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Article 370: Oft forgotten, ignored Kashmiri Pandit perspective must be taken into account, IA moved in Supreme Court

“It is submitted that the perspective of the driven out and exiled Kashmiri Pandits is an imperative and integral factor in understanding this entire issue", the application filed by the All India Kashmiri Samaj highlights.

Sanya Talwar

In the saga of petitions filed against the abrogation of Article 370, an intervention application has been filed on behalf of the All India Kashmiri Samaj.

The applicant organization claims to represent the collective voice of the Kashmiri Pandits and contends that they are important stakeholders in the determination of the Kashmir issue. The organisation supports the abrogation of Article 370, submitting that,

“… the 2019 Order [Presidential Order of August 6, that rendered Article 370 redundant] and the 2019 [Jammu and Kashmir Reorganisation] Act suffer from no legal infirmities and are not violating any provision of the Constitution of India.”
All India Kashmiri Samaj

The application has been drawn by Advocates Rahul Tanwani, Manan Sanghai, VC Shukla & Prashant Singh and filed by Advocate Anantha Narayana MG.

Inter alia, the applicant has made the following submissions on the need to implead the organisation as a party to the case, and to justify the abrogation of Article 370

Imperative that Kashmiri Pandit community perspective be accounted for

The plea highlights the oft-ignored, oft-forgotten and oft-overlooked perspective of the Kashmiri Pandits, which according to the applicant, has been suppressed over the years. It is argued that earlier governments have been apathetic in addressing the plight of the Kashmiri Pandit community.

In view of these concerns, the applicant had earlier filed another PIL before the Supreme Court praying for the declaration of the Kashmiri Pandits as “internally displaced people” within meaning of the definition adopted by the office of the UN High Commissioner for Human Rights. This had been transferred to the Jammu & Kashmir High Court and is pending adjudication.

The application moved in the Article 370 case refers to the Kashmiri Pandit exodus of 1990, which the organisation points out resulted in the displacement of the community out of its homeland, and led them to become “refugees” in their own country. Referring to the night of January 19-20, 1990, the applicant states,

“On the said night, lakhs of Kashmiri Muslims came out on the roads, streets, open grounds of Kashmir and shouted for Kashmiri Pandit blood, while using mosque minarets to blare out blood curdling threats to Kashmiri Pandits. The message blared was Raliv, Tscalive, ya Galive (Convert, Flee or be prepared to die).”

In view of this historical background, it has been contended that without the perspective of the Kashmiri Pandit community, deciding on the legality and validity of the abrogation would be an incomplete exercise.

“It is submitted that the perspective of the driven out and exiled Kashmiri Pandits is an imperative and integral factor in understanding this entire issue.”
All India Kashmiri Samaj

On the temporary nature of Article 370

It is contended by the applicant that the transient nature of Article 370 and the President’s power to cease its operation by way of public notification is suitably clear from the wording of the Article itself. In this regard, the application highlights that the provisions begins with the phrase, i.e., “Temporary provisions with respect to the state of Jammu and Kashmir.”

Therefore, the applicant highlights,

“In other words it is submitted that there can be no devolution of permanent rights by operation of a temporary provision.”

Inter alia, the applicant further explains,

“… the temporary provision was only to establish an interim system to restore peace, security law and order in the state of Jammu & Kashmir due to the geo-political conditions then prevalent at that point of time.”

All India Kashmiri Samaj

It is added that the need for such an interim measure was dispensed with once Jammu and Kashmir integrated with India by the Treaty of Accession (1947), which the applicant argues was an unconditional one. The applicant goes on to assert,

“Upon such integration the purpose of the temporary and transitory provision concluded and no special status was required to be conferred.”
All India Kashmiri Samaj

Security resolution core reason for introduction of Jammu and Kashmir Reorganisation Act, 2019

It is averred by the petitioners that the issues of cross border terrorists, internal security issues and the inability of the erstwhile state government to mitigate these issues are some of the core reasons necessitating introduction of the Jammu and Kashmir Reorganisation Act, 2019.

“It is submitted that the this reorganisation of the State of Jammu & Kashmir into two distinct Union Territories of Jammu & Kashmir and Ladakh is imperative and a critical move considering the ground realities of security, and actions being undertaken in the Pakistan-occupied-Kashmir (PoK) Territory of Jammu & Kashmir.”

In this regard, the applicant contends that by directly coming under the purview of the administration of the President of India, a transparent channel for management of the state of Jammu & Kashmir can be maintained.

Jammu and Kashmir’s claim for self-determination flawed

The applicant also argues that J&K’s claim for independence is flawed. The region of Jammu & Kashmir does not qualify for self-determination as it has been categorically held in the Constitution of Jammu & Kashmir 1956 that the region is an integral part of India, the applicant submits.

“… upon passing of the Constitution of Jammu & Kashmir in 1956 it has been categorically held that Jammu & Kashmir is an integral part of India under Section 3. Unlike in the position in international law, subsequent state practise does not trump the written word in Municipal law. Once a constitutional declaration of such nature is made any contrary action claiming rights of self-determination do not stand.”

In view of these, among other, submissions, the applicant has prayed that the Supreme Court allow it to intervene in the cases filed against the abrogation of Article 370, “as they are important stake holders in the determination of the Kashmir issue.”

On January 23, a Constitutional Bench of the Supreme Court comprising NV Ramana, SK Kaul, R Subhash Reddy, BR Gavai and Surya Kant reserved orders on the issue of reference of the cases challenging the abrogation of Article 370 to a larger Bench.

Presently, no date has been given by the Court to hear the matter on merits. Various interveners including the Kashmiri Pandits are expected to present their arguments on the next date.

[Read the Application]

The All India Kashmiri Samaj - Article 370 IA.pdf
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