Another snow storm in Kashmir

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By FK WEB DESK on 10/01/2019.

Another snow storm in Kashmir

By Prof.Bhim Singh


New Delhi, Jan 10: The Govt. of J&K has taken a strong stand to its legal counsel before the Supreme Court that J&K Govt. would not like the Supreme Court to hear and decide the sensitive matter relating to the J&K Resettlement Act. This Act was passed by the Legislature of J&K in 1982 when Sheikh Mohd. Abdullah was the Chief Minister of J&K. The Resettlement Act related to the Kashmiri migrants who migrated from J&K to Pakistan from 1947 to 1954. This Act was passed unanimously in December 1981 while only one legislator, Bhim Singh (that is this author) was a Congress legislator who opposed this Bill mainly on the ground that the Bill provides for the return of those Kashmiries (Muslim brethren from J&K) who had migrated to Pakistan after partition between 1947 and 1954.

 

This author at that time was a Congress legislator and opposed the Bill for including the descendants of the migrants as well as the widows of a migrant from Pakistan to J&K (India). The Congress party suspended MLA Bhim Singh from the party. Bhim Singh resigned from the Assembly as well as from the Congress party protesting against the Congress policies towards the contents of the Bill. He argued that he had no objection if the migrants from J&K to Pakistan would return to J&K (India) as they were State Subjects/Permanent Residents of J&K according to the Law on State Subject recorded by the then Maharaja Hari Singh of J&K in 1927. He strongly opposed the Bill (now Resettlement Act) against the second part of the Bill which provided that the widows/wives and descendants of such migrants to Pakistan shall also be entitled to come to J&K. This author/now senior advocate representing the Panthers Party petition before the Supreme Court has taken a clear stand that the descendants or the widows of the migrants could not be permitted under this Law made by the legislature of J&K to obtain entry permits/permission to settle in J&K against the property of their ancestors.

 

J&K National Panthers Party is the only contender today against the draconian Law made by the legislature of J&K. Prof.Bhim Singh started this legal battle in December, 1981. Shri K.Venugopal, Sr. Advocate (presently Attorney-General of India) led the arguments for the Panthers Party whereas Shri Ram Jethmalani, Sr. Advocate appeared for the Govt. of J&K. Three-judge bench headed by Justice Chenappa Reddy after hearing the matter for days stayed the operation of the Act.

 

In the meantime, the then Governor of J&K, Shri B.K. Nehru refused to sign the Bill and returned it to the State Assembly to reconsider. In his refusal letter he addressed the State Govt. that,

 

“I have come to the conclusion that the Act, as it now stands, suffers from many defects and deficiencies–constitutional and other. The former attract the responsibilities laid upon me by my Oath of Office which requires me to “Preserve, protect and defend the Constitution and the Law” and make obligatory a reference back to the Legislature for reconsideration under the proviso to Section 78 of the Constitution of Jammu and Kashmir. The letter make such a reference desirable. This I now accordingly do.” 

 

The Bill assumed the shape of law even when the Governor had not consented the proposed Bill. This was in accordance with the Rules provided in the J&K Constitution. This must be known by the country men that Constitution of India is not applicable to the State of J&K even the fundamental rights enjoyed by the Indian citizens are not available to the citizens of India residing in J&K. The Fundamental Rights were under the thumb of J&K Govt. as the President of India in May 1954 had introduced an amendment adding ‘A’ to Article 35 of the Indian Constitution which is closing Article in the Chapter-III of the Indian Constitution. 35-A was introduced by the President of India through Ordinance which continues in operation till this day.

 

The Governor Shri B.K. Nehru’s letter was considered by the Govt. of India which referred the matter to the then President of India, Giani Jail Singh for appropriate action. The President of India referred this matter to the Supreme Court of India for its opinion if the J&K Legislative Assembly was competent to legislate in the matter which related to the law on the citizenship rights. The matter remained pending in the Rashtrapati Bhawan in 1984 to 2001 when the Panthers Party raised this issue on the streets seeking information on the fate of the Resettlement Act.

 

It was in 2001, may be November/December that the Supreme Court of India constituted a 5-judge bench to consider the reference made by the Govt. of India vis-à-vis J&K Resettlement Act. The 5-judge bench refused to pass any order except dismissing the reference in three words, Returned, respectfully, unanswered’. The then Chief Minister of J&K, Dr. Farooq Abdullah convened an emergency meeting of his cabinet in December 2001 and announced that he shall start the process for providing desired entry permits to the migrants from Pakistan to J&K.

 

At this stage Prof.Bhim Singh met several national leaders for their support and advice on the issue. It was only Shri Atal Bihari Vajpayee the then President of newly formed Bharatiya Janata Party who filed an intervention petition before the Supreme Court. It was J&K National Panthers Party which had filed the petition through its General Secretary, Shri Harsh Dev Singh, the then General Secretary of JKNPP. Prof.Bhim Singh with the guidance of Shri K.Venugopal. The Supreme Court issued the stay order which continues till date. The matter remained pending with the Supreme Court of India even after that. It was only last year that matter appeared before the Supreme Court of India for hearing. The Supreme Court of India has been approached by the Govt.of J&K in Governor Rule seeking favour to adjourn the matter till elections to the Legislative Assembly are held. This has been strongly opposed by J&K National Panthers Party arguing that the matter has been pending before the Supreme Court of India since 1981. 38 years have gone since, Bhim Singh said, he has been fighting from the floors of the Legislative Assembly of J&K to the Supreme Court of India seeking dismissal of the so-called Resettlement Act framed by J&K legislature as the Law interferes directly with the rights of the citizenship of the Indian citizens.

 

 

Citizenship is a subject which is dealt only by the Parliament of India. State legislature has no competence to interfere with any legislation relating to the citizenship of any Indian. Prof.Bhim Singh has also expressed surprise on the silence of the Govt. of India to keep quiet at this juncture when J&K is under the President’s Rule. The state of J&K cannot be allowed to cross the limits or bypass the President of India in such serious matters which relate to the rights of citizenship of the Permanent Residents of J&K.

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