Back from ‘near normal’ Kashmir 

The way forward is obscure. But this can only begin through a return to democratic polity and by allowing Kashmiris, a full say in their governance

Back from ‘near normal’ Kashmir 

Wajahat Habibullah

Late in November, I returned to New Delhi from a visit to Srinagar, which would have been hilarious, had it not been so tragic. No, I was not confined to any hotel as some newspapers reported, though some other visiting citizens were.

But yes, I was shackled by ‘security’, by boys from the CID and IB. They initially informed me that I was not only NOT allowed to move out of the city, but that I didn’t have permission to travel to even downtown Srinagar. I responded by telling them that as an Indian citizen, I needed nobody’s permission to move wherever I wished in my own country; especially now when all Indian laws have become applicable in J & K.

Taken aback, they took to pleading that they were only following orders and I must help them keep their jobs!

Admonishing them as I would truant schoolboys, I would have dismissed their pleas, except that my hosts pleaded that I might concede their pleas. They were after all fellow Kashmiris.

That did not prevent me from strolling to join prayer at nearby mosques, including the well attended 6.00 am Fajr prayer, and shifting to stay overnight with friends in different localities in Srinagar, only to be followed by the boys. They protested to my hosts that they should have been informed of my movements. I simply asked ‘why?’ while my hosts would truthfully tell the boys that they themselves had no prior information.

There was however a silver lining. On my way to the airport for my flight back, my security escort ensured that I entered through the VIP access route. I was waved through without much ado.

However, the continued suffering imposed on our fellow citizens in the former State of Jammu and Kashmir should be a matter of deep concern. The legality of the abrogation of the constitutional status that existed before August 5, 2019 is for the apex court to rule upon. But that this was done without any consultation with the Indians directly concerned is surely unworthy of the democracy of which we are all proud.

In October 2015, the High Court of J&K under Chief Justice Hasnain Masoodi had ruled that ‘Article 370 cannot be abrogated, repealed or even amended.’ In 2016, in the case of SBI vs. Santosh Gupta, the SC repeated as much. Para 12 of that judgement makes the interesting argument that in the 1969 apex court judgement in Sampat Prakash vs. State of J&K Article 370 being a ‘temporary’ provision was ruled out.

In 2017, hearing an appeal against the Delhi High Court in the SARFAESI case, the SC dismissed the plea that Article 370 was temporary in nature. On April 3, 2018 the SC bench of Justices AK Goel and RF Nariman gave a similar opinion declaring that Article 370 had acquired a permanent nature.

Even more grievous is the total withdrawal of civil liberties to our fellow Indians in the beleaguered Union Territory. Kashmir is virtually a police state today with a near total suspension of the fundamental rights contained in Article 19 (1) (a) of the Constitution. Even basic communication like messaging remains cut off, and the populace subjected to continuous bluster and intimidation by the State CID, the IB and the paramilitary.

The RTI Act, repeatedly held by the Supreme Court to be part of Article 19 (1) (a) has become moribund. Security men are deployed along main streets, telling ordinary folk what to do. A nondescript police officer carrying the label ‘Tourist Police’ set the tone at the airport on arrival, menacingly asking people receiving me at the airport whether I was Indian. Despite protestations to the contrary by the administration, the economy has stalled. All economic activities like hospitality, transport, trade and industry, horticulture, agriculture, forestry and even regular opening of shops floundering.

Banks have in fact stepped up pressure for recovery of dues, with increasing NPAs leading to apprehensions of widespread closure and bankruptcy, which some suspect is deliberate to force sell-out to favoured businessmen. Peoples’ participation in governance, a characteristic of the Indian Republic but tenuous for far too long in Kashmir, has altogether evaporated.

Although schools and hospitals are open, their function is disrupted. The Home Minister’s claim in Parliament on November 21 that the Union Territory had returned to near normalcy was belied by a universal shutdown. There was very little violence, but the shutdown was remarkable for its voluntary and consensual nature.

The Government’s claim that democracy is functional because of the recent indirect elections to Block Development Councils is refuted by its detention of the state’s political leaders. Most of the handful of Kashmiri Panchayat members elected to BDCs are housed in seedy hotel accommodation in Srinagar under government security with board and lodging at Rs 1700/- per month paid for by the state.

They are unable to visit, let alone be of service to the panchayat to which they have been elected. Besides, the erstwhile state’s Panchayati Raj Act 1989, under which the elections were held, has not been brought in line with the provisions of Part IX of the Constitution. A Panchayat in J&K is anything but ‘an institution of self-government’.

And so, we have the advent of a regular police state in J&K. It is time for all democratic institutions in India, the executive, the legislature and the judiciary to address this unacceptable denial of democracy to over eight million of our citizens.

This must begin with the release of detenus apprehended u/s 107 CrPC for nothing more than a misconceived apprehension of breach of peace. This is a legal provision that every executive magistrate uses to avoid public disturbance, producing the arrested before a magistrate forthwith.

Yet this innocuous clause is being used as the principal instrument of an oppressive regime, apart from the more draconian Public Safety Act that, apart from being imposed on a large number of youngsters, has been invoked against former Union

Cabinet Minister and state Chief Minister Farooq Abdullah. The nature of his threat to national security can be judged by his nomination to the Parliamentary Standing Committee on Defence.

Although we, including former NDA Minister and MP Yashwant Sinha made a request to District Magistrate Shahid Chaudhury to allow us to visit former Chief Ministers and a detained CPI MLA, we were told that this was not possible.

The way forward is obscure. But this can only begin through a return to democratic polity and by allowing Kashmiris, like other Indians, a full say in their governance and determining their future as equal citizens of our celebrated democracy.

(The writer was the first Chief Information Commissioner of India and is a former chairperson of the National Commission for Minorities)

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