Graceless defeat of J&K-BA in SCI can be reversed by Review. By Hem Raj Jain
01 May 2017
On Friday reportedly the Supreme Court of India (SCI) practically dismissed the petition of J&K Bar Association (J&K-BA) by putting impossible condition that it can order dialogue with Kashmiris to resolve Kashmir conflict if there was a halt to stone-pelting and bloodshed. Like any other Bar Association the J&K-BA is also a body of law-knowers hence such ignominious defeat of J&K-BA in SCI is disgraceful especially given the fact that J&K-BA prepared the case so clumsily. Even now J&K-BA can win the case in SCI if it files review-petition as given below:-
(1)- In the interest of getting succor to the people of J&K (especially of Kashmir) instead of unnecessarily raising irrelevant issues the J&K-BA should concentrate only on one issue that security forces, AFSPA, SPA etc should be removed from J&K.
(2)- The J&K-BA should tell SCI that J&K acceded to India in 1947 as per instrument of accession where military matters are the responsibility of India but India has not discharged its responsibility in this regard with the result the large part of J&K the ‘Pakistan occupied Kashmir’ (PoK) is still with Pakistan hence J&K has every right to question the accession of J&K to India
(3)- The J&K-BA should tell SCI that territory is a martial matter and not a civilian matter and is decided by blood and not water (howsoever sacred it may be like ink in Constitution or in Unanimous resolution of Parliament). Without military back-up mere mention in Constitution or in Unanimous resolution of Parliament that entire J&K (including PoK) as integral part of India is not worth the paper it is written on.
(4)- The J&K-BA should tell SCI that much smaller Pakistan tried to take Indian side of J&K militarily in 1947, 1948, 1965, 1971, during Kargil etc because Pakistan considers Indian side of J&K as part of Pakistan. But India never tried to retrieve PoK militarily (not even once) because India does not consider PoK as part of India. This is due to Communal mindset of so-called secular India where Hindu majority India (unlike Goa) does not want to shed blood for Muslim PoK.
(5)- In view of non-retrieve of PoK for the last 70 years as mentioned above the J&K-BA should tell SCI that as per adverse-possession Pakistan is increasingly acquiring better title on entire J&K, therefore SCI should make this legal position clear to Government of India (GOI)
(6)- The J&K-BA should tell SCI that there may be one more reason for non-retrieve of PoK. During last 70 years Indian military may be afraid of taking-on Pakistan military for retrieve of PoK and instead is showing its ‘bravery’ by training guns (including pellet guns) on civilians of J&K under protection of AFSPA, SPA etc.
(7)- The J&K-BA should tell SCI that the behavior of GOI is like ‘Ulta Chor Kotwal Ko Dante’ (thief scolding policeman) because guilty is GOI which has not retrieved PoK but GOI is putting entire blame on the people of J&K for whatever (violence etc) is happening in J&K
(8)- Therefore in this review petition the SCI should be prayed by J&K-BA that:-
(i)- Security forces along with AFSPA, SPA etc should be immediacy removed from J&K
(ii)- GOI should be asked that approximately by what time it will retrieve PoK by dialogue with Pakistan or by military action (if dialogue does not succeed).
It is hoped that by filing said review-petition the J&K-BA will show that when it comes to law & constitution it is different from and superior to ordinary person of J&K.