Monday, May 11, 2009

BAR LINKS K-ISSUE WITH SEAT DELIMITATION

UN Resolutions, Instrument Of Accession Likely To Reverberate In Court Today

NASEER A GANAI


Srinagar, May 10: On Monday the Jammu Kashmir High Court would hear a petition of a rare nature. The petition, actually related to increase in number of assembly seats in Jammu division, is likely to stir a discussion on Kashmir dispute, UN Resolutions on Kashmir, and Instrument of Accession.
After government turned down a bill seeking increase in the number of assembly by setting up fresh delimitation of the constituencies in Jammu division, the president of Panthers Party Bhim Singh filed a petition. Among other points Bhim said in the petition that Jammu has a larger geographical area than Kashmir and hence it should have more seats. He had alleged discrimination with Jammu.
But Jammu and Kashmir High Court Bar Association challenged Bhim’s petition, terming it an ‘attempt to capture political power purely by increase of legislative assembly seats in Jammu province.” A division Bench comprising the Chief Justice, justice Bahrain Gosh and Justice Mansoor Ahmad Mir heard petitioner Bhim Singh and Jammu Bar in Jammu High Court. The Bench would now hear the Bar in Srinagar.
The Bar has framed a four-point response-- state disputed nature of Jammu and Kashmir, question the petition itself, discuss the issue of discrimination raised in the petition, and elaborate the “politics behind the petition.”
The Bar has annexed documents of Treaty of Amritsar, UN Resolutions, agreements between India and Pakistan, and other documents with its response. The Bar’s objections present historical background of Kashmir dispute and how the State of Jammu and Kashmir has evolved in past 200 years. The Bar has quoted the various Security Council resolutions stating the final disposition of the State of Jammu and Kashmir would be made in accordance with the will expressed through democratic method of a free and impartial plebiscite under UNO.
“Everything said and done, the Indian government maintains that it has legal possession of the State of Jammu and Kashmir by virtue of the instrument of Accession and Pakistani position is based on the contention that the so called accession of the State Jammu and Kashmir was fraud and therefore there was no basis whatsoever for India’s contention,” the Bar said.
The Bar’s objections say Bhim Singh’s petition and other statements have to be viewed in historical perspective. “The writ petition brings to fore intra regional issues and seeks to project them under the cover of constitutionalism and discrimination,” the Bar said. It described constitution of two commissions headed by two retired judges as fall out of discrimination bogey raised by Jammu people. Bar described the writ petition as an attempt to vest political power with Jammu people and repeat the times of Dogra rulers.
The Bar said the writ petitioner has not refrained from making political statements in the writ petition. “Because under the cover of PIL it seeks to espouse altogether different issue and seeks a judicial finding on those issues,” the Bar said. Bar said whether the people of Jammu have been discriminated or not in the sharing the states resources is a matter that should not come up in the present proceedings. The Bar said that intra-regional issues raised in the petition should be dismissed with costs, as they have been sharpened and projected in a way to cause an upset in the State.
The Bar said the delimitation commission can’t be constituted for increasing the number of legislative assembly seats, nor it can be constituted for the purpose of re-adjustment of boundaries of assembly constituencies, or for rotation of reserved legislative assembly constituencies. The Bar has elaborated that it is Muslims of the state who are being discriminated.

On May 11, 2009
The High Court on Monday heard the delimitation case with the High Court Bar Association arguing the petition filed by the Panthers Party president Bhim Singh was neither maintainable nor in the public interest but an attempt “to concentrate political power in a particular section of a particular region of the state.” 

Senior counsel Z A Shah, pleading the case on behalf of the Bar before a division bench comprising the Chief Justice Barin Gosh and Justice Mansoor Ahmad Mir said the petition has been filed by a political party apparently to safeguard interests of a particular section in Jammu division. Shah termed the petition an attempt to drag the court in inter-regional issues.

Shah said the Bar firmly stood by the integrity of the State, and believes no region should be discriminated against. Rubbishing the points of discrimination raised by Singh in his petition, Shah said a different picture would emerge if the issue of regional discrimination is touched.

Shah then explained peculiar nature of the State of Jammu and Kashmir, the Constitution of the Jammu and Kashmir, Article 370 and its applicability, Indian Constitution and its applicability to Jammu and Kashmir, and international dimensions of the issue.

Zafar quoted the Article 253 of the Constitution of India which says the consent of the J&K state has to be obtained in the event of its final disposition. “Therefore this is implicit recognition of the UN resolutions and the international dimension of the issue,” Zafar said, adding the disposition of the State has not taken place so far. Zafar submitted this aspect should be taken into consideration, and to maintain integrity of the state the Court should uphold the amendment that has postponed fresh delimitation of assembly constituencies till 2026.

Replying to the Bhim Singh’s contention in the petition that suspending delimitation till 2026 was against democracy, Zafar said it has to be seen what kind of democracy the J&K has enjoyed, and whether it could be termed as the democracy that is in vogue in other places.

Shah cited the amendment passed by Parliament that fixed the number of parliamentary seats for J&K at 6, doing away with the criterion of population ratio. He said the State government passed a similar amendment freezing delimitation till 2026.  Shah asked can the president be accused of discrimination vis-à-vis the Parliament amendment.

Shah would argue the case further on Thursday.

Earlier, when the case came up for hearing, the Chief Justice Barin Gosh observed the Court would like to hear legal instead of political arguments; 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 observed, adding the Court has not taken any of the points alleged in the petition into consideration except to see whether the amendment (that delimitation is postponed till 2026) was in accordance with the constitution or not.

In April 2002, the National Conference government had brought a constitutional amendment in the assembly 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.” Bhim Singh and the Jammu Bar argued the case before the Bench in April 2009.

Advocate G.A Lone who requested the bench that case should be heard at heard Srinagar as well was the first to argue today. He said postponing the delimitation doesn’t affect the voting rights.

Former advocate general of the State Altaf Hussain Naik said the delimitation commission of the State has no powers to increase or decrease the Assembly seats. He said the power to increase or decrease the seats lies with the legislature that has suspended this provision for some period. “By doing so it has not taken away any democratic right from anyone,” he said.

The senior counsel Syed Tasaduq Hussain said that a writ petition could be filed only by a “natural person.” He quoted the US Supreme Court judgments and the rules of the Jammu and Kashmir High Court and said that the no political party was the “natural person.” He said the petition was against the rules and not maintainable. 

The advocate general of the State Ishaq Qadri, who was present in the Court throughout the day, had argued the case of State in Jammu before the Bench in April 2009. He had said the petition was not public interest litigation.

At Last Kashmir Dispute Echoes in HC 

May 14, 2009. 

Srinagar, May 14: 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 the state, the High Court. Today was one such rare occasion. The High Court Bar Association, presenting 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 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 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 elections were held in the state 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 State is yet to take place.
Qayoom argued the government of Jammu 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 government 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 the State 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.
The petitioner Bhim Singh, Bar president said, describes in the petition that he speaks on behalf of people of JK. “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.
In April 2002, the National Conference government 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.
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. On Friday the Bench heard Singh for some time and then asked him to come up with detailed response in Jammu on May 22. The Bench said that it would deliver the judgement on the case before the summer vacation.

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