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Fight of Kashmiris to defend Article 35 A / 370 getting vitiated due to their not demanding retrieve of PoK

Alwihda Info | Par Hem Raj Jain - 15 Août 2017

Bengaluru, India

Sub:- (i)- Supreme Court has no jurisdiction over martial matters (ii)- Without integration of PoK the integration of J&K with India absurd and illegal (iii)- Communal Hindu majority India wants to forget Muslim PoK (iv)- Non Muslims of J&K (from Jammu and Ladakh regions) will not defend unity of J&K (v)- Muslim Kashmiris will have to defend permanent-residency of J&K (vi)- Kashmiris should defend permanent-residency by keeping only their martial rights in view (vii)- Muslim Kashmiris are unnecessarily lenient towards Muslim Pakistan about retrieve of PoK (even militarily if necessary) (viii)- Kashmiris can’t defend permanent-residency of J&K under Article 35 A / 370 without demanding retrieve of PoK

-------On August, 14 Supreme Court of India (SCI) has reportedly ordered to constitute a 5 Judge Constitutional Bench to hear the petition filed by an NGO 'We The Citizens' with respect to the constitutionality of Article 35A which gives special status to the State of J&K under Article 370 of the Constitution which grants special autonomous status and power to the State of J&K for discriminating against non- residents of J&K from rest of India who are debarred from buying properties, getting a government job, voting in the local elections etc.

At the outset it should be made clear that entire J&K was assimilated in India by instrument of accession in 1947. Hence when almost half of J&K (PoK including Gilgit and Baltisan) is under Pakistan for the last 70 years (which damages the tile of India over J&K due to adverse possession in contrast to better title over J&K of Pakistan which tried to take Kashmir many times even militarily in 1947-48, 1965, 1971, during Kargil, through proxy war etc) then it is absurd and illegal to say that entire J&K is an integral part of India (notwithstanding mention of entire J&K as integral part of India in the Constitution of India or in unanimous resolution of Parliament). Because territory of any country is not a civilian matter rather a martial matter which is decided by blood (military power) and not by water (ink on Constitution or on unanimous Parliamentary resolution) we should not forget that blood is thicker than water.

Therefore a civilian court SCI has no jurisdiction to adjudicate over martial matters. It is pertinent to note that under Article 144 too only all authorities, civil and judicial, in the territory of India are supposed to act in aid of the SCI (but not the martial authorities). It is a different matter that martial element of India never demanded martial court to adjudicate also the grievances of military personnel and ironically their members like former Army Chief Gen V.K. Singh etc went to civilian court SCI for redress of their grievances. The SCI can maximum adjudicate on the civilian matters like constitutionality (including gender discrimination) of Article 35 A etc but cannot adjudicate on the martial matter like special status of J&K (which gives power to State of J&K to decide permanent-residency of J&K) for the simple reason that as long as PoK remains with Pakistan entire J&K is a disputed territory.

Because communal non-Muslims of J&K (from Jammu and Ladakh regions) will not defend unity of J&K the Muslim Kashmiris will have to defend permanent-residency of J&K. But Kashmiris should defend Permanent-residency by keeping only their martial rights in view. Though the politicians of Kashmir are trying to protect Article 35 A but they are doing it in a wrong way. Kashmiris should tell the SCI that – ‘[It has no jurisdiction to adjudicate on martial matter like permanent–residency of J&K (due to non-integration of J&K to India as PoK is with Pakistan) therefore SCI should confine itself to adjudicate on any other matter but should not take the right from the State of J&K about permanent- residency which SCI may keep generally as per J&K Princely-State laws / existing laws as given below keeping 1948 as cut-off year]’:-

“[(i)- Persons permanent residents of J&K before 1920 (ii)- Persons acquiring immovable properties through legal means after 1920 and having permanent residence in J&K at-least for 10 years after acquiring such properties (iii)- Such J&K permanent-residents migrants to Pakistan and their children for two generations and (iv)- Children of Permanent-residents only when both the parents (without gender discrimination) are permanent-residents of J&K]”.

Because Kashmiris being Muslims have never demanded retrieve of PoK (even militarily if necessary) from Muslim Pakistan therefore Kashmir problem has never been solved and this is the main cause of their all the problems. Hence NOW Kashmiris simultaneously should demand that PoK should be retrieved by India so that this Article 35 A / 370 controversy and all other problems of J&K can be resolved once and for all for the better.


Hem Raj Jain

(Author of ‘Betrayal of Americanism’)

Bengaluru, India

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