He has defined the PIL as
"The PIL is a litigation when a person activates jurisdiction of the court in a case in which he has no personal interest and he has not complained of infringement of any of his rights," Shah said. He said that PIL is always filed when government fails to discharge its constitutional and legal duty.
Former Bar president has very wisely agitated the duty and writ of the government. KHCBA is a constituent of Hurriyat and Hurriyat does not accord any credence and legitimacy to elections and the government, thus constituted. As long as KHCBA members keep their private gaze fixed on a trip to Geneva, a hand in Hurriyat Delhi office or a visit abroad, legal wisdom in Jammu and Kashmir would be as helpless as 'Sabina' or the drugged class 10 school girl. If KHCBA has been out and out to berate the judicial wisdom and the 'special attire' why should it cry wolf that - "If there is involvement of police, bureaucrats and politicians then you have to look at the issue in different angle. It might be deeper conspiracy to humiliate us as a nation,".
I would suggest that KHCBA at least in this case, should learn from Dukhtaran-e-Millat chief Asiya Andrabi who has questioned the credibility of the Central Bureau of Investigation (CBI), and for a 'result-oriented probe' has demanded a High Court probe' and has asked for a special investigation team to probe the sex-abuse scandal." At least she has an intuitive understanding of jurisprudence of this invitation.
Now we are likely to have a twelve (12) member team of CBI, headed by an officer of DIG rank in Srinagar on Thursday. These 12 people are men of high calibre and their merit is their roller skate. One would sincerely hope that they unload as much 'transparency' 'accountability' 'rigorous questioning' and walk in every direction and discipline of life, that history that would shape after their findings become public - lists them as men of integrity.
Meanwhile, Sabina, 15 year old school drop out and class 10 drugged school girl have to be treated innocent and tributaries of composite sin have to be hunted. CBI team is a constitutional body - far remote from the elders of Samaj Sudhar Committee of Habba Kadal or members of KHCBA.
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