Kashmir dispute echoes in HC, Bar seeks status quo in delimitation case

Srinagar, May 15: Kashmir dispute has been discussed in some of the top forums of the world United Nations, European Parliament, and other such bodies. But rarely has it reverberated in highest judicial body of Kashmir, the High Court.

Thursday was one such rare occasion when the High Court Bar Association, presented its arguments in delimitation case, told the court that Jammu and Kashmir was never part of India, and plebiscite in accordance with the United Nations resolutions is yet to take place in JK.

The Bar termed the demand for fresh delimitation, as sought by the petitioner Panthers Party president, Bhim Singh of Panthers Party, a move by the government of India to change status quo of JK through its stooge governments in JK and to avoid final settlement of Kashmir dispute according to UN resolutions.

Mian Abdul Qayoom, president of the Bar, quoting judgments of the Supreme Court of India argued that postponing delimitation till 2026 was not violation of democratic rights, as it doesn’t affect elections. He said the Delimitation Commission constituted in 1981 submitted its report in 1995 and till then three so-called elections were held in Jammu and Kashmir without delimitation of assembly constituencies.

Qayoom said the state legislature passed amendments in Section 47 of the State’s constitution and the People’s Representation Act in 2002, and Bhim Singh was party to these amendments. “But in 2007 all of a sudden Singh filed petition to challenge the amendments ostensibly to garner support and popularity in a section of people in Jammu,” Qayoom said, terming the petition malafide and politically motivated.

Qayoom then quoted resolutions of the UN passed on 17 January 1948, 20 January 1948, 21 April 1948 and several other UN resolutions on Kashmir. He said convening of the Constituent Assembly by the National Conference on October 1950 was the biggest fraud played on people of Jammu and Kashmir. The NC had convened the constituent assembly to determine the future shape and affiliations of the State of Jammu and Kashmir.

He said the Security Council resolutions explicitly say that the decisions of the constituent assembly would have no bearing on the Kashmir dispute.

He then quoted Article 253 of Constitution of India which says consent of the J&K government has to be obtained in event of its final disposition. “Therefore this is implicit recognition of the UN resolutions and the international dimension of the issue,” Qayoom said, adding the final settlement of the Jammu and Kashmir is yet to take place.

Qayoom argued the regime of Jammu and Kashmir doesn’t mean the government of JK in its present form that is being formed through farcical election process to carry administrative work. He said JK regime in its’ present form has to conduct day to day business and it can’t decision to determine the future of people of Jammu and Kashmir. “The Article 253 indicates about a separate government to be specially created to look how the plebiscite would be conducted in JK under UN,” he said.

He said the constituent assembly of J&K ratified the accession when Sheikh Abdullah, who sold Kashmir to India, was in jail, and another stooge Bakshi Ghulam Muhammad, the then prime minister, was in charge.  This and various agreements between India and Pakistan on Kashmir indicate that Kashmir was disputed territory and people have not been given up on their right to exercise the plebiscite, he argued.

He said the present state of J&K was disturbing where draconian acts like Armed Forces Special Powers Act and Disturbed Areas Act were in force. He said there was no democracy in Jammu and Kashmir and elections were being held in one part and curfew was clamped in rest.

Referring to the discrimination part agitated by Bhim Singh in his petition, Qayoom took back the Court to the Treaty of Amritsar of 1846 when Kashmiris were sold along with land, animals to Dogra Maharaja. He said the rule of Dogra Maharajas was tyrannical.

He said Kashmiris have been ousted from bureaucracy and police, and now by seeking readjustment of seats an attempt was being made to gain political power to change the status quo of JK to stall its final settlement. This time, Qayoom argued, Bar has sided with government only to maintain the status quo and prayed that the status quo shouldn’t be disturbed.

In April 2002, the National Conference regime had brought a constitutional amendment in section 47 of the constitution of Jammu and Kashmir and in the Peoples Representation Act that explicitly says it was not necessary to readjust the assembly seats till 2026.

The Panthers Party president, Bhim Singh filed petition in the Supreme Court against the amendment, but withdrew it after he was told to approach an appropriate forum. Then he filed a petition in the High Court, claiming “present composition of Assembly comprising 111 members with 24 seats reserved for PaK (AJK), was highly biased against Jammu region, which was allocated only 37 seats against 46 seats for Kashmir region.”

Earlier the division bench comprising Chief Justice, Justice Barin Gosh and Justice Mansoor Ahmad Mir heard senior counsel Z.A Shah who was speaking on behalf of the Bar on the issue.

On last hearing the Chief Justice Barin Gosh had observed the Court would like to hear whether the amendment was destroying basic structure of the democracy or not. “If it does affect the democracy then it has to be explained how, and if it doesn’t that too has to be elaborated,” the Chief Justice had observed.

“The current make up of the assembly which ensures a bit of protection to the suppressed people of Kashmir should be upheld,” he said. Qayoom argued the petitioner, Bhim Singh has fabricated the discrimination story of Jammu for the sake of political mileage. In fact the people of Kashmir have been singled out by declining them the right of plebiscite whereby they could decide their future by democratic means.  He said that no delimitation or census can be done in the state “as it is in the jaws of draconian laws like Armed Forces Special Powers Act and Disturbed Areas Act.”

“We want a final settlement of Kashmir issue that has been put in a deep freeze for 62 years,” Qayoom said. Singh in the petition had stated that people of Jammu on the basis of population and territory deserve three more seats in the assembly than they currently possess.  Giving the historical background of the issue, Qayoom said, “The entire state of J&K including its human kind, its rivers and even its air were purchased by the despotic ruler of Jammu in 1846 against rupees 75 lakh from the British. We struggled and survived till the situation of 1947 arose.”

“We were promised referendum but India continues to negate this right to us. He said when the world body understood the designs of India by constituting a constituent Assembly in J&K, United Nations through its resolutions 539 and 756 categorically said the Assembly has no mandate in deciding the future of the state,” he added.

The Bar president said tilting of political power towards Jammu is being done with a view to dilute the 1954 order by government of India which under article 253 says that no central law could be extended to the state without the consent of the JK regime.

He said the bureaucratic make up of the JK has already been engineered in favor of Jammu and conspiracies are being hatched to incline the political power also in favor of the region, adding that the petitioner does not represent people of Kashmir valley, Doda, Poonch and Rajouri. He argued the amendment of constitution, putting on hold the number of seats, does not effect elections or the democracy. A delimitation commission was constituted in 1981 which after years of its controversial style of functioning suggested 44 seats for Jammu region, he said.

Earlier Zafar Ahmed Shah, senior lawyer, while concluding his argument said the  government of India has done away with the population ratio in the creation of constituencies.  Under Article 55 of the constitution of India the population of the J&K has been recorded as 63 lakh and seats have been fixed at six. The state assembly too has followed by freezing the number of seats at 111 till 2026 including the 28 seats for Azad Jammu and Kashmir.  “We have taken away census on which territorial constituencies could be created,” he said, adding, “The 29th amendment in the state constitution is transitory without abrogating the basics of the constitution. People by no count loose their democratic rights.”
The petitioner Bhim Singh, Bar president said, describes in the petition that he speaks on behalf of people of Kashmir. “He represents, if at all he really represents, only a certain section in Jammu,” He concluded his argument by asking for dismissal of the petition.
Today Z.A Shah answered the question through these arguments. He said a constituency is determined on the basis of population, not on the basis of electors. “It is possible that within a population the electors can be less or more as compared to the population of other constituencies. The amendment doesn’t destroy the identity of the constitution and it continues to be democratic,” he said.

Shah said that the legislature has frozen the seats in the same manner as the constituent assembly had done in 1956 when the Constitution was adopted. “For readjustment of the constituencies census is necessary. The legislature has deferred the census till 2026 for the purpose of creation as well as re-adjustment of the constituencies. By doing so the legislature has not deprived any elector any electorate of his voting rights. No electorate has any right to choose any particular candidate, who may contest from some other constituency,” he said, adding that the electorate can choose candidates from the constituency where he is a registered voter.

Shah said the legislature couldn’t amend the constitution if the amendment touches the core of the constitution. The legislature can’t alter the constitution and replace the old constitution by a new one. “But the legislature can within the constitutional framework make changes according to the need,” he said.

Shah said in JK creation and alteration of the legislative constituencies has nothing to do with the population. He said in case of parliamentary seats the population has not been taken into the account and the legislature has followed the same logic.

Shah described the petition as mixture of politics and said it was not maintainable. He said prayed for dismissal of the petition and said that constitutional amendment couldn’t be challenged through PILs. With this Bar concluded its arguments. Bhim Singh, who was present in the Court, would respond to the objections raised by Bar on Friday morning before the Bench.
GK-RK