Will be inhumane & politically suicidal if rest of J&K and India continue to ditch Kashmiris. By Hem Raj Jain

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The 3 weeks of serious violation of fundamental & human rights of Kashmiris (by way of their detentions, arrests, lock-down, denial of their rights of expression, assembly, work, communication etc) is not only inhumane but it is also politically suicidal for the people of rest of J&K and rest of India because they have ditched the Kashmiris (at this hour of grave threat to the essentials of the very existence of the Kashmiris) which Kashmiris will never forget especially when rest of J&K and rest of India can easily come to their rescue (as mentioned below) but are not doing so:-

(1)- The HR-friendly rest of J&K and rest of India including political (opposition), social and religious organizations are making noises for bringing relief to these beleaguered & illegally-harassed Kashmiris but it is not yielding any result for the simple reason that they are proverbially barking at the wrong trees.

(2)- Rather they should immediately file writ petition in J&K High Court (under Article 226) and in Supreme Court of India (under Article 32 of the Constitution) praying before the Court to urgently hear and decide HR issues in Kashmir and GOI’s illegal (because against IoA) legislation (the cause of Kashmir lock-down) about Article 370, 35-A and bifurcation of J&K in two union territories.

(3)- Many people have filed such writ petitions but these have not yielded any result so far for the benefit of these beleaguered & illegally-harassed Kashmiris for the simple reason that these writ petitions have not been filed on the basis of plebiscite mandated by ‘Instrument of Accession’ (IoA). Hence now writ petition should file as given below: -

(i)- The arguments against illegal legislation done by Government of India (GOI) about Article 370, 35-A and bifurcation of J&K in two union territories can be given as have been given by other petitioners also in their writ petitions. Such as, it is unconstitutional because before amending Article 370 and repealing Article 35-A and before converting a State into two union territories the will / consent of the people of J&K has not been obtained etc. etc.

(ii)- But mainly it is the argument about plebiscite mandated by ‘Instrument of Accession’ (IoA) which will bring success to these new writ petitions. Hence petitioners should plead that it is written in IoA  –“[My Dear Maharajah Sahib, Your Highness’s letter dated the 26th October, has been delivered to me by Mr. V.P. Menon. In the special circumstances, mentioned by your Highness, my Government have decided to accept the Accession of Kashmir State to the Dominion of India. Consistently with their policy that, in the case of my State where the issue of Accession has been the subject of dispute, the question of Accession Should be decided in accordance with the wishes of the people of the State, it is my Government’s wish that, as soon as law and order have been restored in Kashmir, and her soil cleared of the invader, the question of the State’s Accession should be settled by a reference to the people. Yours Sincerely Sd/- Mountbatten of Burma]”

(iii)- That the Ex-Ruler of J&K the Maharaja Hari Singh, and both the legislatures (of Union of India and of J&K)  have no right to decide about accession of J&K, because as per IoA this right of accession lies exclusively with the people of united J&K [J&K and Pakistan occupied J&K (PoJK) combined]. Moreover as per IoA the people of J&K have nothing to do even with United Nations rather it is the responsibility of India to get free & fair plebiscite by getting the soil of united J&K cleared of Pak invaders (including non-citizens of united J&K) and after getting law & order restored in united J&K and how India does it is India’s headache whether by its own or through UN or by getting military help from any friendly country.

(iv)- That the link between India & J&K is not through Article 370 and 35-A but through IoA as these Articles came in existence much after IoA. The purpose of Article 370, 35-A are two folds. (A)- To ensure outsiders-free J&K to facilitate free & fair plebiscite and (B)- Pending plebiscite, for the purpose of managing J&K politically, administratively and legally ONLY as per the wishes of the people of J&K as expressed by laws made by legislature of J&K and as per the laws and Constitution of India applicable to J&K to the extend consented by the legislature of J&K as per Article 370. On one hand India is under legal obligation to ensure outsiders-free PoJK in the interest of free & fair plebiscite in united J&K and on other hand India has paved the way for outsiders entry in J&K by amending Article 370 and by repealing Article 35-A of the Constitution which is unconstitutional & illegal because it is against the letter & spirit of IoA.

(v)- Therefore the petitioners in these writ petitions should pray before the Court that:-

(A)- Repeal the Article 1 (3) (a) of The Constitution of India and PART II THE STATE (3) of the Constitution of J&K [which illegally show J&K as Indian territory (like any other State of India) and even an integral part of India without any mention of the condition of plebiscite to decide the territory of J&K as per ‘Instrument of Accession’].

(B)- Recommend to President of India and to Governor of J&K that they under Article 86 (2) of the Indian Constitution and under Article 54 (2) of the Constitution of J&K respectively may send message to Parliament to incorporate in such repealed parts of the Constitution of India that – [As per ‘Instrument of Accession’ the fate of territory of J&K will be decided after plebiscite which will be carried out by Union of India after ensuring, in united J&K, the conditions conducive for carrying out such plebiscite].

( C)- Quash Ministry of Law & Justice (Legislative Department) notification New Delhi, the 5th August, 2019 G.S.R .551(E).— the Order made by the President which was published for general information and The Constitution (Application to J&K)  Order, 2019 C.O. 272 and repeal the subsequent amendment of Article 370 by Parliament and Repeal ‘Jammu and Kashmir Reorganization Act, 2019’

(D)- (In view of delay of 71 years and resultant immense killings, injuries and sufferings due to chronic & gory so-called Kashmir problem) direct the GOI  to get plebiscite in united J&K at the earliest possible after ensuring in united J&K the conditions conducive for carrying out such plebiscite required by IoA.

Here it is needless to say that if the Courts do not urgently hear and decide these HR issues in Kashmir and GOI’s illegal (because against IoA) legislation (the cause of Kashmir lock-down) about Article 370, 35-A and bifurcation of J&K in two union territories (which have made the lives of Kashmiris practically impossible) then the HR-friendly rest of J&K and rest of India should constrain Courts to do it by protest and demonstrations against these Courts which may maximum bring imprisonment for few months for Contempt of Court and which should not be a big deal for HR-activists and political parties especially in view of the fact that the Kashmiris will never forget this help and will ever be grateful to such HR-friendly rest of J&K and rest of India.

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