Salman Khan
Johannesburg 12th Dec 2023.
Indian Supreme Court declared “Indian Constitutional order that revoked Article 370, 35a for Jammu and Kashmir as valid, as the saying goes “I am the Judge, Prosecutor and the President / policemen”, so the verdict of India Supreme Court on Kashmir semi-independent status revoking through the Article 370 was given under the jurist of BJP-RSS run fascist-Modi government. It was anticipated as under the reign of terror since the Modi took over as President of India the kidnapping and target killing of judges, witness and prosecutor in fake encounters has risen and the custodian of judiciary fear for their live.
Indian SC Verdict:
The court held the Constitutional order that revoked Article 370 as valid. A five-judge Constitution bench, presided by Chief Justice of India (CJI) DY Chandrachud, had reserved its verdict on as many as 23 petitions in the matter on September 5 this year, after 16 days of hearings.
Article 370 verdict highlights: The Constitution bench of the Supreme Court has pronounced its verdict on a batch of petitions challenging the abrogation of Article 370 and bifurcation of the erstwhile state of Jammu and Kashmir into two Union territories. The top court upheld the government's decision to abrogate Article 370 and said that steps should be taken to conduct elections in the assembly by September 30 next year. SC also upheld reorganisation of Ladakh as Union Territory. Article 370, which was abrogated on August 5, 2019, was an interim arrangement due to war conditions in the erstwhile state, Justice Chandrachud said.
A five-judge constitution bench comprising Chief Justice of India DY Chandrachud, Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant passed the judgment. On September 5, the apex court reserved the judgment after hearing the arguments for 16 days.
History:
In the historical context when Indian army illegally invaded state of Jammu and Kashmir on 27th Oct 1947, which led to civil unrest and civil war in Jammu and Kashmir then the Prime Minister Nehru submit to UNSC for the intervention and remedial action. After listening to both parties India and Pakistan the UNSC adopted Resolution 47 of 1948 [on restoration of peace and order and the plebiscite in the State of Jammu and Kashmir] and this resolution was accepted by both India and Pakistan as a ceasefire was attained on 31 December 1948. This promised by India was never been given to people of Kashmir and thus it has been declared as international disputed territory by UNSC. Since 1947 over 100,000 people have been killed and over 30,000 in jail for the crime of struggle to get freedom from Indian illegal occupation.
The UN mandated the UNCIP to monitor any Kashmir border disputes. The LoC was signed on 27 July 1949, organised by the Truce Subcommittee of the UNCIP and supervised by the UNCIP. After the UNCIP ceased to operate in 1951, the UNSC passed Resolution 91 of 1951 which mandated the UNMOGIP to monitor the ceasefire and continue its mission until peace could be achieved on both sides of the LoC .The Karachi Military Agreement was ratified by India and Pakistan on 29 and 30 July 1949 respectively as illustrated in Figure 3.2 (UN Document Number S/1430/Add in UN-Peacemaker, 1949).
The Indian government subsequently denied the people of Kashmiris free and fair plebiscites to practices their “Right of self-determination”. Finally the President of India Rajendra Prasad issued his first order, the Constitution (Application to Jammu and Kashmir) Order, 1950, under Article 370, which specified the scope and full extent of the powers that the Parliament would exercise in Jammu and Kashmir it was an acceptance and declaration of semi-autonomous statehood to Jammu and Kashmir by Union of India. It was political maneuvering by Union of India to tone down the Kashmiris separatist movement and demand for an independent state. After 73 years of granting of Article 370,35a to state of Jammu and Kashmir has been finally revoked (illegally and unilaterally). The Article 370,35a was initially abrogated on 5th August 2017 which was legally challenged by civil societies of Indian Supreme Court and it took five years for SC to finally issued the verdict as reported above, it was anticipated and no judiciary is independent and free in the reign of terror,
“The position of the United Nations on this region is governed by the Charter...and applicable Security Council resolutions”, said the statement. “The Secretary-General also recalls the 1972 Agreement on bilateral relations between India and Pakistan also known as the Simla Agreement, which states that the final status of Jammu and Kashmir is to be settled by peaceful means”, in accordance with the UN Charter. Antonia Guterres secretary general UN statement issued on 8th August 2019.
Despite India’s unilaterally revoking of Article 370, 35a Indian presence in Jammu and Kashmir (J&K) remain illegally occupied territory and Kashmir dispute still an internationally accepted conflict according to UN secretary general and Indian unilateral decision on Kashmir is an illegal act and remain on UNSC agenda as unresolved dispute which can only be decided through free and fair referendum as per UNSC resolution 47 of 1948 on Kashmir dispute..
Indian opposition parties raised concerns:
‘Congress respectfully disagree': Chidambaram on Article 370’
"We respectfully disagree with the judgment on the manner in which Article 370 was abrogated," P Chidambaram, Congress Rajya Sabha MP said during a press conference held at the party headquarters here.
Chidambaram said, "Congress also disappointed that the Supreme Court did not decide on the question of dismembering the state and reducing its status to two union territories. That question is reserved for adjudication and a suitable case in the future."
Judicial dilemma:
Judicial misconduct breaks down the very fibre of what is necessary for a functional judiciary- citizens and democracy who believe their judges are fair and impartial. The judiciary cannot exist without the trust and confidence of the people. Judges must, therefore, be accountable to legal and ethical standards. In holding them accountable for their behaviour, judicial conduct review must be performed without invading the independence of judicial decision-making. This task can be daunting, but they must be able to operates independently and without fear or favours.
More than any other branch of government, the judiciary is built on a foundation of public faith-judges do not command armies or police forces, they do not have the power of the purse to fund initiatives and they do not pass legislation. Instead, they make rulings on the law. Rulings that the people must believe came from competent, lawful and independent judicial officers. Unfortunately this cannot be applied to BJP-RSS Modi run Indian government whereas the marginalization of minorities is the order of the day. It would be inappropriate to recognised India and one of the biggest and functional democracy while the demagogy is staples of ruling party.
At what point is a judge's ruling so far afield of precedent and legal code or such an egregious violation of fundamental rights that it appears the judge is acting with impunity towards the law? Generally, the decisions of a judge should be left for judicial review, not for critique by a conduct commission. However, incidents where people are jailed without due process, judges inventing improper remedies for cases, or a breakdown in the rule of law can rise to the level of judicial misconduct. Regulating that type of behaviour without violating separation of powers or decision-making independence becomes a walk on the edge of knife.
“In the End, we will remember not the words of our enemies, but the silence of our friends”. Martin Luther King, Jr.
We call upon international community to show solidarity with people of Kashmir and especially the people of South Africa for those who understand the brutal regime of apartheid regime prior of 1994. If it was not good for South Africa to have apartheid government which oppressed majority of the population and trampled on every human rights from the freedom of speech to freedom of movement and association then why it should be alright for the people of Kashmir those are oppressed by Indian illegal occupation as minority occupying forces and oppressed the majority of the Kashmiris indigenous people. It is exactly the same what is happening in Palestine at the hands of illegally occupying forces of Israel.
“To be free is not merely to cast off one's chains but to live in a way that respects and enhances the freedom of others”. Nelson Mandela
Taking cognizance of the above statement from Madiba, I would like to humbly invite all South African and the rest of the citizens of the world to join our struggle for Free Kashmir as it is triple endowed duties on us firstly as human beings which connect us as golden thread to every human being in the world, secondly, as a religious duty, no matter what religion you follow, as all religion put a great emphasis to defend, protect and fight for oppressed people of the world and thirdly, as a citizen of South Africa who has a similar and very poignant oppressive past. The people of the world recognized us as a great nation, freedom fighters and champion of human rights. Ironically, oppressed people of the world put a lot of trust in South Africa to help them in supporting their struggles as a gesture that South Africa was freedom loving people. The world assisted in liberating South Africa from the shackles of apartheid, and it has a moral responsibility to assist and show solidarity to help others fight for a free world. Perhaps it is our time as South Africans to reciprocate and help Kashmir people remove their chains as we are never free as long as others are imprisoned. As South Africans we must actively aid the oppressed and ensure their freedom as we are from oppression and know firsthand what it means. It is only by the freedom of others that we can change the world so that we all live in freedom and harmony not under the threat of oppression, rape and murder. Freedom is not a privilege but a right and we should protect the rights of others if we want freedom for ourselves and humanity. Oppression everywhere must be fought in order for freedom to be enjoyed by our progeny because a better world is possible if we are courageous enough to create it.
Call to Action: Please write to following government officials and register your objection to Indian illegal and unilateral abrogation of Article 370, 35a.
To President Cyril Ramaphosa at presidentrsa@presidency.gov.za
To Dirco Minister Naledi Pandor at minister@dirco.gov.za
To Chairman SAHRC at jhollenbach@sahrc.org.za / complaint@sahrc.org.za
Thanking you in advance for your kind cooperation and solidarity.
Aluta Continua,
In struggle,
Cde. Salman Khan.
Founder of South African Kashmiri Action Group
Kashmir Centre for Africa Union
Kashmir Global Movement
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