Sushil Lalit Pandit: Describe yourself?
Dr. Eshraf Zinulabideen : I carry two citizenship I am a proud secular pro-nationalist Kashmiri by birth and conviction and I am proud Indian as per our JK constitution, as long as India is governed by democratically elected secular Indians ideologies and leaders like Mahatma Gandhi, Bhim Roy Ambedkar, Moulana Azad, Rabinder Nath Tagore, Dr.Karan Singh, Sita Ram Yachury, Sidharamiyah, Dravidian Tamils association , Prakash Singh, Siddramiya. I am proud indian ,but at the same time, I am worried why I am told to prove my nationalism often by those ideologies who killed Mahatma Gandhi. I am same Kashmiri, about whom Mahatma Gandhi said, “ Kashmir is only hope of communal harmony ‘’.
1.Historical distortion propaganda
Sushil Lalit Pandita: Kashmir belong to all Indians, they should be allowed to acquire land in Kashmir, allowed to apply for jobs in state quota. This State subject order is against Indians why are Kashmiri Muslim against Indians?
Dr.Zainulabideen: Pandit Ji, it were your Brahmin forefathers who pressurized and forced the then Maharaja of Kashmir to stop Indian civil servants who were mostly Hindus from being recruited in Kashmir and getting them settled in Kashmir. Since Kashmiri Pandits were dominating the Dogra administration, they were state subjects took hiring of civil servants from India as an attack on their privileges It’s on record that in 1927, hereditary State Subject Order was passed by the Maharaja Hari Singh due to the pressure of the Pandit community which had launched a “Kashmir for the Kashmiri” movement, granted to the state subjects the right to government office and the right to land use and ownership, which were not available to non-state subjects
(Citation -Gupta, Jyoti Bhushan Das- Jammu, and Kashmir. Springer. p. 54. Robinson, Body of Victim, Body of Warrior 2013, pp. 34–35.)
It is proved beyond doubt that your Pandit community leaders were against Indians not Muslim leaders ,in fact Muslim leaders removed word Muslim from Muslim conference and replaced it by National conference so that Kashmir may evolve on democratic secular lines where no elite Brahmin or mullah will dictate terms .it was Sheikh Abdullah a Muslim leader who told his nation that joining secular India is better than the then mullanized Pakistan and we Muslim accepted his call for secular India and refused the separatist call of your Pandit community leader and the then prime minister of JK Mr.Pandit R.C. Kak who was vehemently against accession of Kashmir to India and it is on record to pressurise Maharaja Hari Singh to join Pakistan.
Sushil Lalit Pandita: You are giving me a citation from Indian secular writers, give me proof from pundit historian and leaders like Pandit Jailalkilam, Pandit Bamzai etc.?
Dr.Zainulabideen: Let me prove you this from your leaders Pandit Jailalkilam, History of Kashmiri pandit page 289-291 “and the first batch of pandit graduates came out in 1911 AD. A struggle was the result which took the shape of Kashmiri pandits versus the outsiders (Indian who were generally Arya Samajist and other Indian who were seeking jobs in Kashmir).In Kashmir, the British officers encouraged the pandits and even sided with them in their struggle against the outsiders. The outsider Indians were generally Aryasamajist with which was the name of Lala Lajpat Rai connected. This opposition to Indians by Kashmiri pandits according to Pandit Jai Lalkilam resulted in a formulation of the definition of the state subjects in 1912 AD and an order was promulgated that only the subjects of Jammu and Kashmir should be recruited to state services.
Furthermore, on page 290, Kilam says “ Pandit Shankar Lal Koul, Jai Laljalali, Jai Lal Koul and other fresh graduates started an agitation through the outside press for securing the rights of state subjects. The Jammu Dogras held a big political conference. A batch of pandit delegates attended the conference along with other delegates who were mostly Hindus and founded a common platform and organized a state subject committee for the ventilation of their grievances.
As proven their main grievance was that Indian should not be recruited in Jammu and Kashmir. Kilam furthermore added on page 291 that Maharaja Hari Singh sided with the committee formed by Kashmiri Pandits and Dogra youth and under his guidance, a committee was constituted which framed a constitution of state subject which is still in force till this date
Kilam wrote while boosting of his tribe “Kashmir Pandit took a leading part in bringing state subject law”. But now you are blaming Kashmiri Muslim for this article.
Sushil Lalit Pandita: Do you suggest State subject benefitted only Kashmiri Pandit, not Kashmiri Muslim?
Dr. Zainulabideen: This is communally engrained question to a Sufi person like I don’t see Kashmir through communal glasses, but if you insist I will tell you we Muslim were victims of supremacist cult always like Dalits of India let me prove you from your own historian Jai Lalkilam and great educationist Tyndale Biscoe
Kilam in the history of Kashmiri pandits page 228, “During all these years the Kashmir Muslim were nowhere in the picture. Little encouragement was given to them in the field of education for fear that they might become conscious of their political right. “there was hardly any Kashmiri Muslim who could have managed to come ineligibility list for job when pandits forced maharaja to bring state subject law in 1912, till first Kashmir Muslim graduates like Hussain Shah Jalali, Gulam Ahmed Ashia, and other Kashmiris came from Punjab University and other graduates from Aligarh university came in the late 1930s.
Sushil lalit Pandita: Kashmiri Muslim did not acquire education, how can you blame others for that?
Dr. Zainulabideen: let me quote you a few educationists who will guide you out of this self-imposed victim syndrome. According to Tyndale Biscoe, “the first batch of CMS school had 250 students and nearly all were Kashmiri pundits. They were son and grandsons of pandit officials who bullied and squeezed the Muslim peasant for years past, and their large houses were a standing witness to their looting power (Tyndale Biscoe, Kashmir in the sunlight pp.265).
Let me quote your historian Pandit Premnath Bazaz, the history of the struggle for freedom in Kashmir pp 140-141 “the first prime of Hari Singh regime Sir Albion Banerjee after resigning on 15 March 1929 said “Muslim population in Kashmir is absolutely illiterate, laboring under poverty and governed like dumb driven cattle”.
- Propaganda : Constitutional amendment under Article 368.
Sushil Lalit Pandita: Do you know Article 35 A can be introduced in the Indian Constitution only through a constitutional amendment under Article 368, and not through a Presidential Order under Article 370.since article 35A was not passed in parliament it’s null and void now?
Dr. Zainulabideen: So according to you any amendment in the constitution of India must come through Article of Article 368 – but sir the then President of India was knowing that article 368 is not applicable to Jammu and Kashmir so he bypassed parliament. You know Kashmir has not merged with India like rest of states as refreshed by our Sadr-i-Riyasat Dr.Karan Singh recently rather JK signed’’limited’’ instrument of accession with India – this limited instrument of accession was documented is presented as Article 370 right now and this Article 370 was accepted as a part of the Indian Constitution when it came into force on January 26, 1950, you can say Article 370 is only bridge between India and J&K, if tomorrow India decided to scrap this article , J&K will automatically become independent of India . Now you must understand that only of Indian Article 1 and article 370 of Indian constitution are applicable to JK, rest of article of Indian constitution like your article 368 are not applicable in JK. Karan Singh has said that Government is always saying Kashmir as an internal matter of India, but it should not forget that 42000 square miles of the original state is not under India. But It is under the control of Pakistan and China. Karan Singh has demanded the Government to Speak with Pakistan Government Over Pakistan Occupied Kashmir ( POK ).
(cit: https://youtu.be/eqM5jbrOifo)
3.Propaganda : President of india can scrap Article 35 A
Sushil Lalit Pandita: ok, I understand that the then prime of India was not required to pass this Article 35A through amendments process in the constitutional assembly as per Article 368 since Article 368 is not applicable in J&K, but the present President of India has the power to scrap or modify any article?
Dr Zainulabideen: No, even President of India cannot remove Article 35 A. Article 370 mandated that other provisions of the Constitution can apply to J&K, “subject to such exceptions and modifications as the President may by order specify”, with the concurrence of the state government and the endorsement of the J&K Constituent Assembly. In 1969, the Supreme Court ruled that the President can issue an Order under Article 370 only with the concurrence of the state government
Sushil Lalit Pandita: Since Kashmir has separate constitution other than Indian constitution, how can we amend J&K constitution legally without using might is right policy and how can we make Indian Article 368 applicable to JK?
Dr. Zainulabideen: Pandit Ji, remember an immortal, infallible, rule of faith and creed when it comes to J&K, “If any law has to be made applicable to the state of Jammu and Kashmir it has to go through the Article 370 as that is the bridge between the state and New Delhi”.
4.Propaganda : Supreme court of India can scrap Article 35A and article 370?
Sushil Lalit Pandita: Ok, even now I understood neither parliament of India nor president of India can change any law of J&K because it doesn’t come under their jurisdiction, what about Supreme Court of India?
Dr. Zainulabideen: the Supreme Court of India is not having any mandate or power to apply the Indian laws to the state of Jammu and Kashmir on the matters which are not mentioned in the instrument of accession.
In Sampat Prakash (1969), the Supreme Court held that Article 368 of the Indian Constitution, which requires approval by a two-thirds majority in Parliament to amend the Constitution, does not directly apply to J&K. The court held: “Article 368 is not primarily intended for amending the Constitution as applicable in Jammu and Kashmir, but is for the purpose of carrying the amendments made in the Constitution for rest of India into the Constitution as applied in the State of Jammu and Kashmir
5.PROPAGANDA : STATE ASSEMBLY CAN SCRAP ARTICLE 35A
Sushil Lalit Pandita: Since All option like president, parliament, and even Supreme Court of India are consumed we still have an option of state Assembly , if we can reach the majority figure in JK assembly somehow by making blend government either with PDP, NC or even with Congress in future ,or by adding 15 lac west Pakistan refugees ( WPR) , establishing Sainik colonies for of 26 lac retired military officers families ,Valmikis, Gorkhas , Political Ghettos for minorities on Israel pattern ?
Dr. Zainulabideen: Bad luck, you are little late, even the state assembly of J&K can’t amend the constitution of JK. After January 26, 1957, when a new Constitution was enforced in the state and the Constituent Assembly ceased to exist. According to the constitution of JK PART XII, article 147 under the section of ‘’AMENDMENTS OF THE JK CONSTITUTION’’ reads ‘’ no Bill or amendment is allowed seeking to make any change in the provisions (Article 370) of the constitution of India as applicable in relation to the State.
The concurrence given by the state government is not absolute. It is subject to clause (2) of Article 370 which provides that if the concurrence is given before the constituent assembly for the purposes of framing the constitution is convened, the laws for which the state government has given its concurrence has to be placed before such Constituent Assembly for such a decision as it may take. Once the Constituent Assembly was convened, the power of state government to give concurrence for other laws has stopped at the very movement. It was left to the Constituent Assembly of Jammu Kashmir to decide what laws would be made applicable to the state of Jammu Kashmir and whatnot as the Constituent Assembly was having this mandate by virtue of Article 370 of Indian Constitution.
The Constituent Assembly after framing the Constitution for Jammu Kashmir, has given the approval for the laws to be made applicable to Jammu Kashmir. Once the Constituent Assembly was put to an end the power of parliament to make law for Jammu Kashmir stopped that every moving and with this the provision of Article 370 which authorizes the Jammu Kashmir Government to give concurrence become obsolete that very movement.
The Sangh Parivar and its affiliated groups have long viewed the Muslim-majority demography of J&K as the primary problem — and believed that settling people in Kashmir from outside the state, with rights to acquire land and property, and the right to vote in Assembly elections is the only way to permanently end the Kashmir dispute. This is why they see Article 35A of the Indian Constitution, a provision that empowers the J&K legislature to define “Permanent Residents” of the state, as a major hurdle
Sushil Lalit Pandita: Then what about the laws which were introduced in JK in recent times by amending the constitution of JK like Abrogation of Autonomy, SARFAESI Act etc
Dr Zainulabideen: The laws which had been made applicable to Jammu Kashmir from time to time and for which the concurrence has been given by the state government is nothing but a fraud committed on Article 370 of the constitution by the successive government to fulfil their own interests and committed a breach of trust with the people of Jammu Kashmir. And our Indian justice system has given us this privilege to scrap these laws and acts democratically.
We Kashmiris had been ignorant of the era of democracy we had forgotten that this is the age of democracy we have now realized gun culture which was thrust on us was a policy of the state and nonstate politician. We believe the Indian judiciary will not commit any kind of injustice to us.
6.PROPAGANDA: THE PRESIDENTIAL ORDER 1954 CAN BE REMOVED.
Sushil Lalit Pandita: Suppose if we will scrap this law article 35A by might is right policy, what will be its legal consequence of the undemocratic military action?
Dr Zainulabideen: Jammu and Kashmir Ex-Chief Minister Mehbooba Mufti has reportedly claimed, at an event in Delhi on 28 July 2017, that there will be no one in the Valley to ‘shoulder the Indian Flag’ if the special constitutional status of Jammu and Kashmir is tampered with, or the Permanent Resident Act (35A) removed. ( https://plus.google.com/share?url=http://www.india.com/news/india/no-one-will-shoulder-national-flag-in-kashmir-if-special-status-of-jk-is-tampered-with-mehbooba-mufti-2360847/)
In over six decades, the President of India has issued 41 Constitutional Application Orders that relate to the applicability of the various provisions of the Indian Constitution to Jammu and Kashmir, including, replacing the elected Sadr-e-Riyasat with a Governor chosen by the Union Government and changing the ‘Prime Minister’ of the state to the Chief Minister. Hence, If and changing the ‘Prime Minister’ of the state to the Chief Minister. Hence, If the apex court rules that Art 35A is in violation of the Constitution, such a judgment will have to be made applicable to all the Constitutional Application Orders from 1950 till date J&K high court had ruled in 2015 that Article 370 is “permanent, beyond amendment, repeal or abrogation
7.Propaganda: We can remove ARTICLE 370
Sushil Lalit Pandita: It seems that Article 35A will be removed legally only if we remove Article 370 and 1954 presidential order?
Dr. Zainulabideen: Hold your horses, there is no constitutional way to remove Article 370, especially because Article 1 of the Indian Constitution (name and territory of the Union) is applicable to J&K only through Article 370. But if the challenge to the constitutionality of the 1954 Order is successful, all subsequent Presidential Orders will stand automatically invalidated. The residents of J&K were deemed as Indian citizens through these Orders; they were used to extend 94 out of 97 entries in the Union List, and 260 out of 395 Articles of the Indian Constitution, to J&K; and to impose central rule in J&K.
Sushil Lalit Pandita: Article 370 is temporary Provision, we can remove temporary provisions?
Dr. Zainulabideen: You are too late again “The Supreme Court on Tuesday, 3 April 2018 said that Article 370 of the Constitution which gives special status to Jammu and Kashmir is not a temporary provision.The Supreme Court on Tuesday said Article 370 of the Constitution, conferring special status on Jammu and Kashmir and limiting the Central government’s power to make laws for the state, had acquired permanent status through years of existence, making its abrogation impossible
Read more at:
http://timesofindia.indiatimes.com/articleshow/63603527.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst
8.Propaganda: if article 35 A is removed then Kashmir will enter into the era of the industrial revolution?
Sushil Lalit Pandita: If Article 35 A is removed then Kashmir will enter into the era of Industrial Revolution.
Dr. Zainulabideen: Even a layman will not accept this argument because you are suggesting is that an industrialist will come dragging his raw material from central India and south India then manufacture it in Kashmir then drag it back to central Indian market like Delhi, Mumbai, Chennai Kolkata to sell it. Don’t you feel it’s insane to waste money in the transportation of raw material to Kashmir and then selling it in metro cities?
There is a misconception in the rest of the country that 35-A is a huddle in the economic development of J&K. But the fact of the matter is that we have a provision in our constitution to lease out land for 99 years. Political unrest is a reason for our underdevelopment. Besides, we can’t afford 24-hour electricity for big businesses
Govt of India is not able to revive our own century-old silk factories how can they develop other industries.Our water resources are being sold.
Sajad Bazaz correctly opined, As far as the stake of Kashmir migrant Pandit community in the backdrop of challenges to the Article 35 A is concerned, I don’t even see a bright future for them. They have already faced persecution after migrating from the valley. Once J&K loses special status, this community too will see ‘special facilities’ crafted for them as migrants, fading away.
9.Propaganda: Article 35 A is anti womanhood?
Permanent Resident Status (Disqualification). Fidayeen, unlike great Indian journalist Ravish Kumar, is often doing this propaganda that, if a Kashmiri woman marries an Indian she will lose her property, this is just a propaganda for vote bank. In a remarkable Full Bench decision in Dr.SushilaSahani’s Case (2002), Justices Jhanji and Doabia (with Justice Muzaffar Jan dissenting), made it clear that “the daughter of a permanent resident marrying a non-permanent resident will not lose the status of permanent resident in Jammu and Kashmir.” This was a clear signal that Jammu and Kashmir’s laws on permanent residence were genders unjust.
In 1980-82, huge controversies were created by the J&K Re-settlement Act, which invited past residents (including those in Pakistan) back into Jammu and Kashmir. This, in turn, led to a presidential reference to the Supreme Court in 1982 which the Court declined to answer in 2002 to result in further litigation which is still pending.
The J&K High court gave a verdict that “Daughter of a permanent resident of the State of Jammu and Kashmir will not lose status as a permanent resident of the State on her marriage with a person, who is not a permanent resident of the state.”
Propaganda media driven Indians unlike secular Indians have grossly misunderstood the nature of Indian federalism, which is founded on a theory of `unequal federalism’ under which all States are not equal and many enjoy a special status.
Article 371 contains special provisions for Maharashtra and Gujarat. Then follow a stream of special provisions, including Articles 371A (for Nagaland), 371B (Assam), 371C (Manipur), 371D and E (Andhra Pradesh), 371F (Sikkim), 371G (Mizoram), 371H (Arunachal Pradesh), and 371(I) (Goa). To this may be added the Fifth and Sixth Schedules of the Constitution, which grant special provisions to the Tribal Areas and the North Eastern States. We do not have to emulate American federalism to find answers for India. China has special provisions for Hong Kong, Macao, and other autonomous regions. If Sri Lanka is to find a solution within a federal structure, it will have to examine India’s `unequal but special’ approach to federal governance to find an answer to its problems.
It is self-evident that the unique treatment given to the `unequal but special’ States of India was due to historical factors or because specially placed people needed special treatment. Article 370 is not an anomaly but an exciting example of the infinite possibilities of federal and governance in India; and, perforce, the sub-continent. The separate but special status of Jammu and Kashmir does not militate against the State is an integral part of India. Jammu and Kashmir have had its own Constitution since 1957 — being the only State in India to do so — within the conspectus of the Indian Constitution. The Indian Constitution applies to Jammu and Kashmir with some adaptations from 1954, which have been further amended some 46 times. However, to enable the `unequal but special’ federalism to work, both the territory and the people of a special State have to be defined and identified.
The concept of a permanent residential status as a basis for according special privileges to residents of an area is no stranger to Indian governance. Nor, indeed, is the idea that the ownership of immovable property rights should be confined to certain people in certain areas. Today the hill States of Himachal Pradesh and Uttaranchal have limited land ownership to their residents. In relation to Nagaland and Mizoram, the Indian Constitution permits special laws in respect of “ownership and transfer of land and its resources.” The Fifth Schedule of the Constitution contains special provisions to limit land transfers among tribals. This found constitutional satisfaction with the Supreme Court in the Samata Case (1997). Such policies exist throughout the Northeast and tribal areas. Thus the Indian Constitution not only permits but also ordains various States to enact special laws to limit the ownership of land only to some designated residents.
10.Propaganda: Fundamental Rights
Sushil Lalit Pandita: Fundamental rights must be equal for every Indian, you Kashmiris can’t have the different set of fundamental rights in one country?
Dr Zainulabideen: First fundamental right of a human being is right to live since 1947 we have lost 6 lac souls, have you probed why 1200 students were blinded by pallets just because they were seeking political solution to Kashmir dispute,have you probed 10000 mass graves , have you probed Kunanposhpora mass rape ,custodial disappearance ,massacre of Sikhs in Chatisingpora .
Having said this Part IV and IVA i.e. fundamental rights and directive principles are not applicable to State of Jammu and Kashmir.
Right to property which was repelled in Indian constitution is still valid to state. At last, I will request don’t try to fiddle with the constitution of Jammu and Kashmir and look for a democratic solution.
NOTE: THIS POLITICAL SATIRE IS AN ACADEMIC AND APOLITICAL DISCOURSE BETWEEN TWO IDEOLOGIES. RESOURCE PERSON IS READY TO BE CORRECTED ACADEMICALLY.
Dr. Eshraf Zainulabideen can be reached at zainlala69@gmail.com
