K N Pandita
knp627@gmail.com
In October last, the SC bench directed the Union Government to respond to the petitions pending before it in which the court has been requested to seek implementation of its December 11, 2023 ruling. The Supreme Court had unanimously upheld the Centre’s decision to revoke Article 370, which had granted special status to Jammu and Kashmir. The Court also directed that assembly elections be conducted in the Union Territory (J&K) by September 2024 and that statehood be restored at the earliest possible date.
The elections to State Assembly were held in deference to the directive of the SC. The newly formed Legislative Assembly met in Srinagar on November 4, 2024. The plaintiffs argued that more than 13 months had elapsed, but the Union Government had not taken any initiative towards restoring the statehood. The bench gave the Union Government four weeks to submit its response.
The manner in which the State Government has been repeatedly insisting on restoration of statehood to J&K gives an impression that the elected government has some lurking apprehensions that the Centre may find pretexts to scuttle the restoration of statehood. The Union Government has laid emphasis on restoration at “the earliest possible date.”
The State Government often quotes central authorities in general and the LG in particular that militancy has been controlled in J&K and normalcy has returned. Therefore, the time is suitable for the revival of statehood.
But New Delhi withdraws its feet and cites the Pahalgam tragedy is a strong proof that armed insurgency has not only been not stamped out but has assumed outright communal parameters in Kashmir. It wants to silence the State Government and the plaintiffs with this ground reality. Though security forces have not disclosed the widespread network of insurgency within the valley and the higher reaches of the Pir Panchal range which has become the new roadmap for external jihadists, the reality is that thousands of people in Kashmir valley and elsewhere across the Pir Panchal have been either rounded up; on suspicion or interrogated for divulging very sensitive information of refurbished terrorist plans for the valley. The escalation of jihadist infiltration into Kashmir, which we have been witnessing for last two or three years, is a mix of the reaction of local separatist and pro-Pakistan collaborative elements against the Reorganization Act of 2019. More recently, the Ghazva-e-Hind gunmen, sponsored and abetted by ISI after Pakistan’s present army chief assumed the command, have vigorously contributed to the specter of violence and mass radicalization of Kashmir valley’s majority community.
The point is that the judiciary is one of the four organs of a state. As such, it is expected to be in full knowledge of the ground situation in the country and particularly in the border and sensitive state of J&K where externally sponsored and internally abetted armed insurgency is running 37th year or its black deeds.
Perhaps what eluded the probity of the Supreme Court is the palpable danger of religion-based terrorism looming large on the State. But SC is expected to look at the issue from all possible angles and dovetail the ruling accordingly because the judiciary is one of the four organs of a democratic state.
We could be a little more candid in what is needed to be conveyed but is not conveyed. The issue involves the fundamental structure of the Indian state, viz. secular democracy. Secularism and democratic dispensation both were at stake in J&K, which necessitated constitutional shift of its status through an Act of Parliament. Such a sensitive issue cannot be handled with kid-gloves. The spade has to be called by its name.
The onus of pushing Kashmir to the brink essentially lies around the doorsteps of the Kashmir valley mainstream political leadership. It wants to remain glued to power by subtly playing the card of religion —- the classical opium for the masses. New Delhi craftily circumvents the crux of the problem. State government knows the crux but refuses to open Pandora Box. And the SC likes to remain contented with treating the symptoms not the malaise.
Before announcing the time frame (of four weeks), should not have the SC asked the State government what measures it has taken during its year and a half tenure in office to mobilize public opinion in the valley against armed insurgency in all its forms and manifestations? Should it not have asked the State Government to ensure that radicalization being highly detrimental to social cohesion needed to be controlled? The SC is aware that during past three and a half decades of armed insurgency, no Kashmir valley political leader has uttered a single word against the armed jihadists engaged in a comprehensive plan of subversion and sedition with covert support and encouragement by the separatists. Not only that, the valley leadership backed up the separatists and terrorists, their OGWs in particular, whenever the security forces raided a hideout of the terrorists and seized arms and ammunition for them. There is hardly a day when such incidents do not happen in Kashmir.
The SC knows what is the most critical angle of such a deep controversy about revival of Statehood status. Let us call the spade by it name. It is the ethnic cleansing of Kashmir of its five thousand years old Kashmiri Pandit aboriginal community and their procrastinated exile running into the 37th year. The SC knows that the essential and irrefutable reason for reorganization of the state and shifting it to UT status was the conspiracy of ethnic cleansing of Kashmir in 1990 in which the then ruling coalition played a vital role. Should not the SC ask the present government what steps it has taken to address this important issue? The state or the Union Government cannot escape the responsibility of failing to provide the fundamental rights of the small religious minority of Kashmir valley, namely the right to life and property and freedom of adhering to a particular religion. The exiled community expects the SC to ensure the representation of the Kashmir minority community (now in exile) particularly when the administration is almost indifferent towards the matter.
The simple logic in restoring the statehood of J&K is that whether the exiled community has been restituted in their place of birth? Whether their restitution is guaranteed against refoulment? And if refoulment happens again should not the onus come to the doorsteps of the SC? The SC becomes doubly responsible because there is not a single elected member from this minority community in the State Assembly who would challenge the demand of the State ruling authorities of restoring statehood to J&K without reflecting positively on the corollary of an impartial judicial inquiry into their genocide and ethnic cleansing in Kashmir in 1990.
Granting the statehood to J&K means restoring the constitution of the state, which contravenes many articles of the Constitution of India in more than one way? The Stat Constitution rejects the concept of minorities among its population but invariably claims that the Muslims of the State enjoy the minority rights provided by the Indian Constitution. Statehood should not be granted in a vacuum. Minorities have to be recognized as inalienable part of electorate and have to be provided constitutional safeguards.
In final analysis the Indian Constitution and the Indian state must ensure that true secularism and equality before the law of the land are ensured for the perpetuation of the state. As long as religion is allowed to dictate the terms for governance, democracy remains stifled.
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