UNITED STATES ADMINISTRATION’S DECLARATION ON TERROR AND ITS SOCIO-LEGAL-POLITICAL RAMIFICATION FOR KASHMIR VALLEY PROFESSOR DR. K. L. BHATIA DAAD AND MAX-PLANCK FELLOW AND ALUMNI FORMER DEAN FACULTY OF LAW AND THE FOUNDER DIRECTOR THE LAW SCHOOL UNIVERSITY OF JAMMU; PROFESSOR NATIONAL LAW UNIVERSITY, JODHPUR; FOUNDER DEAN AND PROFESSOR EMERITUS UPES; DIRECTOR AMITY LAW SCHOOL; UNDP PROFESSOR PUBLIC LAW United States declaring Syed Salahuddin a global terrorist has come as recognition to India’s concern to fight against terrorism jointly globally. The declaration recognizes India’s stature of hard State of 2017 (twenty first century) that is different from 1962 of soft State, namely, India’s physical vitality, economic growth, scientific and technological development, and spiritual strength give enough courage to attitude of powerful nation. The US declaration unfolds that India’s decision not to resume dialogue with Pakistan is justified. The declaration also unmasks Pakistan sponsored terror on its soil and abetting proxy war against India through JKLF, Hurriyats (both hard core and soft core), Hizbul Mujahiddin, Lashkare-Toibba, etc in Kashmir valley. US declaration has punctured the azadi or self-determination narrative in Kashmir Valley and endorsed the fact that Kashmir Valley is also the victim of radical Islamic terrorism and Islamic Caliphate. The declaration shows that India has a mindset to deal with terrorists, militants, secessionists, separatists sternly. US like declarations by other global administrations may have to be taken as strength on our back by isolating the abettor State Pakistan, but India has to increase its weight and hit and punch proportionately. It is time, now, to act against perpetrators as well as protagonists of terrorism externally and internally. The US declaration has both external as well as internal ramifications. At the outset, it shows international wrath against terrorism and propagators of terrorism. Pakistan is shamed as protagonist and perpetrator of terrorism. Two pronged strategies are the need of the hour to tackle ticklish war against terrorism and militancy. First, as a weapon of international politics and diplomacy, India has to adopt economic and other recognized blockade modalities against Pakistan. India must stop diplomatic relations with Pakistan. India must put economic blockade against Pakistan such as trade related activities with Pakistan through International borders such as Jammu Kashmir, Punjab, Rajasthan and sea routes. India must seal all its borders — land, air and water — with Pakistan not only to check infiltration of terrorists but also to eliminating the process of hawala money. India must adopt offensive attitude against Pakistan. This process shall be supporting India on its aims and intensions of curbing Pakistan-sponsored terror and seeking diplomatic isolation of Pakistan. This would be hindering Pakistani administration to continue providing political, diplomatic, economic and moral support to the terrorists, militants, secessionists to their specious azadi struggle. This shall convey a strong message to Pakistan to rattle Pakistan to understand that the so called azadi fighters if not true to India where they were born and brought up, how they could be loyal to Pakistan! Second, the message the US declaration conveys is a clear signal to the secessionists, terrorists, and militants that Jammu Kashmir State is not disputed and belongs to India. The author has unequivocally given vent to on more than one occasions that right from Vishnu Puran to Kalhan’s Rajtarangini to modern history to neu-modern history to the constitution making process that Jammu Kashmir was India’s, is India’s and will be India’s till infinity and eternity. Jammu Kashmir is an integral part of Union of States and its entrenched federal structure which is fons juris of constitutional patriotism. The US declaration thus is unconditional stating in unequivocal expression that the struggle in the Kashmir Valley is not a freedom (azadi) struggle or the right to self-determination, as claimed by Pakistani administration, but it is terrorism. The US decision recognized that violence in the Valley is officially supported by Pakistan and its local stooges. The reactionaries have had dyed-in-the wool situation and thus called for Kashmir Valley bandh, as usual. The US declaration seems to have given world recognition to India’s claim that Pakistan has been facilitating its soil for subversive, seditious and waging war against the Government of India activities in the Valley. It is time for India to act as a hard State contra to ‘weak government’ that it is willing to wound but afraid to hurt. It must seal all its borders adjoining Pakistan borders. It must put economic blockade in the valley through land and air ways. It must seal the boundaries of the Valley from all sides to eliminating terrorists, stone pelters, street-demonstrators, and infiltrators. Besides, India must take strong measures to seize the bank accounts of Hurriyat and co., attach their palatial properties, stop the pension of pension-holders, withdraw the security provided to them and detain them and initiate the process against them for sedition, espionage, and waging war against the Government of India under the law of the land in national interest. India has had to learn a lesson from Israel. Israel also faced the identical problems on its soil. Israel quelled it by stern actions and the stone pelters and street demonstrators till date had not dared to repeat their activities. India must learn a lesson from Germany’s Basic Law which has inbuilt provisions to deal with a crisis which might affect the safety and integrity of the whole country. Such provision is tolerated as a necessary evil or as a safety valve in order to save the country and its democratic Constitution itself. Germany when confronted with ‘red army’ (Rote Armed Fraktion — Red Army Fraktion: R. A. F.) of late sixties and seventies , Germany sternly crushed its terrorist and militants activities in 1968 with singular approach that Germany had willing to wound and unafraid to hurt attitude. The human rights activists may wake up from their slumber to challenge State actions. For them Schleyer Kidnapping case (1977) of German Constitutional Court is worth consideration in this perspective with regard to the fight against life-threatening terrorist activities of blackmail. On September 5, 1977, terrorists abducted Dr. Hans Martin Schleyer, President of the German Federation of Industries, after the brutal slaying of his four aides. The kidnappers threatened to execute their hostage if the federal government failed to release from prison eleven of their comrades and ensure their safe exit out of the Federal Republic. When the government refused to comply or succumb to pressures of the terrorists, Schleyer’s son, an attorney, petitioned the Federal Constitutional Court for a temporary injunction urgently needed to avert serious detriment to Basic Rights — fundamental rights – to life arguing that State authorities were obligated to meet the terrorists’ demands, and refusing to do so would be the equivalent of an intentional act against the life and limbs of the abducted person. The Federal Constitutional Court while rejecting the petition emphasized that the Basic Law commits the State to the protection of each human life. This obligation is comprehensive, and it requires the State to protect it from unlawful interference by others, because human life represents a supreme value, the State must take its duty to protect it particularly seriously. Though the precept is mandatory, but the State authorities are basically free to decide how best they should meet their obligation to protect life effectively, and it is their task to decide what protective measures are useful and necessary to guarantee effective protection. The peculiarity of affording protection from life-threatening extortion by terrorists is characterized by the fact that protective measures must adapt to a multitude of unique situations. The Basic Law creates an obligation of the State to protect not just the individual but all citizens as a whole. From the foregoing, it discerns that the recognition of the larger general national interest and the protection of life of citizenry as a whole are more important than the protection of a single human being’s life. Life-threatening extortion or ransom by the terrorists or militants if succumbed may yield threatening results. Therefore, the Federal Constitutional Court seems to have exercised considerable caution in adjudicating the right to life claim, because “such caution seems particularly warranted in the face of constitutional complaints against governmental decisions touching the field of international politics”. In the backdrop of this, a lesson to emulate is that challenge of militancy or terrorism or secessionism or organized crimes is a challenge to the internal and external security of the Indian Nation that is Bharat as well as to the sustenance of federalism so well knit under the Constitutional Patriotism. The State machinery must be put into motion by invoking its obligatory part as effectively as the enemies of freedom are not entitled to its blessings as well as mercy. These enemies are the enemies of constitutional democracy, cooperative federal structure and Parliamentary form of governments as contemplated by the Constitution of India. It is, now, imperative to suppress the subversive activities of the militants, terrorists and secessionists in the bud, as it is the right war, with the right enemy, at the right time. It should be logical for sustainable development that what may be legally permissible may not be politically proper, but what may be politically proper may not be legally permissible.

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ARTICLE 35A A RAREST EXAMPLE OF INVISIBLE STATE

Professor Dr. K.L. Bhatia

[Former Head, Dean and founder Director The Law School, Faculty of Law, University of Jammu; Professor National Law University Jodhpur; Director Amity Law School; Dean and Professor Emeritus UPES; UNDP Professor Public Law]

 

Introduction — A revisit to Article 35A read with Articles 370 and 368:

Article 35A is a rarest example of invisible State meddling with the Constitution where it has no constitutional mandate. Article 35A was neither a part of the draft Constitution nor a part of the adopted and enacted Constitution of India. This Article was added to the fundamental rights of the Constitution by a Presidential Order, viz., Constitutional (Application to Jammu and Kashmir) Order 1954 of 14 May 1954 which extended the application of various provisions of the Constitution of India to Jammu Kashmir with such modifications, exceptions and alterations with the concurrence of the government of the State. Article 368 was also extended in its application to the State but with a proviso to the effect that “no such amendment shall have effect in relation to the State of Jammu Kashmir unless applied by order of the President under clause (1) of Article 370”. Be that as it may, from the reading of this provision it cannot be construed that the President of India is empowered to exercise the constituent power of the Parliament under Article 368 to add any provision in the fundamental rights part in its relation to the State of Jammu Kashmir. The CO 1954, which superseded Constitution (Application to Jammu and Kashmir) Order 1950 of 26 January 1950, was issued under the permissible limits of Article 370 — a temporary constitutional provision relating to the State of Jammu Kashmir. Article 370 authorizes the President of India to extend the provisions of the Constitution of India in its relation to the State of Jammu Kashmir as the President may by order specify. Article 370 (1) enjoins four clauses, viz., clauses (a), (b), (c) and (d). Article 370 (1) (a) reads as: “Notwithstanding standing anything in this Constitution, the provisions of Article 238 shall not apply in relation to the State of Jammu and Kashmir”; Article 370 (b) reads as: “ the power of Parliament to make laws for the said State shall be limited to (i) those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for the State”; and (ii) such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify;     Article 370 (1) (c) reads: “the provisions of Article 1 and of this Article (370) shall apply in relation to that State”. Article 370(1)(d) reads: “such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify: Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub-section (b) shall be issued except in consultation with the Government of the State; Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government”.

Legal and Constitutional Construction of Articles 35A vis-à-vis Articles 370 and 368:

A plain reading of the language of Articles 370 and 368, both from legalese-imperative positivist as well as creative or pragmatic or realistic or relativist or social engineering interpretation, conclusively construes that it does not authorize the executive head of the Indian State, i.e., the President, to add by enacting any new provision in the text of the Constitution of India in its relation as well as application to the State of Jammu Kashmir. Of course, the President of India does not perform the constitutional functions entrusted to him himself rather acts with the aid and advise of the Council of Ministers headed by the Prime Minister of India, and as such, the text of the Constitution of India does not authorize the Council of Ministers to render such aid and advise to the President of India by adding any provision in the text of the Constitution of India in its relation and application to the State of Jammu Kashmir which is contrary to the constitutional permissibility. The constituent power to amend by way of addition, variation or repeal any provisions of the Constitution of India belongs to the Parliament under the umbrella of Article 368 and this power is an essential constituent function which cannot be effaced or abdicated or handed down to any other agency of the Government. It amounts to usurpation of constituent power by the executive head (President) of the Indian State. Besides, the continuance retention of Article 238 in the textual language of Article 370 is itself ultra vires the basic structure of the Constitution of India because Article 238 stands repealed by the Constitution Seventh Amendment Act, 1956, by the enactment of Reorganization of States Act, 1956, which had done away with the nomenclature of Part A, Part B and Part C States. It seems a paradox! Further, the soup and sauce of the words ‘dominion of India’ and ‘dominion legislature’ could have been evaporated from the language of Article 370, because India and its Legislature are no more ‘dominion’ of any foreign agency or autochthony since India that is Bharat is the sovereign democratic republic from the adoption and enactment of the Constitution of India.

Constitutional (Application to Jammu and Kashmir) Order 1954 — The mother of Article 35A

Could the President step into the shoes of the Parliament while enacting Article 35-A through Constitutional (Application to Jammu and Kashmir) Order 1954? CO 1954 reads that after Article 35, the following new article shall be added, namely: 35A. Article 35A reads:

Saving of laws with respect to permanent residents and their rights. — Notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu and Kashmir, and no law hereafter enacted by the Legislature of the State, —

  • defining the classes of persons who are, or shall be permanent residents of the State of Jammu and Kashmir; or
  • conferring on such permanent residents any special rights and privileges or imposing upon other persons any as respects –
  • employment under the State Government;
  • acquisition of immovable property in the State;
  • settlement in the State; or
  • right to scholarships and such other forms of aid as the State Government may provide;

 

shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provision of this Part”.

Analysis of Article 35A — Constitutional anomalies: a case for Constitutional Conviviality

The sole object of Article 35A by the Presidential CO 1954 is to provide special rights and privileges to the permanent residents of Jammu Kashmir being citizens of India vis-à-vis the citizens of India, viz., employment in the State Government; acquisition of immovable property; settlement in the State; or scholarships and other forms of aid as per the discretion of the State Government. Article 35A makes a distinction between permanent residents of Jammu Kashmir as citizens of India and citizens of India not being permanent residents of Jammu Kashmir, and refugees from West Pakistan as citizens of India settled in Jammu Kashmir but not being permanent residents of the State of Jammu Kashmir. Both legalese-imperative positivist and creative or pragmatic or realistic or relativist or social engineering interpretation to the language of Article 35A leads to construe that permanent residents of the State of Jammu Kashmir being citizens of India enjoy special fundamental right and privileges within the State and also in any part of the territory of India; citizens of India not being permanent residents of the State enjoy fundamental rights in any part of the territory of India except the State of Jammu Kashmir; refugees from West Pakistan, settled in the State of Jammu Kashmir, not being permanent residents of the State of Jammu Kashmir but being the citizens of India do enjoy the fundamental rights in any part of the territory of India but are deprived to enjoy the rights and privileges within the State of Jammu Kashmir. The provisions of Indian citizenship enjoined in Articles 5 to 11 of Part II of the Constitution of India shall be deemed to have been in relation to the State of Jammu Kashmir as from the 26th day of January 1950 as per CO 1950 and reiterated in CO 1954. The provisions relating to Indian citizenship do not make any of the distinctions as enumerated above. Thus, the classification created by Article 35A suffers from the vice of “intelligible differentia”; this differentia is artificial as it has no rational nexus/relationship with the basic object of the Constitution equality. What is the status of West Pakistani refugees? Are they stateless persons? Being citizens of India they are not stateless persons, but being non-permanent residents of Jammu Kashmir they are worst than stateless persons because they cannot enjoy the rights and privileges as being enjoyed by permanent residents of Jammu Kashmir. Their status is unequal amongst the equals. The basic aim and object of equality is rule against arbitrariness; arbitrariness and equality are sworn enemies to each other and do not see eye to eye each other. Equality is a means to achieve the ends of rule of law to serve the rule of life, which seems to be a naught in the case of refugees of West Pakistan settled in the State of Jammu Kashmir. Had they been settled in any part of the territory of India other than Jammu Kashmir, they ought not to have been the sufferers. In the background of this submission, it appears that Article 35A does not seem to be compatible with the basic feature of the Constitution of India.

The Constitution Bench of the Supreme Court of India in Bachan Lal Kalgotra v. State of Jammu and Kashmir, AIR 19787 SC 1169 had lost the opportunity to explain the constitution truth of Article 35A. It seems that the Apex Court was in oscillation in handing down the correct judicial policy with regard to the interpretation of the language of Article 35A. The vacillation of judicial verdict is clear from the conclusions drawn in the said case which shows that they have “vast undone” approach to the interpretation of Article 35A; it also shows “willing to wound but afraid to hurt” judicial approach; it also unfolds, with due apologetic submission, that the judges of the higher court are right because they are superior, not superior because they are right. The chief contentions in the said case were that refugees from West Pakistan domiciled in Jammu Kashmir State for forty years (now over sixty five years) had been denied permanent resident status in the State of Jammu Kashmir and basic rights of citizenship as available to the permanent residents of Jammu Kashmir, right to acquire immovable property in the State, right to higher technical education and right to be elected to the State Assembly and local bodies. They had sought the permissibility under Article 35A read with section 6 of the Constitution of Jammu Kashmir thereof as permissible to the permanent residents of the State being the citizens of India. In the backdrop of the circumstances, the Apex Court, while dismissing the petition, explained its vacillation in these words:

In view of the peculiar Constitutional position obtaining in the State of Jammu and Kashmir, we do not see what possible relief we can give to the petitioner and those situate like him. All that we can say is that the position of the petitioner and those like him is anomalous and it is up to the Legislature of the State of Jammu and Kashmir to take action to amend legislature, such as, the Jammu and Kashmir Representation of the People Act, the Land Alienation Act, the Village Panchayat Act, etc. so as to make persons like the petitioner who have migrated from West Pakistan in 1947 and who have settled down in the State of Jammu and Kashmir since then, eligible to be included in the electoral roll, to acquire land, to be elected to the Panchayat, etc. This can be done by suitably amending the legislations without having to amend the Jammu and Kashmir Constitution. In regard to providing employment opportunities under the State Government, it can be done by the Government by amending the Jammu and Kashmir Civil Services, Classification of Control and Appeal Rules. In regard to admission to higher technical educational institutions also, the Government may make these persons eligible by issuing appropriate executive directions without even having to introduce any legislation. The petitioners have a justifiable grievance. We are told that they constitute nearly seven to eight per cent of the population of the State of Jammu and Kashmir. In the peculiar context of the State of Jammu and Kashmir, the Union of India also owes an obligation to make some provision for the advancement of the cultural, economic and educational rights of those persons. We do hope that the claims of persons like the petitioner and others to exercise greater rights of citizenship will receive due consideration from the Union of India and the State of Jammu and Kashmir. We are, however, unable to give any relief to the petitioners.

A neat scanning of the judicial oscillating observation shows that how the refugees from West Pakistan domiciled in the State of Jammu Kashmir have been made hapless victims in their own soil which they own close to their heart and soul. What a paradox!

Concluding observation

Let us see how does the Apex Court in a writ petition 2017 challenging the constitutionality of Article 35A vis-à-vis Articles 370 and 368 interpret the language of Article 35A. It shall be an attempt to the expounding of new Constitutional Patriotism Jurisprudence if the Supreme Court ever shall erase the vices of haplessness, constitutional incompatibility with foundational basic feature, inequality, bad classification having no rational nexus with the object of the constitutional law sought to be achieved.

ARTICLE 35A A RAREST EXAMPLE OF INVISIBLE STATE

Professor Dr. K.L. Bhatia

[Former Head, Dean and founder Director The Law School, Faculty of Law, University of Jammu; Professor National Law University Jodhpur; Director Amity Law School; Dean and Professor Emeritus UPES; UNDP Professor Public Law]

 

Introduction — A revisit to Article 35A read with Articles 370 and 368:

Article 35A is a rarest example of invisible State meddling with the Constitution where it has no constitutional mandate. Article 35A was neither a part of the draft Constitution nor a part of the adopted and enacted Constitution of India. This Article was added to the fundamental rights of the Constitution by a Presidential Order, viz., Constitutional (Application to Jammu and Kashmir) Order 1954 of 14 May 1954 which extended the application of various provisions of the Constitution of India to Jammu Kashmir with such modifications, exceptions and alterations with the concurrence of the government of the State. Article 368 was also extended in its application to the State but with a proviso to the effect that “no such amendment shall have effect in relation to the State of Jammu Kashmir unless applied by order of the President under clause (1) of Article 370”. Be that as it may, from the reading of this provision it cannot be construed that the President of India is empowered to exercise the constituent power of the Parliament under Article 368 to add any provision in the fundamental rights part in its relation to the State of Jammu Kashmir. The CO 1954, which superseded Constitution (Application to Jammu and Kashmir) Order 1950 of 26 January 1950, was issued under the permissible limits of Article 370 — a temporary constitutional provision relating to the State of Jammu Kashmir. Article 370 authorizes the President of India to extend the provisions of the Constitution of India in its relation to the State of Jammu Kashmir as the President may by order specify. Article 370 (1) enjoins four clauses, viz., clauses (a), (b), (c) and (d). Article 370 (1) (a) reads as: “Notwithstanding standing anything in this Constitution, the provisions of Article 238 shall not apply in relation to the State of Jammu and Kashmir”; Article 370 (b) reads as: “ the power of Parliament to make laws for the said State shall be limited to (i) those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for the State”; and (ii) such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify;     Article 370 (1) (c) reads: “the provisions of Article 1 and of this Article (370) shall apply in relation to that State”. Article 370(1)(d) reads: “such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify: Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub-section (b) shall be issued except in consultation with the Government of the State; Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government”.

Legal and Constitutional Construction of Articles 35A vis-à-vis Articles 370 and 368:

A plain reading of the language of Articles 370 and 368, both from legalese-imperative positivist as well as creative or pragmatic or realistic or relativist or social engineering interpretation, conclusively construes that it does not authorize the executive head of the Indian State, i.e., the President, to add by enacting any new provision in the text of the Constitution of India in its relation as well as application to the State of Jammu Kashmir. Of course, the President of India does not perform the constitutional functions entrusted to him himself rather acts with the aid and advise of the Council of Ministers headed by the Prime Minister of India, and as such, the text of the Constitution of India does not authorize the Council of Ministers to render such aid and advise to the President of India by adding any provision in the text of the Constitution of India in its relation and application to the State of Jammu Kashmir which is contrary to the constitutional permissibility. The constituent power to amend by way of addition, variation or repeal any provisions of the Constitution of India belongs to the Parliament under the umbrella of Article 368 and this power is an essential constituent function which cannot be effaced or abdicated or handed down to any other agency of the Government. It amounts to usurpation of constituent power by the executive head (President) of the Indian State. Besides, the continuance retention of Article 238 in the textual language of Article 370 is itself ultra vires the basic structure of the Constitution of India because Article 238 stands repealed by the Constitution Seventh Amendment Act, 1956, by the enactment of Reorganization of States Act, 1956, which had done away with the nomenclature of Part A, Part B and Part C States. It seems a paradox! Further, the soup and sauce of the words ‘dominion of India’ and ‘dominion legislature’ could have been evaporated from the language of Article 370, because India and its Legislature are no more ‘dominion’ of any foreign agency or autochthony since India that is Bharat is the sovereign democratic republic from the adoption and enactment of the Constitution of India.

Constitutional (Application to Jammu and Kashmir) Order 1954 — The mother of Article 35A

Could the President step into the shoes of the Parliament while enacting Article 35-A through Constitutional (Application to Jammu and Kashmir) Order 1954? CO 1954 reads that after Article 35, the following new article shall be added, namely: 35A. Article 35A reads:

Saving of laws with respect to permanent residents and their rights. — Notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu and Kashmir, and no law hereafter enacted by the Legislature of the State, —

  • defining the classes of persons who are, or shall be permanent residents of the State of Jammu and Kashmir; or
  • conferring on such permanent residents any special rights and privileges or imposing upon other persons any as respects –
  • employment under the State Government;
  • acquisition of immovable property in the State;
  • settlement in the State; or
  • right to scholarships and such other forms of aid as the State Government may provide;

 

shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provision of this Part”.

Analysis of Article 35A — Constitutional anomalies: a case for Constitutional Conviviality

The sole object of Article 35A by the Presidential CO 1954 is to provide special rights and privileges to the permanent residents of Jammu Kashmir being citizens of India vis-à-vis the citizens of India, viz., employment in the State Government; acquisition of immovable property; settlement in the State; or scholarships and other forms of aid as per the discretion of the State Government. Article 35A makes a distinction between permanent residents of Jammu Kashmir as citizens of India and citizens of India not being permanent residents of Jammu Kashmir, and refugees from West Pakistan as citizens of India settled in Jammu Kashmir but not being permanent residents of the State of Jammu Kashmir. Both legalese-imperative positivist and creative or pragmatic or realistic or relativist or social engineering interpretation to the language of Article 35A leads to construe that permanent residents of the State of Jammu Kashmir being citizens of India enjoy special fundamental right and privileges within the State and also in any part of the territory of India; citizens of India not being permanent residents of the State enjoy fundamental rights in any part of the territory of India except the State of Jammu Kashmir; refugees from West Pakistan, settled in the State of Jammu Kashmir, not being permanent residents of the State of Jammu Kashmir but being the citizens of India do enjoy the fundamental rights in any part of the territory of India but are deprived to enjoy the rights and privileges within the State of Jammu Kashmir. The provisions of Indian citizenship enjoined in Articles 5 to 11 of Part II of the Constitution of India shall be deemed to have been in relation to the State of Jammu Kashmir as from the 26th day of January 1950 as per CO 1950 and reiterated in CO 1954. The provisions relating to Indian citizenship do not make any of the distinctions as enumerated above. Thus, the classification created by Article 35A suffers from the vice of “intelligible differentia”; this differentia is artificial as it has no rational nexus/relationship with the basic object of the Constitution equality. What is the status of West Pakistani refugees? Are they stateless persons? Being citizens of India they are not stateless persons, but being non-permanent residents of Jammu Kashmir they are worst than stateless persons because they cannot enjoy the rights and privileges as being enjoyed by permanent residents of Jammu Kashmir. Their status is unequal amongst the equals. The basic aim and object of equality is rule against arbitrariness; arbitrariness and equality are sworn enemies to each other and do not see eye to eye each other. Equality is a means to achieve the ends of rule of law to serve the rule of life, which seems to be a naught in the case of refugees of West Pakistan settled in the State of Jammu Kashmir. Had they been settled in any part of the territory of India other than Jammu Kashmir, they ought not to have been the sufferers. In the background of this submission, it appears that Article 35A does not seem to be compatible with the basic feature of the Constitution of India.

The Constitution Bench of the Supreme Court of India in Bachan Lal Kalgotra v. State of Jammu and Kashmir, AIR 19787 SC 1169 had lost the opportunity to explain the constitution truth of Article 35A. It seems that the Apex Court was in oscillation in handing down the correct judicial policy with regard to the interpretation of the language of Article 35A. The vacillation of judicial verdict is clear from the conclusions drawn in the said case which shows that they have “vast undone” approach to the interpretation of Article 35A; it also shows “willing to wound but afraid to hurt” judicial approach; it also unfolds, with due apologetic submission, that the judges of the higher court are right because they are superior, not superior because they are right. The chief contentions in the said case were that refugees from West Pakistan domiciled in Jammu Kashmir State for forty years (now over sixty five years) had been denied permanent resident status in the State of Jammu Kashmir and basic rights of citizenship as available to the permanent residents of Jammu Kashmir, right to acquire immovable property in the State, right to higher technical education and right to be elected to the State Assembly and local bodies. They had sought the permissibility under Article 35A read with section 6 of the Constitution of Jammu Kashmir thereof as permissible to the permanent residents of the State being the citizens of India. In the backdrop of the circumstances, the Apex Court, while dismissing the petition, explained its vacillation in these words:

In view of the peculiar Constitutional position obtaining in the State of Jammu and Kashmir, we do not see what possible relief we can give to the petitioner and those situate like him. All that we can say is that the position of the petitioner and those like him is anomalous and it is up to the Legislature of the State of Jammu and Kashmir to take action to amend legislature, such as, the Jammu and Kashmir Representation of the People Act, the Land Alienation Act, the Village Panchayat Act, etc. so as to make persons like the petitioner who have migrated from West Pakistan in 1947 and who have settled down in the State of Jammu and Kashmir since then, eligible to be included in the electoral roll, to acquire land, to be elected to the Panchayat, etc. This can be done by suitably amending the legislations without having to amend the Jammu and Kashmir Constitution. In regard to providing employment opportunities under the State Government, it can be done by the Government by amending the Jammu and Kashmir Civil Services, Classification of Control and Appeal Rules. In regard to admission to higher technical educational institutions also, the Government may make these persons eligible by issuing appropriate executive directions without even having to introduce any legislation. The petitioners have a justifiable grievance. We are told that they constitute nearly seven to eight per cent of the population of the State of Jammu and Kashmir. In the peculiar context of the State of Jammu and Kashmir, the Union of India also owes an obligation to make some provision for the advancement of the cultural, economic and educational rights of those persons. We do hope that the claims of persons like the petitioner and others to exercise greater rights of citizenship will receive due consideration from the Union of India and the State of Jammu and Kashmir. We are, however, unable to give any relief to the petitioners.

A neat scanning of the judicial oscillating observation shows that how the refugees from West Pakistan domiciled in the State of Jammu Kashmir have been made hapless victims in their own soil which they own close to their heart and soul. What a paradox!

Concluding observation

Let us see how does the Apex Court in a writ petition 2017 challenging the constitutionality of Article 35A vis-à-vis Articles 370 and 368 interpret the language of Article 35A. It shall be an attempt to the expounding of new Constitutional Patriotism Jurisprudence if the Supreme Court ever shall erase the vices of haplessness, constitutional incompatibility with foundational basic feature, inequality, bad classification having no rational nexus with the object of the constitutional law sought to be achieved.

KULBHUSHAN SUDHIR JADHAV AND THE RIGHT TO A FAIR TRIAL

Professor Dr. K. L. Bhatia

Former Dean Faculty of Law and the Founder Director The Law School University of Jammu and Professor of Eminence National Law University Jodhpur

Introduction:

We the Indian People of the Republic of India feel happy with the interim verdict — provisional measures — handed down by the International Court of Justice at The Hague on 18 May, 2017 indicating the Islamic Republic of Pakistan that must “take all measures at its disposal” to ensure that Mr. Kulbhushan Sudhir Jadhav, of Indian nationality, is not executed pending a final decision of the ICJ in the case, namely, Affaire Jadhav (India v. Pakistan). We too have been feeling happy listening articulation and oratory full of advocacy acumen by Shri Harish Salve in the case of Kulbhushan Sudhir Jadhav, an Indian national and Indian citizen. We have been equally engulfed and bemused over Islamic Republic of Pakistan’s dismayed presentation that was inasmuch unfair as the trial by Pakistani military court — Court Martial — was unfair, which comprised of an old saying about unfair trial, namely, no vakil, no daleel and no appeal. It may be pertinent to point out that closed trial by military court is conducted against men in uniform (over service members) for violating military laws to maintaining obedience to their command. Military courts — court martial —- have almost no peacetime jurisdiction over non-military personnel. Retired defense personnel are of civilian status and not combatant status.

The Right to a Fair Trial:

The principles of Rule of Law and Equality are imperative to have fair trial in criminal proceedings, because “when there is a goose on the trial side there ought not to be a fox on the jury”. Fair trial in criminal proceedings seems to be a highly intellectual, comprehensive system of thought conveying that the affected person need not carry the impression that he ought to be satisfied with an unjust trial and an unfair appeal. Thus, fairness of justice in theory as well as practice is the core of fair trial in criminal justice process that should respond to the society’s cry for justice against the criminal. The fair trial conveys dispensation of justice in free, fair and fearless trial that unequivocally reflects the code of justice-jurisprudence that “justice should not only be done but should manifestly and undoubtedly be seen to be done.” Justice is rooted in confidence and confidence is destroyed when right-minded people go away thinking the judge was biased.

What had happened to Kulbhushan Sudhir Jadhav’s trial by Pakistani military court apparently appears to be a case of legal fiction, which is contra to the cannons of fair trial. Pakistani military court was ajar to free, fearless and fair trial, that is, no charge, no hearing, no right of habeas corpus, no counsel, no Consular Access, no due process of law and no procedure.

Factual Situation:

Kulbhushan Sudhir Jadhav, an Indian national and Indian citizen, was abducted from Iran and framed fictitiously in Pakistan for doctored charges of spying and indulgence in terrorism activities. The doctored ‘extracted confession’ was used against Kulbhushan Sudhir Jadhav by Pakistani military court. Confession is extracted when it is extracted from the alleged criminal in custody by applying third degree methods by the persons in uniform. The law is confession under duress without free will is no confession. In such circumstances the ‘extracted confession’ is inadmissible at national as well as international judicial process, because such ‘extracted confession’ is against ‘processual (procedural) justice’. It, thus, appears that Pakistani military court moved with premeditated murderous approach that he was presumed to be criminal where there are dim chances to prove innocence. This process goes against all ethos of criminal jurisprudence that alleged criminal is presumed to be innocent unless proved guilty. The judicial process followed by Pakistani military court is against the rules of civility. What one may expect from Pakistani judicial process where a dog is sentenced to death for biting a child — when a dog bites a man there is no news, but when a man bites a dog there is news!

The history of the proceedings at ICJ:

The Republic of India filed a Request for the indication of provisional measures on 8 May 2017, the same day it initiated proceedings against Islamic Republic of Pakistan in a dispute concerning alleged violations of Article 36 of the Vienna Convention on Consular Relations of 24 April 1963 with respect to an Indian national, Mr. Kulbhushan Sudhir Jadhav, sentenced to death in Pakistan by Pakistani military court, namely, Court Martial.

Thus, The ICJ have had to initiate its judicial process keeping into consideration and interpretation of the following contentions raised by two Indian ‘agents’ as well as ‘Counsel’:

  • Right to Consular Access as per Article 36 of the Vienna Convention on Consular Relations of 24 April 1963                                  
  • The Jurisdiction (Compulsory) of the ICJ to entertain the Request
  • Principles of Natural Justice, i.e., procedural safeguards to begin with just ends to arrive at just conclusions
  • Protection of Human Rights under the International Bill of Human Rights, namely, UN Charter, Geneva Conventions on Humanitarian Law, Universal Declaration of Human Rights including International Covenant on Civil and Political Rights as well as Optional Protocol
  • Provisional measures (interim order) till the final disposal of the request by the ICJ

 

 

Findings with reasoning of the ICJ:

Before analyzing the findings and reasoning of the ICJ, it is essentially expedient to comprehend the nature as well as the universality of human rights enshrined in the International Bill of Human Rights, namely, UN Charter, 1945, Geneva Conventions relating to Humanitarian Law and its interrelationship with Human Rights, Universal Declaration of Human Rights, Statutes of ICJ, International Covenants on Civil and Political Rights and Optional Protocol, as these were in proprio vigore presented by the Indian Counsel and refuted by the Pakistani Counsel but relied unanimously by the esteemed Judges of the ICJ. The notion of Human Rights was conceived and conceptualized because “man is born free but ever where he is in chains”. Further, reflections on future of human rights have been expressed by Michael Ignatieff:

“Human rights language exists to remind us that there are some abuses that are genuinely intolerable, and some excuses for these abuses that are genuinely unbearable”.[1]

In the backdrop of the above, it is significant to comprehend what did compel the Indian Representatives — Agents and the Legal Counsel — to present their concern about the values of fundamental human rights, which the Pakistani regime has failed to honour in the unfair trial of Kulbhushan Jadhav. Charter of the United Nations, 1945 makes the policy statement in the Preamble affirming faith in the observation, conservation, preservation and promotion of fundamental human rights. The just ends of fundamental human rights are conceived as the foundational fundamentals of the UN Charter to save succeeding generations of the world. These foundational fundamentals are not mere ipse dixit but realized of the experiences of the follies of the past. It is obligatory for the Member-States of the United Nations to follow in stricto senso the Charter of the United Nations to reaffirm the faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and to promote social progress and better standards of life in larger freedom. Article 1 of the UN Charter enjoins inter alia the purpose of the United Nations to achieve international cooperation in solving international problems and international disputes it is expedient to promote and encourage respect for human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion, in conformity with the principles justice and international law.

The International Court of Justice has been established by the UN Charter as the principal judicial organ of the United Nations for adjustment or settlement of international disputes or situations which might lead to a breach of the peace. Only States — Member-States of the United Nations — may be parties in cases before the ICJ vide Article 34 of the Statutes of the International Court of Justice. Article 36 of the Statutes of the ICJ highlights the nature of ‘compulsory jurisdiction’ of the ICJ in all legal disputes — justiciable disputes, and not political or non-justiciable disputes, concerning:

  • The interpretation of a treaty ;
  • Any question of international law ;
  • The existence of any fact which, if established, would constitute a breach of an international obligation ;
  • The nature or extent of the reparation to be made for the breach of an international obligation.

 

 

In the event of a dispute (legal dispute) as to whether the ICJ has jurisdiction (compulsory jurisdiction as to contentious matters), the matter shall be settled by the decision of the ICJ. Vide article 42, the parties shall be represented by agents and they may have the assistance of counsel or advocate before the Court. Article 60 states that the judgment of the ICJ is final and without appeal. In the event of dispute as to the meaning or scope of the judgment, the Court shall construe it upon the request of any party. Article 61 enjoins that an application for revision of a judgment may be made only when it is based upon the discovery of some fact of such a nature as to be a decisive factor, which fact was, when the judgment was given, unknown to the Court and also to the party claiming revision, always provided that such ignorance was not due to negligence.

Pakistani government and its authorities also denied the protections encompassed in Geneva Conventions, 1949 to the detainee Kulbhushan Sudhir Jadhav. A distinctive feature of the Geneva Conventions, 1949 is their application “with the cooperation and under the scrutiny of the Protecting Power(s)”. The Protecting Power is a neutral body or organization or State to which a party to the conflict or dispute entrusts the protection of its nationals which are or happen to come under the control of another party. The duties incumbent on the Protecting Powers may devolve upon a humanitarian organization which offers all guarantees of impartiality and efficacy, such as the International Committee of the Red Cross (ICRC).

Universal Declaration of Human Rights, 1948 recognizes the inherent dignity and equal and inalienable rights of all members of the human family, which is the foundation of freedom, justice and peace in the world. The genesis of Universal Declaration of Human Rights is the disregard and contempt for human rights which have outraged the conscience of mankind. It is, therefore, essential to promote the development of human rights and to protect human rights by the rule of law. Everyone has the right to life, liberty and security of person (Article 3). No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment (Article 5). Everyone has the right to recognition everywhere as a person before the law (Article 6). All human beings are born free and equal in dignity and rights and everyone is entitled to all the rights and freedoms (Articles 1 and 2). No one shall be subjected to arbitrary arrest, detention or exile (article 9). Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal (Article 10).

International Covenant on Civil and Political Rights, 1966 and Optional Protocol recognize the inherent right to life of every human being (Article 6). Article 6(2) also enjoins that in countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the Covenant and to the Convention on the Prevention and Punishment of the crime of genocide. Vide article 7 no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment and no one shall be subjected without his free consent to medical or scientific experimentation. As per the language of Article 9 of the Covenant everyone has the right to liberty and security of person and no one shall be subjected to arbitrary arrest or detention; no one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge exercising judicial power and shall be entitled to trial. It shall not be the general rule that persons awaiting trial shall be detained in custody. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. Vide article 14 everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law and not to be compelled to testify against himself or to confess guilt.

Article 36 of Vienna Convention on Consular Relations of 24 April 1963 prescribes the conditions or situations for Consular Access. With a view to facilitate the exercise of consular functions relating to the nationals of the sending State who have been arrested or committed to prison or to custody pending trial or is detained in any other manner, Consular Access is imperative. Any communication addressed to the consular post by the person arrested, in prison, custody or detained shall be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights. Consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.

The principles of natural justice were conceded play things by the Pakistani authorities. Pakistani military court at the behest of the Pakistani regime had breached due process of law. Due process of law is sine qua non to ends of just, fair and reasonable trial, such as disclosure of information as to the grounds of exact charges, facilitating assistance of Counsel or advocate, providing Consular Assistance/Access, making available assistance of Protecting Power which offers all guarantees of impartiality and efficacy, right to free and fair public hearing, protection from self-incrimination, and reasoned decision.

In the backdrop of the above, the arguments of the Republic of India were confined to the Compulsory Jurisdiction of the International Court of Justice in terms of Article 36 of the Statutes of ICJ and Article 1 of Optional Protocol thereto, Consular Access within the scope of Article 36 of the 1963 Vienna Convention, Plausibility of the rights under the Vienna Convention, Provisional Measures due to Risk of Irreparable Prejudice and Urgency. Islamic Republic of Pakistan in her counter memorial had averred India’s claims, as usual with Pakistani persona. The ICJ while rejecting the propositions of Pakistani presentations conscientiously in its Order dated 18 May 2017 in Affaire Jadhav (India v. Pakistan) notes its judicious opinion on four parameters:

  • Prima facie jurisdiction
  • The rights whose protection is sought and the measures required
  • Risk of irreparable prejudice and urgency
  • Conclusion and measures to be adopted

 

 

In the background of the above parameters, the ICJ handed down its reasoned decision as follows:

  • The Court recalls that the Applicant seeks to ground its jurisdiction in Article 36, paragraph 1, of the Statute and Article 1 of the Optional Protocol. When the jurisdiction of the Court is founded on particular « treaties and conventions in force »pursuant to Article 36, paragraph 1, of its Statute, « it becomes irrelevant to consider the objections to other possible bases of jurisdiction ». Therefore, any reservations contained in the declaration made by the Parties under Article 36, paragraph 2, of the Statute cannot impede the Court’s jurisdiction specially provided for in the Optional Protocol. Thus, the Court need not examine the reservations further. The Court referred to India v. Pakistan, ICJ Reports 1972, p. 60 ; Nicaragua v. Colombia, ICJ Reports 2007 (II), p. 872.
  • On the question of India’s Consular Assistance to Mr. Jadhav under the Vienna Convention, it is sufficient at this stage to establish prima facie that, on the date of the Application was filed by India, a dispute existed between the Parties as to the question of Consular Assistance under the Vienna Convention with regard to the arrest, detention, trial and sentencing of Mr. Jadhav.
  • On the question whether such a dispute is one over it might have jurisdiction ratione materiae on the basis of Article 1 of the Optional Protocol, the Courts notes that the acts alleged by India are capable of falling within the scope of Article 36, paragraph 1, of the Vienna Convention, which, inter alia, guarantees the right of the sending State to communicate with and have access to its nationals in the custody of the receiving State, as well as the rights of its nationals to be informed of their rights. The Court considers that the alleged failure by Pakistan to provide the requisite consular notification with regard to the arrest and detention of Mr. Jadhav, as well as the alleged failure to allow communication and provide access to him, appear to be capable of falling within the scope of the Vienna Convention ratione materiae. The Court, therefore, considers that there is no sufficient basis to conclude that the 2008 Agreement (vide Article 73 of the Vienna Convention that bilateral agreement would limit the rights contained in Article 36 of the Vienna Convention) prevents it from exercising its jurisdiction under Article 1 of the Optional Protocol over disputes relating to the interpretation or the application of Article 36 of the Vienna Convention. Consequently, the Court considers that it has prima facie jurisdiction under Article 1 of the Optional Protocol to entertain the dispute between the parties.
  • On the question of indication of Provisional Measures pending its decision on the merits thereof, the Court unanimously opined that the power of the Court to indicate provisional measures under Article 41 of the Statute has its object the preservation of the respective rights claimed by the parties in a case. It follows that the Court must be concerned to preserve by such measures the rights which may subsequently be adjudged by it to belong to either party. Therefore, the Court may exercise this power only if it is satisfied that the rights asserted by the party requesting such measures are at least plausible. In its Application, India asserts that the rights it is seeking to protect are those provided by paragraph 1 of Article 36 of the Vienna Convention. The Court cited its Provisional Measures Order of 19 April, 2017 in Ukraine v. Russian Federation. The Court reiterated its observations in the LaGrand case, ICJ Reports 2001, p. 492 :« Article 36, paragraph 1, establishes an interelated regime designed to facilitate the implementation of the system of consular protection. It begins with the basic principle governing consular protection : the right of communication and access (Article 36, para 1(a)). This clause is followed by the provision which spells out the modalities of consular notification (article 36, para 1 (b) ). Finally, Article 36, paragraph 1 (c), sets out the measures consular officers may take in rendering consular assistance to their nationals in the custody of the receiving State ».

 

           

  • In the present case, India was given no access to him and no possibility to communicate with him. India states that it requested consular access to the individual on numerous occasions between 25 March, 2016 and 19 april, 2017, without success. It appears that Mr. Jadhav has not been informed of his rights with regard to consular assistance, Pakistan has failed to provide the requisite notifications without delay, and India and its national have been prevented for all practical purposes from exercising their rights under Article 36 of the Vienna Convention. In view of the Court, taking into account the legal arguments and evidence presented, it appears that the rights invoked by India in the present case on the basis of Article 36, paragraph 1, of the Vienna Convention are plausible.
  • On the issue of the link between the rights claimed and the provisional measures requested, the Court notes that the provisional measures sought by India consist in ensuring that the Government of Pakistan will take no action that might prejudice its alleged rights, in particular that it will take all measures necessary to prevent Mr. Jadhav from being executed before the Court renders its final decision. The Court considers that these measures are aimed preserving the rights of India and of Mr. Jadhav under Article 36, paragraph 1, of the Vienna Convention. Therefore, a link exists between the rights claimed by India and the provisional measures being sought.
  • On the issue of Risk of Irreparable Prejudice and Urgency, the Court, pursuant to Article 41 of the Statute of ICJ, a multo fortiori observes that it has the power to indicate provisional measures when irreparable prejudice could be caused to rights which are the subject of judicial proceedings. In support, the Court cites its Provisional Measures Order of 19 April, 2017 handed down in Ukraine v. Russian Federation, approvingly. Without prejudging the result of any appeal or petition against the decision to sentence Mr. Jadhav to death, the Court considers that, as far as the risk of irreparable prejudice to the rights claimed by India is concerned, the mere fact that Mr. Jadhav is under such a sentence and might therefore be executed is sufficient to determine the existence of such a risk.
  • The Court maintains that there is considerable uncertainty as to when a decision on any appeal or petition (mercy) could be rendered and, if the sentence is maintained, as to when Mr. Jadhav could be executed, Pakistan has indicated that any execution of Mr. Jadhav would probably not take place before the end of August 2017. This suggests that an execution could take place at any moment thereafter, before the Court has given its final decision in the case. The Court also notes that Pakistan has given no assurance that Mr. Jadhav will not be executed before the Court has rendered its final decision. In those circumstances, the Court is satisfied that there is urgency in the present case.
  • The Court adds, with respect to the criteria of irreparable prejudice and urgency, that the fact that Mr. Jadhav could eventually petition Pakistani authorities for clemancy, or that the date of his execution has not yet been fixed, are not per se circumstances that should preclude the Court from indicating provisional measures. In support of its reasoning the Court cites Mexico v. United states of America, Provisional Measures Order of 5 February, 2003, ICJ reports 2003, p. 91.
  • The Court, however, clarifies, that the issues brought before it in this case do not concern the question whether a State is entitled to resort to the death penalty. The Court notes that as it has observed in the past in Germany v. United States of America, ICJ Reports 1999, p. 15 and Mexico v. United states of america, ICJ Reports 2003, p. 89, «  the function of this court is to resolve international legal disputes between States, inter alia, when they arise out of the interpretation or application of international conventions, and not to act as a court of criminal appeal ».
  • The Court concludes from all the above considerations :
  • The conditions required by its Statute for it to indicate provisional measures are met and that certain measures must be indicated inj order to protect the rights claimed by India pending its final decision ;
  • It is appropriate for the Court to order that Pakistan shall take all measures at its disposal to ensure that Mr. Jadhav is not executed pending the final decision in these proceedings and shall inform the Court of all the measures taken in implementation of the present Order ;
  • The Court reaffirms that its Orders on provisional measures under Article 41 of the Statute of the ICJ have binding effect (Germany v. United States of America, ICJ Reports 2001, p. 506) and thus create international legal obligations for any party to whom the provisional measures are addressed ;
  • The Court unanimously indicates that Pakistan shall take all measures at its disposal to ensure that Mr. Jadhav is not executed pending the final decision in these proceedings and shall inform the court of all the measures taken in implementation of the present Order, and further unanimously decides that, until the court has given its final decision, it shall remain seised of the matters which form the subject-matter of this Order.

 

 

In his Concurring Opinion Judge Cancado Trindade appends his opinion into the realm of juridical epistemology to the furtherance of humanizing international law. He proceeds to examine (a) rights of States and of individuals as subjects of international law; (b) presence of rights of States and of individuals together; (c) the right to information on consular assistance in the framework of the guarantees of the due process of law; (d) the fundamental (rather than plausible) human right to be protected: provisional measures as jurisdictional guarantees of a preventive character; (e) the autonomous legal regime of provisional measures of protection; and (f) the humanization of international law as manifested in the domain of consular law.

In the backdrop of this, he observes that the present case “brings to the fore rights of States and of individuals emanating directly from international law” under Article 36(1) of the 1963 Vienna Convention, as related to the U. N. Covenant on Civil and Political Rights. Judge Cancado Trindade a proprio vigore opines that in “contemporary international law, rights of States and of individuals are indeed to be considered altogether, they cannot be dissociated from each other”.

He quotes the pioneering Advisory Opinion of the Inter-American Court of Human Rights on the Right to Information on Consular Assistance in Framework of the Guarantee of the Due Process of Law of 01 October, 1999, and that opinion advances the proper hermeneutics of Article 36(1)(b) of the 1963 Vienna convention, reflecting the impact thereon of the corpus juris of the International Law of Human Rights (ILHR). This indeed puts an end to the “old monopoly of the State of the condition of being subject of rights, and demystifying the constraints of outdated voluntarist positivism.

The Judge Cancado Trindade holds that “the right to information on consular assistance cannot nowadays be appreciated in the framework of exclusively inter-State relations, as contemporary legal science has come to admit that the contents and effectiveness of juridical norms accompany the evolution of time, not being independent of this latter. Thus, article 36(1)(b) of 1963 Vienna Convention, in spite of having preceded in time the provisions of the two U. N. Covenants on Human Rights of 1966, could no longer be dissociated from the international norms of protection of human rights concerning the guarantees of the due process of law and their evolutive interpretation.”

The Judge holds that “States and individuals are subjects of contemporary international law; the crystalisation of the subjective individual rights to information on consular assistance bears witness of such evolution”. The Judge quotes approvingly in express terms the judgment of the ICJ in the cases of Hostages in Tehran, of 15 December, 1979 and Avena and other Mexican Nationals of 31 March, 2004, where it acknowledged the “presence of rights of States and of individuals together” and that “violations of the rights of the individual under Article 36 of the 1963 Vienna Convention may entail a violation of the rights of the sending State, and that violations of the rights of the latter may entail a violation of the rights of the individuals”.

Judge Cancado Trindade thus opines that the present Jadhav case affords yet another occasion tom keep in mind the formation of an opinion juris communist this effect, corresponding to a new ethos of our times. It has thus become indispensable to link, for the purpose of protection, “the right to information on consular assistance with the guarantee of the due process of law” set forth in the instruments of International Law of Human rights (ILHR), and bearing witness of the process of humanization of international law, as manifested in particular also in the domain of consular law nowadays.

The Judge Cancado proceeds that even though the proceedings in contentious case before the ICJ keep on being strictly inter-State ones by “attachment to an outdated dogma of the past”, this in no way impedes that the beneficiaries of protection in given circumstances are human beings themselves, individually or in groups.

The Judge Cancado Trindade in the last part of his Concurring Opinion submits: “The great legacy of the juridical thinking of the second half of the XXthe century has been, by means of the emergence and evolution of the ILHR, the rescue of human beings as subject of the law of nations, endowed with international legal personality and capacity. This was due to the awakening of the universal juridical conscience — the recta ratio inherent to humanity, — as the ultimate material source. That outlook has decisively contributed to the formation, inter alia and in particular, of an opinion juris communis as to the right of individuals, under Article 36(1)(b) of the 1963 Vienna Convention, reflecting the ongoing process of humanization of international law, encompassing relevant aspects of consular relations. Always faithful to this humanist universal outlook, I deem it fit to advance it, in the present Concurring Opinion in the Order that ICJ has just adopted today 18. 05. 2017, in the Jadhav case. The ICJ has, after all, shown awareness that the provisional measures of protection rightly indicated by it in the present Order are aimed at preserving the rights of both the State and the individual concerned under Article 36(1) of the 1963 Vienna Convention. The jurisprudential construction to this effect, thus, to my satisfaction, keeps on moving forward. Contemporary international tribunals have a key role to play in their common mission of realization of justice”.

Judge Bhandari in his Concurring Opinion discusses the four requirements for the indication of provisional measures: (i) prima facie jurisdiction; (ii) plausibility; (iii) real and imminent risk of irreparable prejudice; (iv) the link between the rights claimed on the merits and the provisional measures requested.

After in depth examination, Judge Bhandari concludes that “a clear case has been made out for the indication of provisional measures under Article 41 of the Statute. Consequently, during the pendency of the proceedings before the Court, Mr. Kulbhushan Sudhir Jadhav shall not be executed. In addition to issues of consular relations, this is a case in which it regrettably appears, on preliminary examination of the facts, that the basic human rights of Mr. Jadhav have been violated by not allowing India to have consular access to him after his arrest and during the pendency of the criminal proceedings against him in Pakistan”.

Submissions:

Be that as it may, Pakistan has displayed ‘to be or not to be’ and ‘groping in the dark’ status as a weak as well as fragile State, which has been seen as her dismal performance by the International Watchdog. It discerns that the International Court of Justice gives recognition to jurisdictional guarantees. It undoubtedly recognizes the ‘preventive character of the provisional measures’. It indisputably as well as resolutely says that it is sufficient to note that the provisions of the bilateral agreement vide 2008 Agreement under Article 73 of the 1963 Vienna Convention do not impose expressly limitation on the jurisdiction of the ICJ, and as such, consequently, the Court considers that it has prima facie jurisdiction under Article 1 of the Optional Protocol to entertain the dispute between the Parties. It safeguards the fundamental and non-derogable right to life, liberty and security of a person. It acknowledges respect to ‘due process of law’ as a measure to the right to a fair trial. It emphasizes to following the ‘Consular Access’ and ‘Counsel Assistance of the choice of the detainee’ of the sending State by the receiving State. It gives greater importance to the following of ‘processual justice’ (procedural safeguards) in international disputes. It identifies the risk of ‘irreparable prejudice and urgency’. It appreciates the imperatives of the link between State and individual — both as subjects of international law — to protecting human rights as a corpus juris of international law and practice. It identifies the ‘humanization of international law’ in the realm of International Law of Human Rights (ILHR).

[1] Michael Ignatieff, Human Rights as Politics and Ideology, 2001.

UNITED STATES ADMINISTRATION’S DECLARATION ON TERROR AND ITS SOCIO-LEGAL-POLITICAL RAMIFICATION FOR KASHMIR VALLEY

PROFESSOR DR. K. L. BHATIA

DAAD AND MAX-PLANCK FELLOW AND ALUMNI

FORMER DEAN FACULTY OF LAW AND THE FOUNDER DIRECTOR THE LAW SCHOOL UNIVERSITY OF JAMMU; PROFESSOR NATIONAL LAW UNIVERSITY, JODHPUR; FOUNDER DEAN AND PROFESSOR EMERITUS UPES; DIRECTOR AMITY LAW SCHOOL; UNDP PROFESSOR PUBLIC LAW

 

United States declaring Syed Salahuddin a global terrorist has come as recognition to India’s concern to fight against terrorism jointly globally. The declaration recognizes India’s stature of hard State of 2017 (twenty first century) that is different from 1962 of soft State, namely, India’s physical vitality, economic growth, scientific and technological development, and spiritual strength give enough courage to attitude of powerful nation.

The US declaration unfolds that India’s decision not to resume dialogue with Pakistan is justified. The declaration also unmasks Pakistan sponsored terror on its soil and abetting proxy war against India through JKLF, Hurriyats (both hard core and soft core), Hizbul Mujahiddin, Lashkare-Toibba, etc in Kashmir valley.

US declaration has punctured the azadi or self-determination narrative in Kashmir Valley and endorsed the fact that Kashmir Valley is also the victim of radical Islamic terrorism and Islamic Caliphate.

The declaration shows that India has a mindset to deal with terrorists, militants, secessionists, separatists sternly. US like declarations by other global administrations may have to be taken as strength on our back by isolating the abettor State Pakistan, but India has to increase its weight and hit and punch proportionately. It is time, now, to act against perpetrators as well as protagonists of terrorism externally and internally.

The US declaration has both external as well as internal ramifications. At the outset, it shows international wrath against terrorism and propagators of terrorism. Pakistan is shamed as protagonist and perpetrator of terrorism.

Two pronged strategies are the need of the hour to tackle ticklish war against terrorism and militancy. First, as a weapon of international politics and diplomacy, India has to adopt economic and other recognized blockade modalities against Pakistan. India must stop diplomatic relations with Pakistan. India must put economic blockade against Pakistan such as trade related activities with Pakistan through International borders such as Jammu Kashmir, Punjab, Rajasthan and sea routes. India must seal all its borders — land, air and water — with Pakistan not only to check infiltration of terrorists but also to eliminating the process of hawala money. India must adopt offensive attitude against Pakistan. This process shall be supporting India on its aims and intensions of curbing Pakistan-sponsored terror and seeking diplomatic isolation of Pakistan. This would be hindering Pakistani administration to continue providing political, diplomatic, economic and moral support to the terrorists, militants, secessionists to their specious azadi struggle. This shall convey a strong message to Pakistan to rattle Pakistan to understand that the so called azadi fighters if not true to India where they were born and brought up, how they could be loyal to Pakistan!

Second, the message the US declaration conveys is a clear signal to the secessionists, terrorists, and militants that Jammu Kashmir State is not disputed and belongs to India. The author has unequivocally given vent to on more than one occasions that right from Vishnu Puran to Kalhan’s Rajtarangini to modern history to neu-modern history to the constitution making process that Jammu Kashmir was India’s, is India’s and will be India’s till infinity and eternity. Jammu Kashmir is an integral part of Union of States and its entrenched federal structure which is fons juris of constitutional patriotism.

The US declaration thus is unconditional stating in unequivocal expression that the struggle in the Kashmir Valley is not a freedom (azadi) struggle or the right to self-determination, as claimed by Pakistani administration, but it is terrorism. The US decision recognized that violence in the Valley is officially supported by Pakistan and its local stooges. The reactionaries have had dyed-in-the wool situation and thus called for Kashmir Valley bandh, as usual. The US declaration seems to have given world recognition to India’s claim that Pakistan has been facilitating its soil for subversive, seditious and waging war against the Government of India activities in the Valley.

It is time for India to act as a hard State contra to ‘weak government’ that it is willing to wound but afraid to hurt. It must seal all its borders adjoining Pakistan borders. It must put economic blockade in the valley through land and air ways. It must seal the boundaries of the Valley from all sides to eliminating terrorists, stone pelters, street-demonstrators, and infiltrators.

Besides, India must take strong measures to seize the bank accounts of Hurriyat and co., attach their palatial properties, stop the pension of pension-holders, withdraw the security provided to them and detain them and initiate the process against them for sedition, espionage, and waging war against the Government of India under the law of the land in national interest.

India has had to learn a lesson from Israel. Israel also faced the identical problems on its soil. Israel quelled it by stern actions and the stone pelters and street demonstrators till date had not dared to repeat their activities.

India must learn a lesson from Germany’s Basic Law which has inbuilt provisions to deal with a crisis which might affect the safety and integrity of the whole country. Such provision is tolerated as a necessary evil or as a safety valve in order to save the country and its democratic Constitution itself. Germany when confronted with ‘red army’ (Rote Armed Fraktion — Red Army Fraktion: R. A. F.) of late sixties and seventies , Germany sternly crushed its terrorist and militants activities in 1968 with singular approach that Germany had willing to wound and unafraid to hurt attitude. The human rights activists may wake up from their slumber to challenge State actions. For them Schleyer Kidnapping case (1977) of German Constitutional Court is worth consideration in this perspective with regard to the fight against life-threatening terrorist activities of blackmail. On September 5, 1977, terrorists abducted Dr. Hans Martin Schleyer, President of the German Federation of Industries, after the brutal slaying of his four aides. The kidnappers threatened to execute their hostage if the federal government failed to release from prison eleven of their comrades and ensure their safe exit out of the Federal Republic. When the government refused to comply or succumb to pressures of the terrorists, Schleyer’s son, an attorney, petitioned the Federal Constitutional Court for a temporary injunction urgently needed to avert serious detriment to Basic Rights — fundamental rights – to life arguing that State authorities were obligated to meet the terrorists’ demands, and refusing to do so would be the equivalent of an intentional act against the life and limbs of the abducted person. The Federal Constitutional Court while rejecting the petition emphasized that the Basic Law commits the State to the protection of each human life. This obligation is comprehensive, and it requires the State to protect it from unlawful interference by others, because human life represents a supreme value, the State must take its duty to protect it particularly seriously. Though the precept is mandatory, but the State authorities are basically free to decide how best they should meet their obligation to protect life effectively, and it is their task to decide what protective measures are useful and necessary to guarantee effective protection. The peculiarity of affording protection from life-threatening extortion by terrorists is characterized by the fact that protective measures must adapt to a multitude of unique situations. The Basic Law creates an obligation of the State to protect not just the individual but all citizens as a whole.

From the foregoing, it discerns that the recognition of the larger general national interest and the protection of life of citizenry as a whole are more important than the protection of a single human being’s life. Life-threatening extortion or ransom by the terrorists or militants if succumbed may yield threatening results. Therefore, the Federal Constitutional Court seems to have exercised considerable caution in adjudicating the right to life claim, because “such caution seems particularly warranted in the face of constitutional complaints against governmental decisions touching the field of international politics”.

In the backdrop of this, a lesson to emulate is that challenge of militancy or terrorism or secessionism or organized crimes is a challenge to the internal and external security of the Indian Nation that is Bharat as well as to the sustenance of federalism so well knit under the Constitutional Patriotism. The State machinery must be put into motion by invoking its obligatory part as effectively as the enemies of freedom are not entitled to its blessings as well as mercy. These enemies are the enemies of constitutional democracy, cooperative federal structure and Parliamentary form of governments as contemplated by the Constitution of India. It is, now, imperative to suppress the subversive activities of the militants, terrorists and secessionists in the bud, as it is the right war, with the right enemy, at the right time. It should be logical for sustainable development that what may be legally permissible may not be politically proper, but what may be politically proper may not be legally permissible.           

UNITED STATES ADMINISTRATION’S DECLARATION ON TERROR AND ITS SOCIO-LEGAL-POLITICAL RAMIFICATION FOR KASHMIR VALLEY

PROFESSOR DR. K. L. BHATIA

DAAD AND MAX-PLANCK FELLOW AND ALUMNI

FORMER DEAN FACULTY OF LAW AND THE FOUNDER DIRECTOR THE LAW SCHOOL UNIVERSITY OF JAMMU; PROFESSOR NATIONAL LAW UNIVERSITY, JODHPUR; FOUNDER DEAN AND PROFESSOR EMERITUS UPES; DIRECTOR AMITY LAW SCHOOL; UNDP PROFESSOR PUBLIC LAW

 

United States declaring Syed Salahuddin a global terrorist has come as recognition to India’s concern to fight against terrorism jointly globally. The declaration recognizes India’s stature of hard State of 2017 (twenty first century) that is different from 1962 of soft State, namely, India’s physical vitality, economic growth, scientific and technological development, and spiritual strength give enough courage to attitude of powerful nation.

The US declaration unfolds that India’s decision not to resume dialogue with Pakistan is justified. The declaration also unmasks Pakistan sponsored terror on its soil and abetting proxy war against India through JKLF, Hurriyats (both hard core and soft core), Hizbul Mujahiddin, Lashkare-Toibba, etc in Kashmir valley.

US declaration has punctured the azadi or self-determination narrative in Kashmir Valley and endorsed the fact that Kashmir Valley is also the victim of radical Islamic terrorism and Islamic Caliphate.

The declaration shows that India has a mindset to deal with terrorists, militants, secessionists, separatists sternly. US like declarations by other global administrations may have to be taken as strength on our back by isolating the abettor State Pakistan, but India has to increase its weight and hit and punch proportionately. It is time, now, to act against perpetrators as well as protagonists of terrorism externally and internally.

The US declaration has both external as well as internal ramifications. At the outset, it shows international wrath against terrorism and propagators of terrorism. Pakistan is shamed as protagonist and perpetrator of terrorism.

Two pronged strategies are the need of the hour to tackle ticklish war against terrorism and militancy. First, as a weapon of international politics and diplomacy, India has to adopt economic and other recognized blockade modalities against Pakistan. India must stop diplomatic relations with Pakistan. India must put economic blockade against Pakistan such as trade related activities with Pakistan through International borders such as Jammu Kashmir, Punjab, Rajasthan and sea routes. India must seal all its borders — land, air and water — with Pakistan not only to check infiltration of terrorists but also to eliminating the process of hawala money. India must adopt offensive attitude against Pakistan. This process shall be supporting India on its aims and intensions of curbing Pakistan-sponsored terror and seeking diplomatic isolation of Pakistan. This would be hindering Pakistani administration to continue providing political, diplomatic, economic and moral support to the terrorists, militants, secessionists to their specious azadi struggle. This shall convey a strong message to Pakistan to rattle Pakistan to understand that the so called azadi fighters if not true to India where they were born and brought up, how they could be loyal to Pakistan!

Second, the message the US declaration conveys is a clear signal to the secessionists, terrorists, and militants that Jammu Kashmir State is not disputed and belongs to India. The author has unequivocally given vent to on more than one occasions that right from Vishnu Puran to Kalhan’s Rajtarangini to modern history to neu-modern history to the constitution making process that Jammu Kashmir was India’s, is India’s and will be India’s till infinity and eternity. Jammu Kashmir is an integral part of Union of States and its entrenched federal structure which is fons juris of constitutional patriotism.

The US declaration thus is unconditional stating in unequivocal expression that the struggle in the Kashmir Valley is not a freedom (azadi) struggle or the right to self-determination, as claimed by Pakistani administration, but it is terrorism. The US decision recognized that violence in the Valley is officially supported by Pakistan and its local stooges. The reactionaries have had dyed-in-the wool situation and thus called for Kashmir Valley bandh, as usual. The US declaration seems to have given world recognition to India’s claim that Pakistan has been facilitating its soil for subversive, seditious and waging war against the Government of India activities in the Valley.

It is time for India to act as a hard State contra to ‘weak government’ that it is willing to wound but afraid to hurt. It must seal all its borders adjoining Pakistan borders. It must put economic blockade in the valley through land and air ways. It must seal the boundaries of the Valley from all sides to eliminating terrorists, stone pelters, street-demonstrators, and infiltrators.

Besides, India must take strong measures to seize the bank accounts of Hurriyat and co., attach their palatial properties, stop the pension of pension-holders, withdraw the security provided to them and detain them and initiate the process against them for sedition, espionage, and waging war against the Government of India under the law of the land in national interest.

India has had to learn a lesson from Israel. Israel also faced the identical problems on its soil. Israel quelled it by stern actions and the stone pelters and street demonstrators till date had not dared to repeat their activities.

India must learn a lesson from Germany’s Basic Law which has inbuilt provisions to deal with a crisis which might affect the safety and integrity of the whole country. Such provision is tolerated as a necessary evil or as a safety valve in order to save the country and its democratic Constitution itself. Germany when confronted with ‘red army’ (Rote Armed Fraktion — Red Army Fraktion: R. A. F.) of late sixties and seventies , Germany sternly crushed its terrorist and militants activities in 1968 with singular approach that Germany had willing to wound and unafraid to hurt attitude. The human rights activists may wake up from their slumber to challenge State actions. For them Schleyer Kidnapping case (1977) of German Constitutional Court is worth consideration in this perspective with regard to the fight against life-threatening terrorist activities of blackmail. On September 5, 1977, terrorists abducted Dr. Hans Martin Schleyer, President of the German Federation of Industries, after the brutal slaying of his four aides. The kidnappers threatened to execute their hostage if the federal government failed to release from prison eleven of their comrades and ensure their safe exit out of the Federal Republic. When the government refused to comply or succumb to pressures of the terrorists, Schleyer’s son, an attorney, petitioned the Federal Constitutional Court for a temporary injunction urgently needed to avert serious detriment to Basic Rights — fundamental rights – to life arguing that State authorities were obligated to meet the terrorists’ demands, and refusing to do so would be the equivalent of an intentional act against the life and limbs of the abducted person. The Federal Constitutional Court while rejecting the petition emphasized that the Basic Law commits the State to the protection of each human life. This obligation is comprehensive, and it requires the State to protect it from unlawful interference by others, because human life represents a supreme value, the State must take its duty to protect it particularly seriously. Though the precept is mandatory, but the State authorities are basically free to decide how best they should meet their obligation to protect life effectively, and it is their task to decide what protective measures are useful and necessary to guarantee effective protection. The peculiarity of affording protection from life-threatening extortion by terrorists is characterized by the fact that protective measures must adapt to a multitude of unique situations. The Basic Law creates an obligation of the State to protect not just the individual but all citizens as a whole.

From the foregoing, it discerns that the recognition of the larger general national interest and the protection of life of citizenry as a whole are more important than the protection of a single human being’s life. Life-threatening extortion or ransom by the terrorists or militants if succumbed may yield threatening results. Therefore, the Federal Constitutional Court seems to have exercised considerable caution in adjudicating the right to life claim, because “such caution seems particularly warranted in the face of constitutional complaints against governmental decisions touching the field of international politics”.

In the backdrop of this, a lesson to emulate is that challenge of militancy or terrorism or secessionism or organized crimes is a challenge to the internal and external security of the Indian Nation that is Bharat as well as to the sustenance of federalism so well knit under the Constitutional Patriotism. The State machinery must be put into motion by invoking its obligatory part as effectively as the enemies of freedom are not entitled to its blessings as well as mercy. These enemies are the enemies of constitutional democracy, cooperative federal structure and Parliamentary form of governments as contemplated by the Constitution of India. It is, now, imperative to suppress the subversive activities of the militants, terrorists and secessionists in the bud, as it is the right war, with the right enemy, at the right time. It should be logical for sustainable development that what may be legally permissible may not be politically proper, but what may be politically proper may not be legally permissible.           

UNITED STATES ADMINISTRATION’S DECLARATION ON TERROR AND ITS SOCIO-LEGAL-POLITICAL RAMIFICATION FOR KASHMIR VALLEY

PROFESSOR DR. K. L. BHATIA

DAAD AND MAX-PLANCK FELLOW AND ALUMNI

FORMER DEAN FACULTY OF LAW AND THE FOUNDER DIRECTOR THE LAW SCHOOL UNIVERSITY OF JAMMU; PROFESSOR NATIONAL LAW UNIVERSITY, JODHPUR; FOUNDER DEAN AND PROFESSOR EMERITUS UPES; DIRECTOR AMITY LAW SCHOOL; UNDP PROFESSOR PUBLIC LAW

 

United States declaring Syed Salahuddin a global terrorist has come as recognition to India’s concern to fight against terrorism jointly globally. The declaration recognizes India’s stature of hard State of 2017 (twenty first century) that is different from 1962 of soft State, namely, India’s physical vitality, economic growth, scientific and technological development, and spiritual strength give enough courage to attitude of powerful nation.

The US declaration unfolds that India’s decision not to resume dialogue with Pakistan is justified. The declaration also unmasks Pakistan sponsored terror on its soil and abetting proxy war against India through JKLF, Hurriyats (both hard core and soft core), Hizbul Mujahiddin, Lashkare-Toibba, etc in Kashmir valley.

US declaration has punctured the azadi or self-determination narrative in Kashmir Valley and endorsed the fact that Kashmir Valley is also the victim of radical Islamic terrorism and Islamic Caliphate.

The declaration shows that India has a mindset to deal with terrorists, militants, secessionists, separatists sternly. US like declarations by other global administrations may have to be taken as strength on our back by isolating the abettor State Pakistan, but India has to increase its weight and hit and punch proportionately. It is time, now, to act against perpetrators as well as protagonists of terrorism externally and internally.

The US declaration has both external as well as internal ramifications. At the outset, it shows international wrath against terrorism and propagators of terrorism. Pakistan is shamed as protagonist and perpetrator of terrorism.

Two pronged strategies are the need of the hour to tackle ticklish war against terrorism and militancy. First, as a weapon of international politics and diplomacy, India has to adopt economic and other recognized blockade modalities against Pakistan. India must stop diplomatic relations with Pakistan. India must put economic blockade against Pakistan such as trade related activities with Pakistan through International borders such as Jammu Kashmir, Punjab, Rajasthan and sea routes. India must seal all its borders — land, air and water — with Pakistan not only to check infiltration of terrorists but also to eliminating the process of hawala money. India must adopt offensive attitude against Pakistan. This process shall be supporting India on its aims and intensions of curbing Pakistan-sponsored terror and seeking diplomatic isolation of Pakistan. This would be hindering Pakistani administration to continue providing political, diplomatic, economic and moral support to the terrorists, militants, secessionists to their specious azadi struggle. This shall convey a strong message to Pakistan to rattle Pakistan to understand that the so called azadi fighters if not true to India where they were born and brought up, how they could be loyal to Pakistan!

Second, the message the US declaration conveys is a clear signal to the secessionists, terrorists, and militants that Jammu Kashmir State is not disputed and belongs to India. The author has unequivocally given vent to on more than one occasions that right from Vishnu Puran to Kalhan’s Rajtarangini to modern history to neu-modern history to the constitution making process that Jammu Kashmir was India’s, is India’s and will be India’s till infinity and eternity. Jammu Kashmir is an integral part of Union of States and its entrenched federal structure which is fons juris of constitutional patriotism.

The US declaration thus is unconditional stating in unequivocal expression that the struggle in the Kashmir Valley is not a freedom (azadi) struggle or the right to self-determination, as claimed by Pakistani administration, but it is terrorism. The US decision recognized that violence in the Valley is officially supported by Pakistan and its local stooges. The reactionaries have had dyed-in-the wool situation and thus called for Kashmir Valley bandh, as usual. The US declaration seems to have given world recognition to India’s claim that Pakistan has been facilitating its soil for subversive, seditious and waging war against the Government of India activities in the Valley.

It is time for India to act as a hard State contra to ‘weak government’ that it is willing to wound but afraid to hurt. It must seal all its borders adjoining Pakistan borders. It must put economic blockade in the valley through land and air ways. It must seal the boundaries of the Valley from all sides to eliminating terrorists, stone pelters, street-demonstrators, and infiltrators.

Besides, India must take strong measures to seize the bank accounts of Hurriyat and co., attach their palatial properties, stop the pension of pension-holders, withdraw the security provided to them and detain them and initiate the process against them for sedition, espionage, and waging war against the Government of India under the law of the land in national interest.

India has had to learn a lesson from Israel. Israel also faced the identical problems on its soil. Israel quelled it by stern actions and the stone pelters and street demonstrators till date had not dared to repeat their activities.

India must learn a lesson from Germany’s Basic Law which has inbuilt provisions to deal with a crisis which might affect the safety and integrity of the whole country. Such provision is tolerated as a necessary evil or as a safety valve in order to save the country and its democratic Constitution itself. Germany when confronted with ‘red army’ (Rote Armed Fraktion — Red Army Fraktion: R. A. F.) of late sixties and seventies , Germany sternly crushed its terrorist and militants activities in 1968 with singular approach that Germany had willing to wound and unafraid to hurt attitude. The human rights activists may wake up from their slumber to challenge State actions. For them Schleyer Kidnapping case (1977) of German Constitutional Court is worth consideration in this perspective with regard to the fight against life-threatening terrorist activities of blackmail. On September 5, 1977, terrorists abducted Dr. Hans Martin Schleyer, President of the German Federation of Industries, after the brutal slaying of his four aides. The kidnappers threatened to execute their hostage if the federal government failed to release from prison eleven of their comrades and ensure their safe exit out of the Federal Republic. When the government refused to comply or succumb to pressures of the terrorists, Schleyer’s son, an attorney, petitioned the Federal Constitutional Court for a temporary injunction urgently needed to avert serious detriment to Basic Rights — fundamental rights – to life arguing that State authorities were obligated to meet the terrorists’ demands, and refusing to do so would be the equivalent of an intentional act against the life and limbs of the abducted person. The Federal Constitutional Court while rejecting the petition emphasized that the Basic Law commits the State to the protection of each human life. This obligation is comprehensive, and it requires the State to protect it from unlawful interference by others, because human life represents a supreme value, the State must take its duty to protect it particularly seriously. Though the precept is mandatory, but the State authorities are basically free to decide how best they should meet their obligation to protect life effectively, and it is their task to decide what protective measures are useful and necessary to guarantee effective protection. The peculiarity of affording protection from life-threatening extortion by terrorists is characterized by the fact that protective measures must adapt to a multitude of unique situations. The Basic Law creates an obligation of the State to protect not just the individual but all citizens as a whole.

From the foregoing, it discerns that the recognition of the larger general national interest and the protection of life of citizenry as a whole are more important than the protection of a single human being’s life. Life-threatening extortion or ransom by the terrorists or militants if succumbed may yield threatening results. Therefore, the Federal Constitutional Court seems to have exercised considerable caution in adjudicating the right to life claim, because “such caution seems particularly warranted in the face of constitutional complaints against governmental decisions touching the field of international politics”.

In the backdrop of this, a lesson to emulate is that challenge of militancy or terrorism or secessionism or organized crimes is a challenge to the internal and external security of the Indian Nation that is Bharat as well as to the sustenance of federalism so well knit under the Constitutional Patriotism. The State machinery must be put into motion by invoking its obligatory part as effectively as the enemies of freedom are not entitled to its blessings as well as mercy. These enemies are the enemies of constitutional democracy, cooperative federal structure and Parliamentary form of governments as contemplated by the Constitution of India. It is, now, imperative to suppress the subversive activities of the militants, terrorists and secessionists in the bud, as it is the right war, with the right enemy, at the right time. It should be logical for sustainable development that what may be legally permissible may not be politically proper, but what may be politically proper may not be legally permissible.           v

KULBHUSHAN SUDHIR JADHAV AND THE RIGHT TO A FAIR TRIAL Professor Dr. K. L. Bhatia Former Dean Faculty of Law and the Founder Director The Law School University of Jammu and Professor of Eminence National Law University Jodhpur Introduction: We the Indian People of the Republic of India feel happy with the interim verdict — provisional measures — handed down by the International Court of Justice at The Hague on 18 May, 2017 indicating the Islamic Republic of Pakistan that must “take all measures at its disposal” to ensure that Mr. Kulbhushan Sudhir Jadhav, of Indian nationality, is not executed pending a final decision of the ICJ in the case, namely, Affaire Jadhav (India v. Pakistan). We too have been feeling happy listening articulation and oratory full of advocacy acumen by Shri Harish Salve in the case of Kulbhushan Sudhir Jadhav, an Indian national and Indian citizen. We have been equally engulfed and bemused over Islamic Republic of Pakistan’s dismayed presentation that was inasmuch unfair as the trial by Pakistani military court — Court Martial — was unfair, which comprised of an old saying about unfair trial, namely, no vakil, no daleel and no appeal. It may be pertinent to point out that closed trial by military court is conducted against men in uniform (over service members) for violating military laws to maintaining obedience to their command. Military courts — court martial —- have almost no peacetime jurisdiction over non-military personnel. Retired defense personnel are of civilian status and not combatant status. The Right to a Fair Trial: The principles of Rule of Law and Equality are imperative to have fair trial in criminal proceedings, because “when there is a goose on the trial side there ought not to be a fox on the jury”. Fair trial in criminal proceedings seems to be a highly intellectual, comprehensive system of thought conveying that the affected person need not carry the impression that he ought to be satisfied with an unjust trial and an unfair appeal. Thus, fairness of justice in theory as well as practice is the core of fair trial in criminal justice process that should respond to the society’s cry for justice against the criminal. The fair trial conveys dispensation of justice in free, fair and fearless trial that unequivocally reflects the code of justice-jurisprudence that “justice should not only be done but should manifestly and undoubtedly be seen to be done.” Justice is rooted in confidence and confidence is destroyed when right-minded people go away thinking the judge was biased. What had happened to Kulbhushan Sudhir Jadhav’s trial by Pakistani military court apparently appears to be a case of legal fiction, which is contra to the cannons of fair trial. Pakistani military court was ajar to free, fearless and fair trial, that is, no charge, no hearing, no right of habeas corpus, no counsel, no Consular Access, no due process of law and no procedure. Factual Situation: Kulbhushan Sudhir Jadhav, an Indian national and Indian citizen, was abducted from Iran and framed fictitiously in Pakistan for doctored charges of spying and indulgence in terrorism activities. The doctored ‘extracted confession’ was used against Kulbhushan Sudhir Jadhav by Pakistani military court. Confession is extracted when it is extracted from the alleged criminal in custody by applying third degree methods by the persons in uniform. The law is confession under duress without free will is no confession. In such circumstances the ‘extracted confession’ is inadmissible at national as well as international judicial process, because such ‘extracted confession’ is against ‘processual (procedural) justice’. It, thus, appears that Pakistani military court moved with premeditated murderous approach that he was presumed to be criminal where there are dim chances to prove innocence. This process goes against all ethos of criminal jurisprudence that alleged criminal is presumed to be innocent unless proved guilty. The judicial process followed by Pakistani military court is against the rules of civility. What one may expect from Pakistani judicial process where a dog is sentenced to death for biting a child — when a dog bites a man there is no news, but when a man bites a dog there is news! The history of the proceedings at ICJ: The Republic of India filed a Request for the indication of provisional measures on 8 May 2017, the same day it initiated proceedings against Islamic Republic of Pakistan in a dispute concerning alleged violations of Article 36 of the Vienna Convention on Consular Relations of 24 April 1963 with respect to an Indian national, Mr. Kulbhushan Sudhir Jadhav, sentenced to death in Pakistan by Pakistani military court, namely, Court Martial. Thus, The ICJ have had to initiate its judicial process keeping into consideration and interpretation of the following contentions raised by two Indian ‘agents’ as well as ‘Counsel’: • Right to Consular Access as per Article 36 of the Vienna Convention on Consular Relations of 24 April 1963 • The Jurisdiction (Compulsory) of the ICJ to entertain the Request • Principles of Natural Justice, i.e., procedural safeguards to begin with just ends to arrive at just conclusions • Protection of Human Rights under the International Bill of Human Rights, namely, UN Charter, Geneva Conventions on Humanitarian Law, Universal Declaration of Human Rights including International Covenant on Civil and Political Rights as well as Optional Protocol • Provisional measures (interim order) till the final disposal of the request by the ICJ Findings with reasoning of the ICJ: Before analyzing the findings and reasoning of the ICJ, it is essentially expedient to comprehend the nature as well as the universality of human rights enshrined in the International Bill of Human Rights, namely, UN Charter, 1945, Geneva Conventions relating to Humanitarian Law and its interrelationship with Human Rights, Universal Declaration of Human Rights, Statutes of ICJ, International Covenants on Civil and Political Rights and Optional Protocol, as these were in proprio vigore presented by the Indian Counsel and refuted by the Pakistani Counsel but relied unanimously by the esteemed Judges of the ICJ. The notion of Human Rights was conceived and conceptualized because “man is born free but ever where he is in chains”. Further, reflections on future of human rights have been expressed by Michael Ignatieff: “Human rights language exists to remind us that there are some abuses that are genuinely intolerable, and some excuses for these abuses that are genuinely unbearable”. In the backdrop of the above, it is significant to comprehend what did compel the Indian Representatives — Agents and the Legal Counsel — to present their concern about the values of fundamental human rights, which the Pakistani regime has failed to honour in the unfair trial of Kulbhushan Jadhav. Charter of the United Nations, 1945 makes the policy statement in the Preamble affirming faith in the observation, conservation, preservation and promotion of fundamental human rights. The just ends of fundamental human rights are conceived as the foundational fundamentals of the UN Charter to save succeeding generations of the world. These foundational fundamentals are not mere ipse dixit but realized of the experiences of the follies of the past. It is obligatory for the Member-States of the United Nations to follow in stricto senso the Charter of the United Nations to reaffirm the faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and to promote social progress and better standards of life in larger freedom. Article 1 of the UN Charter enjoins inter alia the purpose of the United Nations to achieve international cooperation in solving international problems and international disputes it is expedient to promote and encourage respect for human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion, in conformity with the principles justice and international law. The International Court of Justice has been established by the UN Charter as the principal judicial organ of the United Nations for adjustment or settlement of international disputes or situations which might lead to a breach of the peace. Only States — Member-States of the United Nations — may be parties in cases before the ICJ vide Article 34 of the Statutes of the International Court of Justice. Article 36 of the Statutes of the ICJ highlights the nature of ‘compulsory jurisdiction’ of the ICJ in all legal disputes — justiciable disputes, and not political or non-justiciable disputes, concerning: a. The interpretation of a treaty ; b. Any question of international law ; c. The existence of any fact which, if established, would constitute a breach of an international obligation ; d. The nature or extent of the reparation to be made for the breach of an international obligation. In the event of a dispute (legal dispute) as to whether the ICJ has jurisdiction (compulsory jurisdiction as to contentious matters), the matter shall be settled by the decision of the ICJ. Vide article 42, the parties shall be represented by agents and they may have the assistance of counsel or advocate before the Court. Article 60 states that the judgment of the ICJ is final and without appeal. In the event of dispute as to the meaning or scope of the judgment, the Court shall construe it upon the request of any party. Article 61 enjoins that an application for revision of a judgment may be made only when it is based upon the discovery of some fact of such a nature as to be a decisive factor, which fact was, when the judgment was given, unknown to the Court and also to the party claiming revision, always provided that such ignorance was not due to negligence. Pakistani government and its authorities also denied the protections encompassed in Geneva Conventions, 1949 to the detainee Kulbhushan Sudhir Jadhav. A distinctive feature of the Geneva Conventions, 1949 is their application “with the cooperation and under the scrutiny of the Protecting Power(s)”. The Protecting Power is a neutral body or organization or State to which a party to the conflict or dispute entrusts the protection of its nationals which are or happen to come under the control of another party. The duties incumbent on the Protecting Powers may devolve upon a humanitarian organization which offers all guarantees of impartiality and efficacy, such as the International Committee of the Red Cross (ICRC). Universal Declaration of Human Rights, 1948 recognizes the inherent dignity and equal and inalienable rights of all members of the human family, which is the foundation of freedom, justice and peace in the world. The genesis of Universal Declaration of Human Rights is the disregard and contempt for human rights which have outraged the conscience of mankind. It is, therefore, essential to promote the development of human rights and to protect human rights by the rule of law. Everyone has the right to life, liberty and security of person (Article 3). No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment (Article 5). Everyone has the right to recognition everywhere as a person before the law (Article 6). All human beings are born free and equal in dignity and rights and everyone is entitled to all the rights and freedoms (Articles 1 and 2). No one shall be subjected to arbitrary arrest, detention or exile (article 9). Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal (Article 10). International Covenant on Civil and Political Rights, 1966 and Optional Protocol recognize the inherent right to life of every human being (Article 6). Article 6(2) also enjoins that in countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the Covenant and to the Convention on the Prevention and Punishment of the crime of genocide. Vide article 7 no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment and no one shall be subjected without his free consent to medical or scientific experimentation. As per the language of Article 9 of the Covenant everyone has the right to liberty and security of person and no one shall be subjected to arbitrary arrest or detention; no one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge exercising judicial power and shall be entitled to trial. It shall not be the general rule that persons awaiting trial shall be detained in custody. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. Vide article 14 everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law and not to be compelled to testify against himself or to confess guilt. Article 36 of Vienna Convention on Consular Relations of 24 April 1963 prescribes the conditions or situations for Consular Access. With a view to facilitate the exercise of consular functions relating to the nationals of the sending State who have been arrested or committed to prison or to custody pending trial or is detained in any other manner, Consular Access is imperative. Any communication addressed to the consular post by the person arrested, in prison, custody or detained shall be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights. Consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action. The principles of natural justice were conceded play things by the Pakistani authorities. Pakistani military court at the behest of the Pakistani regime had breached due process of law. Due process of law is sine qua non to ends of just, fair and reasonable trial, such as disclosure of information as to the grounds of exact charges, facilitating assistance of Counsel or advocate, providing Consular Assistance/Access, making available assistance of Protecting Power which offers all guarantees of impartiality and efficacy, right to free and fair public hearing, protection from self-incrimination, and reasoned decision. In the backdrop of the above, the arguments of the Republic of India were confined to the Compulsory Jurisdiction of the International Court of Justice in terms of Article 36 of the Statutes of ICJ and Article 1 of Optional Protocol thereto, Consular Access within the scope of Article 36 of the 1963 Vienna Convention, Plausibility of the rights under the Vienna Convention, Provisional Measures due to Risk of Irreparable Prejudice and Urgency. Islamic Republic of Pakistan in her counter memorial had averred India’s claims, as usual with Pakistani persona. The ICJ while rejecting the propositions of Pakistani presentations conscientiously in its Order dated 18 May 2017 in Affaire Jadhav (India v. Pakistan) notes its judicious opinion on four parameters: I. Prima facie jurisdiction II. The rights whose protection is sought and the measures required III. Risk of irreparable prejudice and urgency IV. Conclusion and measures to be adopted In the background of the above parameters, the ICJ handed down its reasoned decision as follows: 1. The Court recalls that the Applicant seeks to ground its jurisdiction in Article 36, paragraph 1, of the Statute and Article 1 of the Optional Protocol. When the jurisdiction of the Court is founded on particular « treaties and conventions in force »pursuant to Article 36, paragraph 1, of its Statute, « it becomes irrelevant to consider the objections to other possible bases of jurisdiction ». Therefore, any reservations contained in the declaration made by the Parties under Article 36, paragraph 2, of the Statute cannot impede the Court’s jurisdiction specially provided for in the Optional Protocol. Thus, the Court need not examine the reservations further. The Court referred to India v. Pakistan, ICJ Reports 1972, p. 60 ; Nicaragua v. Colombia, ICJ Reports 2007 (II), p. 872. 2. On the question of India’s Consular Assistance to Mr. Jadhav under the Vienna Convention, it is sufficient at this stage to establish prima facie that, on the date of the Application was filed by India, a dispute existed between the Parties as to the question of Consular Assistance under the Vienna Convention with regard to the arrest, detention, trial and sentencing of Mr. Jadhav. 3. On the question whether such a dispute is one over it might have jurisdiction ratione materiae on the basis of Article 1 of the Optional Protocol, the Courts notes that the acts alleged by India are capable of falling within the scope of Article 36, paragraph 1, of the Vienna Convention, which, inter alia, guarantees the right of the sending State to communicate with and have access to its nationals in the custody of the receiving State, as well as the rights of its nationals to be informed of their rights. The Court considers that the alleged failure by Pakistan to provide the requisite consular notification with regard to the arrest and detention of Mr. Jadhav, as well as the alleged failure to allow communication and provide access to him, appear to be capable of falling within the scope of the Vienna Convention ratione materiae. The Court, therefore, considers that there is no sufficient basis to conclude that the 2008 Agreement (vide Article 73 of the Vienna Convention that bilateral agreement would limit the rights contained in Article 36 of the Vienna Convention) prevents it from exercising its jurisdiction under Article 1 of the Optional Protocol over disputes relating to the interpretation or the application of Article 36 of the Vienna Convention. Consequently, the Court considers that it has prima facie jurisdiction under Article 1 of the Optional Protocol to entertain the dispute between the parties. 4. On the question of indication of Provisional Measures pending its decision on the merits thereof, the Court unanimously opined that the power of the Court to indicate provisional measures under Article 41 of the Statute has its object the preservation of the respective rights claimed by the parties in a case. It follows that the Court must be concerned to preserve by such measures the rights which may subsequently be adjudged by it to belong to either party. Therefore, the Court may exercise this power only if it is satisfied that the rights asserted by the party requesting such measures are at least plausible. In its Application, India asserts that the rights it is seeking to protect are those provided by paragraph 1 of Article 36 of the Vienna Convention. The Court cited its Provisional Measures Order of 19 April, 2017 in Ukraine v. Russian Federation. The Court reiterated its observations in the LaGrand case, ICJ Reports 2001, p. 492 : « Article 36, paragraph 1, establishes an interelated regime designed to facilitate the implementation of the system of consular protection. It begins with the basic principle governing consular protection : the right of communication and access (Article 36, para 1(a)). This clause is followed by the provision which spells out the modalities of consular notification (article 36, para 1 (b) ). Finally, Article 36, paragraph 1 (c), sets out the measures consular officers may take in rendering consular assistance to their nationals in the custody of the receiving State ». 5. In the present case, India was given no access to him and no possibility to communicate with him. India states that it requested consular access to the individual on numerous occasions between 25 March, 2016 and 19 april, 2017, without success. It appears that Mr. Jadhav has not been informed of his rights with regard to consular assistance, Pakistan has failed to provide the requisite notifications without delay, and India and its national have been prevented for all practical purposes from exercising their rights under Article 36 of the Vienna Convention. In view of the Court, taking into account the legal arguments and evidence presented, it appears that the rights invoked by India in the present case on the basis of Article 36, paragraph 1, of the Vienna Convention are plausible. 6. On the issue of the link between the rights claimed and the provisional measures requested, the Court notes that the provisional measures sought by India consist in ensuring that the Government of Pakistan will take no action that might prejudice its alleged rights, in particular that it will take all measures necessary to prevent Mr. Jadhav from being executed before the Court renders its final decision. The Court considers that these measures are aimed preserving the rights of India and of Mr. Jadhav under Article 36, paragraph 1, of the Vienna Convention. Therefore, a link exists between the rights claimed by India and the provisional measures being sought. 7. On the issue of Risk of Irreparable Prejudice and Urgency, the Court, pursuant to Article 41 of the Statute of ICJ, a multo fortiori observes that it has the power to indicate provisional measures when irreparable prejudice could be caused to rights which are the subject of judicial proceedings. In support, the Court cites its Provisional Measures Order of 19 April, 2017 handed down in Ukraine v. Russian Federation, approvingly. Without prejudging the result of any appeal or petition against the decision to sentence Mr. Jadhav to death, the Court considers that, as far as the risk of irreparable prejudice to the rights claimed by India is concerned, the mere fact that Mr. Jadhav is under such a sentence and might therefore be executed is sufficient to determine the existence of such a risk. 8. The Court maintains that there is considerable uncertainty as to when a decision on any appeal or petition (mercy) could be rendered and, if the sentence is maintained, as to when Mr. Jadhav could be executed, Pakistan has indicated that any execution of Mr. Jadhav would probably not take place before the end of August 2017. This suggests that an execution could take place at any moment thereafter, before the Court has given its final decision in the case. The Court also notes that Pakistan has given no assurance that Mr. Jadhav will not be executed before the Court has rendered its final decision. In those circumstances, the Court is satisfied that there is urgency in the present case. 9. The Court adds, with respect to the criteria of irreparable prejudice and urgency, that the fact that Mr. Jadhav could eventually petition Pakistani authorities for clemancy, or that the date of his execution has not yet been fixed, are not per se circumstances that should preclude the Court from indicating provisional measures. In support of its reasoning the Court cites Mexico v. United states of America, Provisional Measures Order of 5 February, 2003, ICJ reports 2003, p. 91. 10. The Court, however, clarifies, that the issues brought before it in this case do not concern the question whether a State is entitled to resort to the death penalty. The Court notes that as it has observed in the past in Germany v. United States of America, ICJ Reports 1999, p. 15 and Mexico v. United states of america, ICJ Reports 2003, p. 89, « the function of this court is to resolve international legal disputes between States, inter alia, when they arise out of the interpretation or application of international conventions, and not to act as a court of criminal appeal ». 11. The Court concludes from all the above considerations : a. The conditions required by its Statute for it to indicate provisional measures are met and that certain measures must be indicated inj order to protect the rights claimed by India pending its final decision ; b. It is appropriate for the Court to order that Pakistan shall take all measures at its disposal to ensure that Mr. Jadhav is not executed pending the final decision in these proceedings and shall inform the Court of all the measures taken in implementation of the present Order ; c. The Court reaffirms that its Orders on provisional measures under Article 41 of the Statute of the ICJ have binding effect (Germany v. United States of America, ICJ Reports 2001, p. 506) and thus create international legal obligations for any party to whom the provisional measures are addressed ; d. The Court unanimously indicates that Pakistan shall take all measures at its disposal to ensure that Mr. Jadhav is not executed pending the final decision in these proceedings and shall inform the court of all the measures taken in implementation of the present Order, and further unanimously decides that, until the court has given its final decision, it shall remain seised of the matters which form the subject-matter of this Order. In his Concurring Opinion Judge Cancado Trindade appends his opinion into the realm of juridical epistemology to the furtherance of humanizing international law. He proceeds to examine (a) rights of States and of individuals as subjects of international law; (b) presence of rights of States and of individuals together; (c) the right to information on consular assistance in the framework of the guarantees of the due process of law; (d) the fundamental (rather than plausible) human right to be protected: provisional measures as jurisdictional guarantees of a preventive character; (e) the autonomous legal regime of provisional measures of protection; and (f) the humanization of international law as manifested in the domain of consular law. In the backdrop of this, he observes that the present case “brings to the fore rights of States and of individuals emanating directly from international law” under Article 36(1) of the 1963 Vienna Convention, as related to the U. N. Covenant on Civil and Political Rights. Judge Cancado Trindade a proprio vigore opines that in “contemporary international law, rights of States and of individuals are indeed to be considered altogether, they cannot be dissociated from each other”. He quotes the pioneering Advisory Opinion of the Inter-American Court of Human Rights on the Right to Information on Consular Assistance in Framework of the Guarantee of the Due Process of Law of 01 October, 1999, and that opinion advances the proper hermeneutics of Article 36(1)(b) of the 1963 Vienna convention, reflecting the impact thereon of the corpus juris of the International Law of Human Rights (ILHR). This indeed puts an end to the “old monopoly of the State of the condition of being subject of rights, and demystifying the constraints of outdated voluntarist positivism. The Judge Cancado Trindade holds that “the right to information on consular assistance cannot nowadays be appreciated in the framework of exclusively inter-State relations, as contemporary legal science has come to admit that the contents and effectiveness of juridical norms accompany the evolution of time, not being independent of this latter. Thus, article 36(1)(b) of 1963 Vienna Convention, in spite of having preceded in time the provisions of the two U. N. Covenants on Human Rights of 1966, could no longer be dissociated from the international norms of protection of human rights concerning the guarantees of the due process of law and their evolutive interpretation.” The Judge holds that “States and individuals are subjects of contemporary international law; the crystalisation of the subjective individual rights to information on consular assistance bears witness of such evolution”. The Judge quotes approvingly in express terms the judgment of the ICJ in the cases of Hostages in Tehran, of 15 December, 1979 and Avena and other Mexican Nationals of 31 March, 2004, where it acknowledged the “presence of rights of States and of individuals together” and that “violations of the rights of the individual under Article 36 of the 1963 Vienna Convention may entail a violation of the rights of the sending State, and that violations of the rights of the latter may entail a violation of the rights of the individuals”. Judge Cancado Trindade thus opines that the present Jadhav case affords yet another occasion tom keep in mind the formation of an opinion juris communist this effect, corresponding to a new ethos of our times. It has thus become indispensable to link, for the purpose of protection, “the right to information on consular assistance with the guarantee of the due process of law” set forth in the instruments of International Law of Human rights (ILHR), and bearing witness of the process of humanization of international law, as manifested in particular also in the domain of consular law nowadays. The Judge Cancado proceeds that even though the proceedings in contentious case before the ICJ keep on being strictly inter-State ones by “attachment to an outdated dogma of the past”, this in no way impedes that the beneficiaries of protection in given circumstances are human beings themselves, individually or in groups. The Judge Cancado Trindade in the last part of his Concurring Opinion submits: “The great legacy of the juridical thinking of the second half of the XXthe century has been, by means of the emergence and evolution of the ILHR, the rescue of human beings as subject of the law of nations, endowed with international legal personality and capacity. This was due to the awakening of the universal juridical conscience — the recta ratio inherent to humanity, — as the ultimate material source. That outlook has decisively contributed to the formation, inter alia and in particular, of an opinion juris communis as to the right of individuals, under Article 36(1)(b) of the 1963 Vienna Convention, reflecting the ongoing process of humanization of international law, encompassing relevant aspects of consular relations. Always faithful to this humanist universal outlook, I deem it fit to advance it, in the present Concurring Opinion in the Order that ICJ has just adopted today 18. 05. 2017, in the Jadhav case. The ICJ has, after all, shown awareness that the provisional measures of protection rightly indicated by it in the present Order are aimed at preserving the rights of both the State and the individual concerned under Article 36(1) of the 1963 Vienna Convention. The jurisprudential construction to this effect, thus, to my satisfaction, keeps on moving forward. Contemporary international tribunals have a key role to play in their common mission of realization of justice”. Judge Bhandari in his Concurring Opinion discusses the four requirements for the indication of provisional measures: (i) prima facie jurisdiction; (ii) plausibility; (iii) real and imminent risk of irreparable prejudice; (iv) the link between the rights claimed on the merits and the provisional measures requested. After in depth examination, Judge Bhandari concludes that “a clear case has been made out for the indication of provisional measures under Article 41 of the Statute. Consequently, during the pendency of the proceedings before the Court, Mr. Kulbhushan Sudhir Jadhav shall not be executed. In addition to issues of consular relations, this is a case in which it regrettably appears, on preliminary examination of the facts, that the basic human rights of Mr. Jadhav have been violated by not allowing India to have consular access to him after his arrest and during the pendency of the criminal proceedings against him in Pakistan”. Submissions: Be that as it may, Pakistan has displayed ‘to be or not to be’ and ‘groping in the dark’ status as a weak as well as fragile State, which has been seen as her dismal performance by the International Watchdog. It discerns that the International Court of Justice gives recognition to jurisdictional guarantees. It undoubtedly recognizes the ‘preventive character of the provisional measures’. It indisputably as well as resolutely says that it is sufficient to note that the provisions of the bilateral agreement vide 2008 Agreement under Article 73 of the 1963 Vienna Convention do not impose expressly limitation on the jurisdiction of the ICJ, and as such, consequently, the Court considers that it has prima facie jurisdiction under Article 1 of the Optional Protocol to entertain the dispute between the Parties. It safeguards the fundamental and non-derogable right to life, liberty and security of a person. It acknowledges respect to ‘due process of law’ as a measure to the right to a fair trial. It emphasizes to following the ‘Consular Access’ and ‘Counsel Assistance of the choice of the detainee’ of the sending State by the receiving State. It gives greater importance to the following of ‘processual justice’ (procedural safeguards) in international disputes. It identifies the risk of ‘irreparable prejudice and urgency’. It appreciates the imperatives of the link between State and individual — both as subjects of international law — to protecting human rights as a corpus juris of international law and practice. It identifies the ‘humanization of international law’ in the realm of International Law of Human Rights (ILHR).

BASIC STRUCTURE THE SAVIOUR OF CONSTITUTION, DEMOCRACY AND THE RULE OF LAW

 BASIC STRUCTURE THE SAVIOUR OF CONSTITUTION, DEMOCRACY AND RULE OF LAW[1]

Professor Dr. K. L. Bhatia

Former Professor of Eminence National Law University, Jodhpur

Former Head and Dean Faculty of Law and founding Director The Law School, University of Jammu; Director Amity Law School; founding Dean and Professor Emeritus UPES; UNDP Professor Public Law

kishoribhatia@rediffmail.com

8716922251

 

The day April 24 is significant in the constitutional development of India, because on this day in 1973 the Supreme Court of India by 7:6 expounded that the Parliament of India does not enjoy infinite powers under Article 368 of the textual Constitution of India to destroy its foundational fundamentals. The foundational values are inherent in the textual Constitution which is not seasonal but permanent those are based on the experiences of the past, encapsulated in the present, and the present binds the posterity for ages. The foundational values constitute India into Sovereign, Socialist, Secular, Democratic, Republic and secures justice, equality, and liberty to promoting fraternity, and to assuring the unity and integrity of the Nation. These foundational fundamentals are the genesis of the basic structure of the textual Constitution. The edifice of the fabric of the basic structure has been under attack right from first amendment to the Constitution to 24th, 25th and 29th amendments to the Constitution, which were in conviviality in Kesavananda Bharathi v. State of Kerala, 1973.

Kesavananda Bharathi’s case is sui generis as it expounds new contours to the constitutional language of Preamble, Fundamental Rights, Directive Principles of State Policy and Amending Power of the Parliament under Article 368. In brevity, the expressions Sovereign, Socialist, Secular, Democratic, Republic constitute India that is Bharat as a Union of States, which make up India as a federal and not unitary as a strong edifice of basic structure that comprises indestructible union of destructible units. This aspect has been comprehensively expounded at length by the Supreme Court in this case.

The cases preceding Kesavananda Bharathi recognized Parliament’s unlimited power to amend any provision of the Constitution. Mostly, the conflict revolved around right to property which could be acquired by the government at her will without paying the just and equivalent compensation as per market value. The word compensation was substituted by the word ‘amount’ which could be paid at government’s will that was arbitrary. Compensation means ‘just and equivalent’ and the word amount means payment by any means which could be arbitrary.

The 17th amendment to the Constitution was contended in Sajjan Singh v. State of Rajasthan, 1965. Justices Mudholkar and Hidayatullaha while delivering the dissenting opinion expressed that there were some fundamental principles of the Constitution which were beyond the amending power of the Parliament. These Justices, however, did not explain the conception of ‘fundamental principles’ and left the answer in great question mark. The 17th amendment, the only amendment, was again contended in I. C. Golaknath v. State of Punjab, 1967. The Supreme Court while taking a cue from the dissenting opinion of two Justices by 6:5 held that transcendental characteristics of fundamental rights could not be disturbed by the Parliament. Again, in R. C. Cooper v. Union of India, 1970, the Supreme Court reiterated that ‘compensation’ appearing in fundamental rights could not be at the caprice and whims of the government and ‘the amount’ could not be construed payment by any means of arbitrary will of the government.

The ruling elite in majority in Parliament, passed 24th, 25th and 29th amendments to the Constitution in order to undo the abovementioned three cases inasmuch the Parliament did by 1st amendment to undo the conception of ‘egalitarianism’ enjoined in the original constitutional language of Article 15 of the Constitution. These amendments were challenged in all the six writ petitions under Article 32 of the Constitution involving common questions as to the validity of these three amendments, which affected fundamental rights under Articles 25, 26, 14, 19(1) (f) and 31 (as it stood before 44th amendment of the constitution that repealed fundamental right to property and inserted Article 300-A in its place). The contentious amendments were pertinent inasmuch as that nothing shall apply to any amendment of this Constitution under Article 368. The contentious amendments enabled the Parliament to dilute fundamental rights through amendments to the Constitution. And, above all, the constitutional amendments could not be a question of challenge in the Courts. The petitioner, who lent his name for the presentation of the petition, was presented by a court room genius Shri Nani A. Palkhiwala, who contended that the amendments be declared unconstitutional, ultra vires and void as these amendments disturbed the basic identity or basic structure of the constitution. His contention was based on the thesis of a German scholar Professor Dr. D. Conrad who penned down the thesis of basic structure inasmuch as that the German Basic Law and its basic structure could not be destroyed and this thesis was based on the experiences of dictatorial attitude during the black days of Second World War. The Supreme Court was called upon to do complete justice and as such the basis of arguments seemed to be on the classic and genius statement of Justice Vivian Bose, one of the earliest Justices of the Apex Court as far back as 1954, namely, “We have upon us the whole armour of the Constitution and walk henceforth in its enlightened ways, wearing the breast plate of its protecting provisions and flashing the flaming sword of its inspiration”.

In the background of the above, the Supreme Court decided Kesavanada Bharathi case on 24 April, 1973, with hair-thin majority 7:6, consisting of 703 pages, culled out in summary signed by 9 Justices out of 13 Justices, has saved Indian democracy, as a basic feature of the Constitution, by expounding the genesis of basic structure. The Supreme Court expounded that Parliament could amend any part of the Constitution so long as it did not alter or amend “the basic structure or essential features of the Constitution”. The Supreme Court cautioned the Parliament not to play with the sacred Constitution as a play thing. “Amend as you may even the solemn document which the founding fathers have committed to your care, for you know best the needs of your generations. But, the Constitution is a precious heritage; therefore, you cannot destroy its identity”. This was the implied or inherent limitation on the amending power of Parliament encapsulated in Article 368. This encapsulates that Parliament does not enjoy infinite power to amend the Constitution if it amounts to destroy the basic feature of the Constitution. Had it not been there, the supremacy of the Constitution could have been the prey of authoritarianism or autocratic democracy rule which could have been detrimental to Rule of Law to sustain Rule of Life. In the backdrop of this, basic structure is fundamental foundation somewhat like a Magna Carta which would be unalterable. It seems that the expounding of basic structure solely makes our Constitution living or living organism. The Superior Court has expounded the basic structure that binds the posterity for ages to come inasmuch as the great Chief Justice Marshal in Marbury v. Madison, 1803, for salt and vinegar in his wounds espoused the literary legal language of expounding philosophy: “… never forget that it is a constitution we are expounding … (but) a constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs”.

Had there not been Kesavananda Bharathi case there could have been autocratic democracy. Shakespeare writes:

            “O, it is excellent

            To have a giant’s strength, but is tyranneous

            To use it like a giant.”

__

[1] This is the revised version of author’s lecture “Basic Structure: Constitution, Constitutional Law and Constitutionalism” delivered at the COLS, University of Petroleum and Energy Studies, Dehradun, on 11 April, 2016.

Preamble: Spirit of the Constitution

Preamble: Spirit of the Constitution[1]

Professor Dr. K. L. Bhatia

B.A. (Hons); LL.M., Ph.D.(Pune)

DAAD and MAX-PLANCK Fellow and Alumni

Former Professor of Eminence, National Law University, Jodhpur

Former Head and Dean Faculty of Law, founder Director The Law School

University of Jammu

Jammu.

 

As Constitution is the conscience of our Nation India that is Bharat so is the Preamble as the conscience of our Constitution. Our Constitution’s spirit is the Preamble, which is the Backbone of our Constitution.

It is the guiding spirit for Indian Nation on the touchstone of Basic Features of our Constitution.

Preamble indicates the language and expressions of the Constitution as its Vision- Mission and not in a rigid or exhaustive sense.

Preamble

We the people of India having solemnly resolved to Constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCTATIC REPUBLIC and to secure to all its citizens:

JUSTICE, social, economic and political;

LIBERTY of thought, expression, belief, faith and worship;

EQUALTY of status and opportunity and to promote among them all

FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;

IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSITUTION.

The Preamble is not a mere solemn resolution; it is something more than a resolution. It is declaration; it is a firm resolve; it is a pledge and an understanding. It is not a spirit of narrow legal wording, but a majestic expression of constitutional morality, constitutional polity and constitutional culture. It is an expression of dedication to the people of India. The Preamble, in fact, is the very life-breath of the Constitution which the founder-authors have framed. Its dedication to the people of India unequivocally speaks about the sovereignty of the people of India; viz., the sovereignty will vest in the whole body of people of India. The founder-authors expressed that the sovereignty of the people of India will not be bartered away or bargained in the name of Commonwealth; it does not vest in any foreigner. Sovereignty does not vest even in the Government. Government only represents the people of India. Acharya J. B. Kriplani expounded the genesis of the preamble which encapsulates also the genesis of basic feature philosophy for the future emulation. His eloquent words were:

… What we have stated in this Preamble are not legal and political principles only. They are also great moral and spiritual principles and if I may say so, they are mystic principles. In fact these were not first legal and constitutional principles, but they were really spiritual and moral principles. … Take democracy. What is it? It implies the equality of man, it implies fraternity. Above all it implies the great principles of non-violence. How can there be democracy where there is violence? Even the ordinary definition of democracy is that instead of breaking heads, we count heads. … If we want to use democracy as only a legal, constitutional and formal device, I submit, we shall fail. As we have put democracy at the basis of our Constitution, I wish that the whole country should understand the moral, the spiritual and the mystic implication of the word “democracy”. If we have not done that, we shall fail as they have failed in other countries. Democracy will be made into autocracy and it will be made into imperialism, and it will be made into fascism. But as a moral principle, it must be lived in life. It is not lived in life, and the whole of it in all its departments, it becomes only a formal and a legal principle. We have got to see that we live this democracy in our life. It would be inconsistent with democracy to have it only in the legal and political field. Politically, we are a democratic people but economically we are divided into such classes that the barriers cannot be cross. If we have got to be democratic we have got to be economically so too.

I also say democracy is inconsistent with caste system. That is social aristocracy. We must do away with castes and classes, otherwise we cannot swear by democracy. And we must remember that economic democracy does not merely mean that there should be no classes, that there should be no rich and poor; but the State itself should live in a manner that is consistent with the life of the poor, if people happen to be poor. It is not economic equality if for pomp and pageant; we spend thousands and lakhs of rupees. It is again not democracy if at every corner of the Government House human beings are made to stand statue like and unmoving. Such things are against the dignity of the individuals. If we establish democracy, we have to establish it in the whole of our life, in all its departments, whether it be in administration, or in society or in the economic field. This we must know and understand.

Then we have said that we will have liberty of thought, expression, belief, faith and worship. … All these freedoms can only be guaranteed on the basis of non-violence. … But there is mental violence. We have to respect it as having an element of truth. No religion in the world is perfect, and yet there is no faith without some element of God’s truth.

Then we have said that there should be equality of status and opportunity. This implies that in our public affairs, we should be absolutely above board; that there should be no nepotism, there should be no favoritism; there should be no “mine” and “not mine”. … We can give equality of opportunity and equality of status only when what is considered as “Ours” is put behind and what is considered as “Not Ours” is put before. Unless we do these things, we will not be able to fulfill the aims of our Constitution.

Again I come to the great doctrine of fraternity which is allied with democracy. It means that we are all sons of the same God, as the religious would say but as the mystic would say that there is one life pulsating through us all. … What we have enunciated are not merely legal, constitutional and formal principles, but moral principles; and moral principles have got to be lived in life. They have to be lived whether it is private life or it is public life, whether it is commercial life, political life or the life of an administrator. They have to be lived throughout. These things, we have to remember if our Constitution is to succeed.

… We have to remind ourselves that we are here as the representatives of the people. We have to remind ourselves that we are the servants of the people. We often forget that we are here in a representative capacity. We often forget that we are the servants of the people. It always happens that our language, because of our thoughts and actions, gives little countenance to this basic idea. … Therefore, on this solemn occasion, it is necessary to lay down clearly and distinctly that sovereignty resides in and flows from the people.

Mr. Naziruddin Ahmed in his eloquent expression responded that “on the actual working of democracy its success depends.”

Dr. B. R. Ambedkar in his concluding remarks on the Preamble expressed with elocution:

… The general intention of the House, viz. that this Constitution should emanate from the people and should recognize that the sovereignty to make this Constitution vests in the people. … The Preamble falls into three distinct parts. There is one part which is declaratory. The second part is descriptive. The third part is objective and obligatory. Now, the declaratory part consists of the phrase: “We the people of India, in our Constituent Assembly, day, this month … do hereby adopt enact and give to ourselves Constitution”. Does this Constitution say or does this Constitution not say that the Constitution is ordained, adopted and enacted by the people. I think anybody who reads its plain language, not dissociating it from other parts, namely, the descriptive and the objective, cannot have any doubt that is what the Preamble means. … Does this Constitution or does it not acknowledge, recognize and proclaim that it emanates from the people? I say it does. … As most Members know that United States Constitution was drafted by a very small body of 13 States which met at Philadelphia to draw up the Constitution. Therefore, if the representatives of 13 States assembled in a small conference in Philadelphia could pass a Constitution and say that what they did was in the name of the people, on their authority, basing on it their sovereignty. I personally myself, do not understand unless a man was an absolute pedant that a body of people 292 in number, representing this vast continent, in their representative capacity, could not say that they are acting in the name of the people of this country. … No person in this House desires that there should be anything in this Constitution which has the remotest semblance of its having been derived from the sovereignty of the British Parliament. Nobody has the slightest desire for that. In fact we wish to delete every vestige of the sovereignty of the British Parliament such as it existed before the operation of this Constitution. There is no difference of opinion between any Member of this House and any Member of the Drafting Committee so far as that is concerned. … This Preamble embodies what is the desire of every Member of the House that this Constitution should have its root, its authority, its sovereignty, from the people.

 

It is, therefore, the backbone of the complete edifice of the Constitution. It shapes the Constitution into a dynamic document. It mirrors the inner theme of the Constitution. The phrase or expression “We the People of India” reflects the source and authority for drawing up the Constitution. It is a statement of objects, aims and philosophy of the Constitution and its makers. The Preamble is considered a key to open the mind of the Constitution makers and is a guide to interpretation of the provisions of the Constitution.[2] It is a part of the textual Constitution embodying the experiences of its authors; it is the genesis of the Constitution. The opening words of the Preamble “We the People of India” made it unequivocally clear that the Constitution has emanated from the people of India and not from any external authority (British Parliament or crown of England) or any less authority than the people of India. Its poetry in prose language is undoubtedly a masterpiece of uniqueness encompassing the quintessence of the basic features of the basic structure of the edifice on which the Constitution of India is built. Sovereign, secular, socialist, democratic, republic, justice, equality, liberty, fraternity, dignity of the individual and unity and integrity of the Nation are entrenched as immutable basic structure of the edifice of the Constitution of India.

 

[1] This is a part of my speech on Constitution Day 26 November 2015 delivered on 28 November 2015 at Jammu. This is in memoriam of Dr. B. R. Ambedkar, an architect of the Constitution of India, and in commemoration of the adoption and enactment of the Constitution of India.

[2]In re Berubari Union and Exchange of Enclaves, A.I.R. 1960 S.C. 845; Kesavananda Bharati v. State of Kerala, A.I.R. 1973 S.C. 125.

Reservation in promotion

Reservation in Promotion: A Critique on Ashok Kumar v. State of J&K

Professor Dr. K. L. Bhatia

(Former Professor of Eminence National Law University Jodhpur; Head, Dean and founding Director The Law School University of Jammu)

kishoribhatia@rediffmail.com

Without prejudice, the decision of the Hon’ble High Court of Jammu and Kashmir in Ashok Kumar v. State of J&K (9 October 2015) has some infirmities because it’s overreach and encouragement to pleas on Articles 370, 35-A of the Constitution of India and Constitutional (Application to Jammu and Kashmir) Order, 1954. The controversy raised in this case is succinctly crystallised: “Whether in light of the Apex Court judgment in Indra sawhney v. Union of India, 1992, which prohibits reservation in matters of promotion, provisions of J&K Reservation Act, 2004 and the Rules framed thereunder can be enforced in the absence of the applicability of Article 16(4A) of the Constitution of India to the State of J&K?” Should the pleas other than the controversy be insisted on delusive exactness?

The first infirmity is reference to the Government of India Act, 1935 and the Indian Independence Act, 1947. Both these legislations are no more on the statutory books of India since they stand repealed under Article 395 of the Constitution of India from the date of adoption and enactment (26 November 1949) and enforcement (26 January 1950) of the Constitution of India. Constitution of J&K was adopted on 17 November 1956, signed by the Members of the J&K Constituent Assembly on 19 November 1956 and came into force on 26 January 1957 and resolutely mentioned that accession of the State with the Union of India was final, irrevocable, immutable and irreversible and the State is an integral part of the Union of India in its Preamble and Section 3. Constitutional (Application to Jammu and Kashmir) Order 1954 mentioned “Omitted” against Article 395 in its application to the State which could be interpreted as ‘Omitted’ in its application to J&K, meaning thereby that 1935 and 1947 Acts “Omitted” in application to J&K. In my humble submission, the plea and entertainment could have been impermissible because of its otherwise permutation and combination like going back to pre-1947 position which seems to be unfortunate. What Article 35-A, added by Constitutional (Application to Jammu and Kashmir) 1954, has to do with ‘reservation in promotion’? Article 35-A is subjudice and itself is debatable on the important questions of constitutional law vis-a-vis basic structure.

Prolific plea on “Instrument of Accession” is the second infirmity. Accession of the State with the Union of India is decisive and any plea or argument or presentation on it is not tantamount within the framework and structure of the Constitution, because, in the words of Dr. B. R. Ambedkar, on the floor of the Constituent Assembly of India, the Instrument of Accession shall hereinafter be a matter of past history. And, past history is dead inasmuch as deadwood and, therefore, any reference to it after the adoption and commencement of the Constitution of India shall not be encouraged to be reopened on any forum including the higher judiciary in national interest. Besides, there is a basic difference between accession and merger. Accession is in case of a princely State with the sovereignty of the Union of India; merger and acquisition is the consequence of an agreement that happens in case of a company with another company under the Companies Act and any reference to it shall be against unity and integrity of the Indian Nation. Unity and integrity of the Union of India is the basic structure of organic federalism where the States are interdependence on each other and not independent from each other and strive to promote amity and mutual respect for each other for the development and progress of Indian Nation.

Third infirmity concerns about the misconception of Article 16(4), (4A) and (4B). Reservation is an affirmative action and Articles 14, 15(4), 15(5), 16(4) (4A) (4B) form the complete code of affirmative action of the State not only on the basis of caste based ‘historical injustice’ or ‘historical prejudices’, but as a palliative action for the advancement of Socially and Educationally Backward Classes of the Citizens of India including scheduled Castes and Scheduled Tribes in matters of admission and public appointment and employment and consequential promotion. Articles 16(4A) and 16(4B) flow from Article 16(4) of the Constitution, and do not alter the structure of Article 16(4) of the Constitution. Section 6 of Jammu and Kashmir Reservation Act, 2004 read with Articles 16(4), 16(4A) 16(4B) do not wipe out any of the constitutional requirements such as ceiling limit and the concept of creamy layer and Scheduled Castes, Scheduled Tribes and Backward classes, as was held in Indra Sawhney case and reiterated in M. Nagaraj case (2006) and Suraj Bhan Meena v. State of Rajasthan (2011). Articles 14, 15, 16 form the structure of ‘equality’ as a magnum opus of the Constitution, and Articles 14, 15(4), 15(5), 16(4), 16(4A) and 16(4B) are the gospel of reservation as affirmative or palliative action of the State. Section 6 of J&K Reservation Act, 2004 from this perspective is an affirmative action or palliative action of the State. These Articles are inclusive to each other and not exclusive from each other is the message of the Apex Court in Maneka Gandhi case (1978). To say that Articles 16(4A) and 16(4B) have not been extended to the State of J&K by a Presidential Order under Article 370 shall be retrograde of Apex Court’s decisions in Maneka Gandhi and the ratio of Suraj Bhan Meena and Ram Singh v. Union of India (2015) and other identical cases. Reservation in promotion is impermissible unless it is justifiably identified that there is backwardness, inadequacy of representation in the higher cadre and eradication of inefficiency by providing reservation in promotion to improving efficiency in the administration. The State government has identified Scheduled Castes, Scheduled Tribes, Residents of Backward Area (RBA), Actual Line of Control (ALC) and Social Castes (Weak and Under Privileged) as reserved categories for the benefits of affirmative action of the State for the purposes of Articles 15 and 16 to make rule of law to serve the rule of life. RBA, ALC and Social Castes have been identified as socially and educationally backward classes. It is submitted that the important issue of reservation in promotion could have been decided on the parameters of backwardness, inadequacy of representation and improving efficiency devised by the Apex Court in the significant decisions cited above and any other issue allowed to steal march over Articles 16(4), 16(4A) and 16(4B) does not seem to be an added attraction.

 

Rape an assault on the dignity of woman

Rape an Assault on the Individuality and Inherent Dignity of a Woman: Judicial Message in State of M. P. V. Madanlal (2015)

Professor Dr. K. L. Bhatia

B.A. (Hons); LL.M. , Ph.D. (Pune)

DAAD and Max-Planck Fellow and Alumni

(Former Professor of Eminence, NLU Jodhpur; Head and Dean Faculty of Law and founding Director The Law School, University of Jammu; Director Amity Law School; Dean and Professor Emeritus University of Petroleum and Energy Studies; UNDP Professor Public Law)

 

The Apex Court of India in a path breaking judgment in State of M. P. v. Madanlal[1] has disseminated a humane message that rape in not only an assault on the physic or body of the woman, but it is an assault on her individuality and inherent dignity. The trial courts or appellate courts dealing with cases like rape must be cautious and diligent that the resultant affect should not seem to “rupture the sense of justice and punctures the criminal justice dispensation system”.[2]

The sole question called in the matter relates to the legal acceptability of the judgment and order passed by the learned Single Judge of the High court of Madhya Pradesh setting aside the conviction and sentence of rigorous imprisonment of 5 years imposed by the learned sessions Judge (Trial Court) under section 376 (2) (f) read with section 511 of the Indian Penal Code. It seemed that the learned Single Judge of the High Court of Madhya Pradesh has been influenced by the compromise that has been entered into between the accused and the parents of the victim of rape as the victim was a minor. It also seemed that the learned trial judge had rightly rejected the ‘compromise application’ on the ground that the offence of rape is a non-compoundable offence inasmuch as the offence of rape is an offence against the society and as such it cannot be left to the parties to compromise and settle such heinous offence under influential approaches. The Supreme Court, therefore, has been inclined to set aside the judgment of the High Court and has addressed the rape offence in the context of human dignity and humane individuality of the woman/girl who is the victim of the male brutality. Human dignity and humane individuality seem to be an expanding aspect of life and liberty of the rape victim woman and any compromise in this perspective seems to a vulturous intrusion in the human dignity and individuality of the rape victim woman. Though the constitutional rights of human dignity, life and liberty were not directly in conviviality, but the Apex Court, overtly or covertly, deemed it expedient to profitably reiterate the constitutional rights of the rape victim by revisiting Shimbhu v. State of Haryana[3] :

“Further, a compromise entered into between the parties cannot be construed as a leading factor based on which lesser punishment can be awarded. Rape is a non-compoundable offence and it is an offence against the society and is not a matter to be left for the parties to compromise and settle. Since the Court cannot always be assured that the consent given by the victim in compromising the case is a genuine consent, there is every chance that she might have been pressurised by the convicts or the trauma undergone by her all the years might have compelled her to opt for a compromise. In fact, accepting this proposition will put an additional burden on the victim. The accused may use all his influence to pressurise her for a compromise. So, in the interest of justice and to avoid unnecessary pressure/harassment to the victim, it would not be safe in considering the compromise arrived at between the parties in rape cases to be a ground for the Court to exercise the discretionary power under the proviso to Section 376 (2) IPC.”

It discerns that in a case of rape or attempt of rape, the conception of compromise under no circumstances can be thought of. Rape is a crime not only against the body of a woman but it is a crime against her reputation, dignity, individuality and personality that may sometimes consequently make her life without life like Shanbaug case[4] , a victim of rape, who remained unconscious effectuated due to deep shock and trauma as an eventuality of the commission of rape crime and died while in vegetation-unconscious state for over three decades.

The case under scanning is a salutary one, but, indeed, a path breaking decision of the apex court that shall go a long way in the judicial history of India as a judicial gospel in the recognition of rape victim’s honour, dignity, respect, individuality and personality, which “is a salutary thought that the summit Court should not interpret constitutional rights enshrined in Part III to check its life breadth or chill its elan vital by processes of legalism, overruling the enduring values burning in the bosoms of those who won our independence and drew up our founding document”.[5]

In the backdrop of the above, the Apex Court has handed down humane message in these classic words:

“These are crimes against the body of a woman which is her temple. These are offences which suffocate the breath of life and sully the reputation. And reputation, needless to emphasise, is the richest jewel one can conceive of in life. No one would allow it to be extinguished. When a a human frame is defiled, the “purest treasure” is lost. Dignity of a woman is a part of her non-perishable and immortal self and no one should ever think of painting it in clay. There cannot be a compromise or settlement as it would be against her honour which matters the most. It is sacrosanct. Sometimes solace is given that the perpetrator of the crime has acceded to enter into wedlock with her which is nothing but putting pressure in an adroit manner; and we say with emphasis that the Courts are to remain absolutely away from this subterfuge to adopt a soft approach to the case, for any kind of liberal approach has to be put in the compartment of spectacular error. Or to put it differently, it would be in the realm of a sanctuary of error. We are compelled to say so as such an attitude reflects lack of sensibility towards the dignity, the elan vital, of a woman. Any kind of liberal approach or thought of mediation in this regard is thoroughly and completely sans legal permissibility.”

 

In the backdrop of the above, it unequivocally discerns that respect of reputation of woman is the genesis of civility in a civilised society that “no member of society can afford to conceive the idea that he can create a hollow in the honour of a woman. Such thinking is not only lamentable but also deplorable.”[6] A woman ought not to be a play thing in the hands of a man and any thought of sullying her physical and mental frame shall be construed as the demolition of her overall morality as a person.

Be that as it may, the Apex court’s decision in the case under scanning is its nimble and dexterous law-morality legal cosmology approach in the recognition of constitutional rights of a woman.

[1] SLP No. 5273 of 2012 decided on 1 July (2015).

[2] Id. at para 15.

[3] (2014) 13 SCC 318.

[4] Aruna Ramchandra Shanbaug v. Union of India, AIR 2011 SC 1290.

[5] Vide Justice V. R. Krishna Iyer in Maneka Gandhi v. Union of India, AIR 1978 SC 597.

[6] See Shyam Narain v. State (NCT of Delhi), (2013) 7 SCC 77.

Affirmative Action

Affirmative Action Serving the Deserving Underserved Groups of the Society Which Truly Deserve Palliative Action: A Neo-Identification of Backwardness

Professor Dr. K. L. Bhatia

B.A. (Hons) (J&K); LL.B. (ILS, Pune), LL.M., Ph.D. (Pune University)

DAAD and Max-Planck Fellow and Alumni

(Former Professor of Eminence National Law University Jodhpur; Head of the Department of Law, Dean, Faculty of Law and Founding Director The Law School, University of Jammu; Director Amity Law School; Dean and Professor Emeritus University of Petroleum and Energy Studies; UNDP Professor Public Law)

Introduction:

In Ram Singh v. Union of India[1] the Apex Court of India has handed down an innovative judgment on the determination of backwardness which is a path breaking judicial approach to the conception of affirmative action a cornerstone of Articles 14, 15(4) and 16(4) of the Constitution of India. The crucial question which the Apex Court has to determine in the identification of backward classes of the citizenry emanates from internally homogeneous (based on caste or occupation) or heterogeneous (based on disability or gender e.g. transgender) variables. Who deserves palliative action whether caste based socially and educationally backward citizens of India or disability based socially and educationally backward classes of citizens of India? This perennial question has been in the conviviality regarding the inclusion of Jats in Central List of Backward Classes vide a Notification dated 04.03.2014 issued under the National Commission for Backward Classes Act, 1993 for the States of Bihar, Gujarat, Harayana, H. P., M. P., NCT of Delhi, Bharatpur and Dholpur Districts of Rajasthan, U. P. and Uttarakhand contrary to the advice rendered by the National Commission of Backward Classes (NCBC). The impropriety of the notification has been focal contentious constitutional issue. The core question seems to be whether Jats come within the conception of homogeneous or heterogeneous paradigm to attract the empathy of affirmative action.

Core facts in brief:

There were several representations made to the National Commission for Backward Classes (NCBC) from individuals, organisations and associations for the inclusion of Jats in the Central List of Backward Classes for the States of Haryana, Rajasthan, Madhya Pradesh and Uttar Pradesh. Pursuant to the representations, the NCBC studied in depth the merits and demerits of the demands, and recommended inclusion in the Central List of Backward Classes only of the Jats of Rajasthan except Bharatpur and Dholpur Districts vide its report submitted on 28.11.1997; the NCBC also examined the similar claim for the State of Delhi and submitted its advice rejecting their claims vide its report on 25.11.2010. However, some significant developments took place after the submission of these two reports. First, the National Commission for Backward Classes (Power to Review Advice) Rules, 2011 was notified on 03.05.2011 by the Ministry of Social Justice and Empowerment which empowered the NCBC to review its advice tendered to the Central Government. Second, pursuant to the rules, the NCBC took up for consideration a large number of representations received from the Jat community for review of the earlier advice of NCBC in a meeting held on 20.06.2011, and deferred the review process till the finalisation of the Socio-economic Caste Census, 2011 which was being conducted by the Registrar General of India all over the country for enumerating castewise population of the country. In a meeting held on 19.07.2011, NCBC decided to approach the ICSSR (Indian Council of Social Sciences Research) to conduct a full fledged survey in the States of Uttar Pradesh, Haryana, Madhya Pradesh, Rajasthan, Himachal Pradesh and Gujarat to ascertain the socio-economic status of the Jat community and the adequate quantified data worked out by the ICSSR would enable the NCBC to consider the representations of the Jat community for inclusion in the Central List of Other Backward Classes in the States concerned. Third, in the midst of the quantified data exercise, the Office of the Prime Minister addressed a communication dated 04.06.2013 to the Ministry of Social Justice and Empowerment that the duly constituted a Group of Ministers would interact with the representatives of the Jat community with regard to their demand for inclusion in the Central List of Other Backward Classes and to monitor the expeditious completion of the quantified data of socio-economic survey undertaken by the NCBC through ICSSR and to facilitate an early decision in the matter by the NCBC. Fourth, the Group of Ministers in its meetings held on 28. 10. 2013 and 30.10.2013 perceived two options, namely, to request NCBC to reconsider its earlier decision of conducting the sample survey and to tender its advice accordingly, or, the survey work being conducted in Gujarat would be restricted to confirmed list of Jat variants and on the basis of the results done by ICSSR, NCBC will tender its advice. However, the Union Cabinet took a decision in its meeting held on 19.12.2013 to request the NCBC to tender its advice on the basis of the first option and also to include the cases of States of Bihar, Uttrakhand and NCT of Delhi. Fifth, on the basis of ICSSR report and public hearings conducted by NCBC in two sets held in Delhi in Fabruary 2014, the NCBC submitted its advice/opinion/report dated 26.02.2014 to the Central Government stating that the Jat community had not fulfilled the criteria for inclusion in the Central List of Other backward Classes and the NCBC also observed in its advice, etc. that merely belonging to an agricultural community cannot confer backward status on the Jats, and, therefore, suggested the need for a non-caste based identification of backward classes. NCBC’s advice/opinion was based on the findings that the Jat community was not socially and educationally backward community; NCBC also rejected the claim of inadequate representation of Jats in public employment; NCBC found adequate representation of Jats in armed forces, government services and educational institutions.   However, the Union Cabinet rejected the advice rendered by the NCBC to the contrary on the ground that the said advice ‘did not adequately take into account the ground realities’ and consequentially issued a notification dated 04.03.2014 including Jats in the Central List of Other Backward Classes for the States concerned.

Contentious conviviality:

The petitioners contended that the impugned Notification dated 04.03.2014 is based on wholly extraneous considerations and is actuated by political motives, namely, to gain electoral advantages. Further, the impugned Notification suffers from the malice of objectivity inasmuch as that the impugned Notification has been issued in derogation of the provisions of National Commission for Backward classes Act, 1993.

Petitioners’ and Respondents’ memorials and Counter-memorials:

The petitioners claimed that as per the provisions of the legislation in question, ‘advice of the Commission (NCBC) shall ordinarily be binding upon the Central Government’. The views of NCBC would be equally compulsive and binding and should commend for acceptance of the central government except in situations where there are strong compelling and overwhelming reasons not to do so. The petitioners claimed in their memorials that none of these situations did exist in the case. It was submitted that the reports of the NCBC were founded on an elaborate reasoning and upon a comprehensive consideration of all relevant materials. The decision of the Central Government to override the advice tendered by NCBC seemed premeditated because it was not supported by any reasons recorded or by noting in the file. Besides, the decision of the Central Government was not based on any relevant quantified data or material to enable recognition of the Jat community as backward class within the meaning of Articles 15(4) and 16(14) of the Constitution of India and the materials of the States concerned could not reasonably sustain the decision of the Union Government to include Jats in the Central Lists of Other Backward Classes of the States concerned.

The respondents — Attorney General — in their reply rebutted the claims of the petitioners by contending that the power to make provisions for reservation by inclusion of the eligible classes in the Central Lists flow from Articles 16(4) and 15(4) of the constitution of India                                                                                                                                                            and the advice of the NCBC would not be very material inasmuch as even dehors the provisions of the NCBC Act the Union Government would not be denuded of its power to add or subtract from the Central Lists of Other Backward Classes. They further contended that the exercise of inclusion of Jats in the List of Other Backward Classes was not pursuant to any exercise undertaken under the provisions of the NCBC Act so as to bind the Union Government to the advice tendered by NCBC. It was also argued that the inclusion of classes or groups in the State OBC Lists would be a strong and compelling factor for inclusion of such classes in the Central Lists also inasmuch as the considerations which had weighed with the State Government to include a particular class as an Other Backward Class would always be relevant for being taken into account for inclusion of the said class in the Central List of Other Backward Classes. Such a course, according to the Respondents, was necessary for the purposes of consistency and uniformity of action by the Union and the States. The Respondents had endeavoured to draw the attention of the Court to the fact that the process of tendering the advice had really commenced in 2011 and the delay that had occurred was attributable to NCBC that had been vacillating from time to time as could be evident from the fact situation.

NCBC’s formulae:

Based on the reports of the States concerned, expert committee report of ICSSR, NCBC had identified eleven indicators under three broad heads, namely, social, economic and educational. NCBC had evolved a set of guidelines, criteria, formats and parameters on the basis of Mandal Commission Report and Indra Sawhney case [2]against which all claims for inclusion as an Other Backward Class were required to be considered.

  1. Social
  1. Castes/Classes considered as socially backward by others.
  2. Castes/Classes which mainly depend on menial labour for their livelihood.
  3. Castes/Classes where at least 25% females and 10% males above the State average get married at an age below 17 years in rural areas and at least 10% females and 5% males do so, in urban areas.
  4. Castes/Classes where participation of females in work is at least 25% above the state average.
  1. Educational
  1. Castes/Classes where the number of children in the age group of 5-15 years who never attended school is at least 25% above the State average.
  2. Castes/Classes where the rate of student dropout in the age group of 5-15 years is at least 25% above the State average.
  3. Castes/Classes amongst whom the proportion of matriculates is at least 25% below the State average.
  1. Economic
  1. Castes/classes where the average value of family assets is at least 25% below the State average.
  2. Castes/Classes where the number of families living in kuccha houses is at least 25% above the State average.
  3. Castes/Classes where source of drinking water is beyond half a kilometre for more than 50% of the households.
  4. Castes/Classes where the number of households having taken consumption loan is at least 25% above the State average.

It discerns that the castes/classes seem to be the chief determining factor for social, economic and educational backwardness be that be on any variables identified in the ex facie eleven indicators.

Constitutional nuances:

Article 15 of the Constitution of India though prohibits discrimination on grounds only of religion, race, caste, sex or place of birth, but, nevertheless, permits compensatory discrimination, or compensatory justice, or permissible discrimination vide Article 15(4), added by first amendment to the Constitution of India under Article 368 for the advancement of socially and educationally backward classes of the citizens including Scheduled Castes and Schedules Tribes being the underserved classes of the Indian society for the entrenched historical misadventures.

Article 16 provides equality of opportunity in matters of public employment, but, nevertheless, permits, vide Article 16(4) the State to make any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.

Both the Articles are in the form and category of ‘affirmative action’ in case of underserved sections of the society who have had been the victims of historical misadventures. Article 15(4) is in the form of reservations in cases of that underserved section of the society which has been socially and educationally backward classes of the citizens. It does not mention caste as the criteria for determining the indicators of social and educational backwardness; it permits reservation, as an affirmative action of the State, for admission in the educational, professional and technical institutions so that these underserved sections of the society get equal opportunity through education to flourish and come in the national mainstream which shall be conducive for the growth of participative government in the furtherance and sustenance of good governance. Article 16(4) is in the form of affirmative action of the State providing equal opportunity to the underserved sections of the society in the public employment of the State if there has had been inadequate and insufficient representation of such categories of the backward classes of the citizens. Backward classes of the citizens have not been identified with the caste.

Judicial nuances: State’s approach to the identification of backward class and judicial parameters to the identification of other backwardness — A journey of vacillation from Champakam Dorarirajan to Ashok Kumar Thakur to Suraj Bhan Meena cases:

Equality is the magnum opus of the supreme lex of India evolved by the Supreme Court of India on the touchstone of constitutional niceties of reservation under the sustain of articles 15(4) and 16(4) in the form of ‘affirmative action’ which is addressed as ‘preferential extra points’, ‘preferential compensatory justice’, ‘preferential treatment’, ‘protective discrimination’ and ‘permissible discrimination’. Though reservation in Indian law is a form of an ‘affirmative action’, but caste is the most predominant component or factor used for reservation be that Scheduled Caste or Scheduled Tribe or socially and educationally Backward Classes of the citizens. In State of Madras v. Champakam Dorairaja[3], the first case on reservation of community and religious basis, the Supreme Court of India has handed down a policy decision based on the constitutional philosophy of egalitarianism, viz., a casteless and classless society, that Madras government reservation order was a communal award violating equality enjoined in Article 15(1). Article 15(1) prohibits discrimination on the basis of caste, creed, sex, religion or place of birth and discrimination involves an element of prejudice or favouritism or select for unfavourable treatment. Anguished over the judicial policy decision, the political polity by first amendment to the Constitution added Article 15(4) by unilateral political will. Thus, starts the journey of disputes between citizens versus State, on the one hand, and Judiciary versus Parliament, on the other hand.

The criterion for the determination of socially and educationally backward classes of the citizens has remained a vexed puzzle.[4] Be that as it may, caste has been the influential determining factor both at the Centre and the States. In M. R. Balaji v. State of Mysore[5], the first case on reservation after the first amendment to the Constitution, the Supreme Court has put 50% cap on reservations, i.e., reservations should not exceed 50% ; the Court invalidated the reservation on the criterion of ‘most backward’; the Court invalidated the test of backwardness which was based predominantly on caste stating that the caste of a group of persons could not be sole or even predominant factor though it could be a relevant test for ascertaining whether a particular class was a backward class or not. The Court a multo fortiorari observed that social and educational backwardness was, in the ultimate analysis, the result of poverty; one’s occupation and the place of habitation could be the other relevant factors in determining social backwardness.

In the backdrop of the above, the Supreme Court in R. Chitralekha v. State of Mysore[6] accepted the Mysore government criterion in classifying the ‘social and educational backwardness’ on the basis of (i) economic conditions, and (ii) occupation. The Apex Court in State of A. P. v. P. Sagar[7] reiterated that in the determination of a class a test solely based upon caste and community could not be accepted.

However, in P. Rajendran v. State of Madras[8] the Supreme Court had applied the test of caste in determining ‘social and educational backwardness’ by observing: “But it must not be forgotten that a caste is also a class of citizens and if the caste as a whole is socially and educationally backward, reservation can be made in favour of such a caste on the ground that it is socially and educationally backward class of citizens within the meaning of Article 15(4)”. The Apex Court in State of A. P. v. U. S. V. Balram[9] reiterated that a caste is also a class of citizens that is socially and educationally backward, and if after collecting the necessary data, it is found that the caste as a whole is socially and educationally backward the reservation made of such persons will have to be upheld notwithstanding the fact that certain individuals in that group may be both socially and educationally above the general average.

However, in Triloki Nath Tickoo v. State of J&K[10] the Supreme Court opined that the State government order reserving 50% of the vacancies for the Muslims of Kashmir, 40% for the Hindus of Jammu and 10% for the Kashmiri Hindus was not synonym of backward caste or backward community as a test to determining the social and educational backward classes. In Jayashree v. State of Kerala[11] the Supreme Court was to resolve the knotty problem whether the constitutional protection could be extended to a person who though belonged to a backward community but whose family’s income exceeded the prescribed limit of amount per annum prescribed for such community to determining the backwardness. The Court expressed that the impugned order prescribing the income limit was valid as the classification was based not on income but on social and educational backwardness.

In the backdrop of the above, it seems that the judicial approach first has not been towards caste to determine the   social and educational backwardness, but the Court’s standpoint then shifted giving recognition to caste as the criterion to determine social and educational backwardness. It also seems that Court’s stance was to give recognition to caste as well as poverty as the basis to determine social and educational backwardness. It also seems that the judicial attitude was to give recognition only to those among the members of the mentioned castes whose economic means were below the prescribed limit of income and were conceded to be socially and educationally backward, and the educational backwardness was reflected to a certain extent by the economic conditions of the group.

However, a new judicial attitude became reflective in State of Kerala v. N. M. Thomas[12] wherein Justice V. R. Krishna Iyer observed by enriching the legal language vocabulary that the better off among the Harijans, who should be given protection in the matter of employment, should not be permitted to negative the benefits of preferential treatment to Harijans as a class. This speaks about judge’s law language which seems to be expressive or implied or reflective corpus juris of future judicial mindset about creamy layer.

  1. C. Vasanth Kumar v. State of Karnataka[13] does not lay down any path breaking judicial policy because the five Justices of the Constitution Bench have expressed five separate judicial opinions on the question of backwardness. First, Justice Y. V. Chandrachud, C. J., opined that the backward classes should be comparable to the Scheduled Castes and Scheduled Tribes in the matter of their backwardness and they should satisfy the necessary test that a State government may lay down in the context of prevailing economic conditions.[14] Second, Justice Desai opined that the only criterion which could be realistically devised was the one of economic backwardness.[15] Third, Justice Chinappa Reddy expressed that ‘class poverty’ and not ‘individual poverty’ was the primary test and, despite individual exceptions, it might be possible and easy to identify social backwardness with reference to caste, residence, occupation or some other dominant feature.[16] Fourth, Justice Sen expressed that the predominant factor for making special provisions under Article 15(4) or for reservation of posts and appointments under Article 16(4) should be poverty, and caste or sub-caste or a group should be used only for purposes of identification of persons comparable to Scheduled Castes or Scheduled Tribes.[17] Fifth, Justice Venkataramiah unequivocally gave vent to that while favouring a test in which the lowest among the caste similar to Scheduled Castes and Scheduled Tribes, the means or economic condition and the occupation may be counted in making a determination of backwardness. It discerns that Justice Desai alone considers poverty as the sole test of backwardness. It also discerns that Justice Venkataramiah’s opinion is a mile stone for future concept of ‘creamy layer’ which is deducible from his phrase ‘the lowest among the caste, i.e., leaving the elite or the upper strata from the benefits of reservation and giving fruits of affirmative action to the lowest or poorest of the poor or the lowly and the lost among the backward.

The Mandal Commission Report in the ultimate analysis took caste as the denominator to determining socially and educationally backward classes of the citizens. To effectuate the Mandal Commission Report the Central Government issued Office Memorandums making 27% reservation for SEBCs, 22.5% for S.C.s and S.T.s, and 10% reservation by giving preference to other economically backward sections of the poor. This criterion of reservation was conceded to be explosive and was a contentious issue in the nature of ‘new found hope’ and ‘extremes of despair’ before a nine-Judge Bench of the Supreme Court in Indira Sawhney v. Union of India.[18] The majority 6:3 opinion inter alia expressed that the Constitution of India neither defines socially and educationally backward classes (SEBCs) nor does it lay down any methodology or criterion for their determination. Though caste is not an essential denominator to determining SEBCs or SEBCs be similarly situated with S.C.s and S.T.s, but nevertheless caste in India often is a significant social class/group encompassing an overwhelming majority of India’s population, and as such one could begin with it and then go to other groups, sections and classes. However, the majority opined that creamy layer (elite as well as forward amongst the SEBCs) must be excluded from SEBCs for claiming the benefits of affirmative action.

Be that as it may be, it may discern from the analysis of the abovementioned cases that the criterion to determine social and educational classes of citizens seem to be as ‘elastic’ as any government may intend it to be.[19] In the backdrop of thus far analysis, it may be submitted that neither the ‘government affirmative action’ nor the ‘judicial affirmative action’ seem to be ‘problem resolve reservation/affirmative action approach’, but, nevertheless, may seem to be the ‘caste based reservation sustenance approach’. There seems no clear conceptual roadmap criterion to define as to who has to be included within the framework of socially and educationally backward classes of the citizens so that the ends of social justice and distributive justice are not ajar to SEBCs and endemically disadvantaged sections of the society.

  1. M. A. Pai v. State of Karnataka[20] (‘compromising-conflict or ‘balancing approach’), Islamic Academy of Education v. State of Karnataka[21] and P. A. Inamdar v. State of Maharashtra[22] (post-compromising-conflict approach) were intertwined with reservation, right to education, minority’s right to establish and maintain educational institutions, and right to have admission and seek education including reservation in such educational institutions. However, the ratio in these cases did neither draw a final curtain on the embroiled controversies nor finally resolve the conviviality of ‘inclusion’ and ‘over-inclusion’ in the domain of ‘affirmative action’.

In the backdrop of the above, 93rd Constitutional amendment has introduced Article 15(5) which empowers the ‘State to make appropriate laws for the advancement of any socially and educationally backward classes of citizens or for Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in Article 30(1)’. Consequently, two incidents took place, first, the enactment of Act No. 5 of 2007 by the Parliament, and, second, the Tamilnadu government put its reservation legislation under IX Schedule of the Constitution of India. This led to the conviviality in Ashok Kumar Thakur v. Union of India[23] being ‘destructive of basic structure’ of the Constitution as well as ‘destructive affirmative action’. A Constitution Bench of 5 Judges reviewed the reservation policy and the concept of ‘affirmative action’ and handed down their unanimous opinion for a casteless egalitarian Indian society conducive for the overall advancement, development and progress of the Indian State.

“Reservation as an affirmative action is required only for a limited period to bring forward the socially and educationally backward classes by giving them a gentle supportive push. But if there is no review after a reasonable period and if reservation is continued, the country will become a caste divided society permanently. While affirmative discrimination is a road to equality, care should be taken that the road does not become a rut. Any provision for reservation is a temporary crutch and such crutch by unnecessary prolonged use, should not become a permanent liability. It is significant that Constitution does not specifically prescribe a casteless society nor tries to abolish caste. But by barring discrimination in the name of caste and by providing for affirmative action Constitution seeks to remove the difference in status on the basis of caste. When the differences in status among castes are removed, all castes will become equal. That will be a beginning for a casteless egalitarian society.”[24]

It seems that the Apex Court’s approach has been that principle of creamy layer is applied not as a general principle of reservation but for the purpose of identifying the socially and educationally backward classes of the citizens. Besides, if reservation is to stay, it should adhere to a basic tenet of secularism, viz., it should not take caste into account; as long as caste is the criterion, a casteless society will never be achieved. But what should be criterion to identify social and educational backwardness devoid of caste, the Court is silent and it seems, the exercise of identification has been left in the hands of political-executive will that may not enliven the judicial policy of casteless egalitarian society to evaporate the soup and souse of the rut.

What fundamental and basic test be evolved to determine Other Backward Classes, i.e., Socially and Educationally Backward Classes to move away from caste centric definition of backwardness:

The Apex Court in Ram Sing’s case under scanning has endeavoured to move from homogeneous (based on caste or occupation) to heterogeneous (based on disability or gender) approach as a guideline for the policy makers to identify backwardness. The Court opined that backwardness is a manifestation caused by several independent circumstances or variables which may be social, cultural, economic, educational or even political. Affirmative action by State is a policy direction to the State under Articles 15(4) and 16(4) to reach out to most deserving groups, and as such the Supreme Court has set a new roadmap as a basis of determination of backwardness. The Court urges that new practices, methods and yardsticks should be continuously evolved to move away from caste centric definition of backwardness. The Court also emphasises that backwardness also cannot be determined on basis of mathematical formulae nor can it be relative because, in the views of the Court, possible wrong inclusions cannot be basis for further inclusions. The Court has evolved heterogeneous approach as the basis for the determination of backwardness, namely, third gender and disability as new emerging groups that must engage the attention of State and the constitutional power and duty must be concentrated to discover such groups rather than to enable groups of citizens to recover ‘lost ground’ in claiming preference and benefits on the basis of historical prejudice. Therefore, recognition of third gender — transgender — as a socially and educationally backward class of citizens is too significant to be ignored for claiming preference and benefits of affirmative action under Articles 15(4) and 16(4).[25] Third gender too is the victim of social injustice and advancement of third gender is imperative to achieve the constitutional tenets of social-politico-economic justice by giving them preferential claims in the educational, professional and technical educational institutions and providing jobs in the government and public sectors translating human dignity as a rule of life to making the rule of law meaningful. Disability caused by nature or accident — physical, visual, hearing impairments and economic —- is equally significant for recognition of affirmative action of the State under Articles 15(4) and 16(4).

Jats do not fall within the ambit of heterogeneous bracket and as such claims of affirmative action of the state shall not be tantamount to the constitutional policy enjoined in Articles 15(4) and 16(4). In a pathfinder judgment in the case under scanning, the Apex court has handed down new formulae to identify socially and educationally backward classes of the citizens:

“Outdated statistics cannot provide accurate parameters for measuring backwardness for the purpose of inclusion in the List of other Backward Classes. This is because one may legitimately presume progressive advancement of all citizens on every front, i.e., social, economic and educational. Any other view would amount to retrograde governance. … Past decisions of this Court[26] … had conflated the two expressions used in Articles 15(4) and 16(4) and read them synonymously. It is Indra Sawhney case[27] that this Court held that the terms “backward class” and “socially and educationally backward classes” are not equivalent and further that in Article 16(4( the backwardness contemplated is mainly social. … We may, therefore, understand a social class as an identifiable section of society which may be internally homogeneous (based on caste or occupation) or heterogeneous (based on disability or gender e.g. transgender). Backwardness is a manifestation caused by the presence of several independent circumstances which may be social, cultural, economic, educational or even political. Owing to historical conditions, particularly in Hindu society, recognition of backwardness has been associated with caste. Though caste may be a prominent and distinguishing factor for easy determination of backwardness of a social group, this Court has been routinely discouraging the identification of a group as backward solely on the basis of caste. Article 16(4) as also Article 15(4) lay the foundation for affirmative action by the State to reach out to the most deserving. Social groups who would be most deserving must necessarily be a matter of continuous evolution. New practices, methods and yardsticks have to be continuously evolved moving away from caste centric definition of backwardness. This alone can enable recognition of newly emerging groups in society which would require palliative action. The recognition of the third gender as a socially and educationally backward class of citizens entitled to affirmative action of the State under the Constitution in National Services Authority v. Union of India[28] is too significant a development to be ignored. In fact it is a pathfinder, if not a path breaker. It is an important reminder to the State of the high degree of vigilance it must exercise to discover emerging forms of backwardness. The State, therefore, cannot blind itself to the existence of other forms and instances of backwardness. An affirmative action policy that keeps in mind only historical injustice would certainly result in under protection of the most deserving backward class of citizens, which is constitutionally mandated. It is the identification of these new emerging groups that must be concentrated to discover such groups rather than to enable groups of citizens to recover “lost ground” in claiming preference and benefits on the basis of historical prejudice. The perception of a self-proclaimed socially backward class of citizens or even the perception of the “advanced classes” as to the social status of the “less fortunes” cannot continue to be a constitutionally permissible yardstick for determination of backwardness, both in the context of Articles 15(4) and 16(4). … Determination of backwardness must also cease to be relative: possible wrong inclusions cannot be the basis for further inclusions but the gates would be opened only to permit entry of the most distressed. Any other inclusion would be a serious abdication of the of the politically organised classes (such as Jats) in the List of Backward Classes mainly, if not solely, on the basis that on same parameters other groups who have fared better have been so included cannot be affirmed.[29]

Conclusion:

Ram Singh case, handed down by Justices Ranjan Gogoi and Rohinton Nariman, under academic scanning, is an innovative judicial policy decision that gives enough guidelines to the policy makers in the country to shun its “historical injustice and historical prejudice” approach in identifying backwardness with caste and move ahead with new policy approach indentifying backwardness with other emerging social, cultural, economic, educational or even political underserved sections of the society. The new underserved sections of the society may be “disability or gender, i.e., transgender” that deserves palliative action the most under Articles 14, 15(4) and 16(4) of the Constitution and that shall alone be a step forward in the progressive movement of affirmative action and egalitarian society in the context of constitution policy. Caste thus far has been ‘over inclusion’ determining factor for backwardness; disability or gender has remained ‘under inclusion’ factor in determining backwardness. The judicial message unequivocally seems to be in the direction of giving the benefits of affirmative action to the ‘under inclusion’ social and educational backward classes of the citizens that alone shall meet the requirements of compensatory justice under the constitutional language of Articles 15(4) and 16(4).[30]

 

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[1] (2015) 4 SCC 697.

[2] Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217.

[3] AIR 1951 SC 226.

[4] The constitution of India does not define the expression ‘socially and educationally backward’, however, vide Article 366 defines the expressions Scheduled Castes and Scheduled Tribes under clauses 24 and 25. Article 340 of the Constitution empowers the President of India to appoint a commission to investigate the conditions of ‘socially and educationally backward classes’ and such other matters as may be referred to the commission by the President of India. The President of India has exercised his power twice, by appointing Commissions under the Chairmanships of Kaka Kalekar (Report, Backward Classes Commission, 1955) and B. P. Mandal (Report, Backward Classes Commission, 1981). Both the Commissions have taken caste as a common denominator to determining the ‘social and educational backwardness’. Consequently, the States of Indian State have been experimenting with different tests influenced by social and political considerations. The higher Judiciary review State decisions and political influenced arrangements in this perspective to ascertaining if proper criterion for determining the ‘social and educational backward classes’ have been adopted.

[5] AIR 1963 SC 649.

[6] AIR 1964 SC 1823.

[7] AIR 1968 SC 1379.

[8] AIR 1968 SC 1012. At pp. 1014-1015.

[9] AIR 1972 SC 1375.

[10] AIR 1969 SC 1.

[11] AIR 1976 SC 2381.

[12] AIR 1976 SC 490.

[13] 1985 Supp SCC 714.

[14] Id. at p. 723.

[15] Id. at p. 734.

[16] Id. at p. 769.

[17] Id. at p. 770.

[18] 1992 Supp (3) SCC 217.

[19] See in particular Marck Galanter, Competing Equalities: Law and the Backward Classes, Oxford University Press, Delhi, 1988, pp. 188-204 and 290-305.

[20] AIR 2002 SC 355.

[21] (2003) 6 SCC 697.

[22] AIR 2005 SC 3226.

[23] (2008) 6 SCC 1.

[24] Id. para 666.

[25] National Legal Services Authority v. Union of India, (2014) 5 SCC 438.

[26] M. R. Balaji v. State of Mysore, AIR 1963 SC 649; Janki Prasad Parimoo v. State of J&K, (1973) 1 SCC 420.

[27] Op. cit.

[28] (2014) 5 SCC 438.

[29] Supra note 1 at pp. 729-730.

[30] See K. L. Bhatia, Constitutional and Legal Status of Transgenders, their Gender Identity and Sexual Orientation, 50(3), 2014, Civil and Military Law Journal, 239-244.