Kashmir Azadi

Militant Zakir Musa Killed in South Kashmir Encounter

Security forces launched a cordon and search operation at Dadsara village and when the militants tried to escape, a gunfight broke out.

Srinagar: Zakir Musa, the chief of Ansar Ghazwat-ul-Hind, a group affiliated with Al-Qaeda, was killed in an encounter with security forces in a village in South Kashmir’s Tral, officials confirmed Friday.

A defence spokesman said one militant was killed in the operation at Dadsara in Tral area of Pulwama district Thursday night.

“The (slain) terrorist was identified as Zakir Musa after the body was recovered Friday morning. Weapons and war-like stores were recovered from the encounter site,” defence spokesman Rajesh Kalia said, adding that the operation has been called off.

Senior police officials said security forces had launched a cordon and search operation at Dadsara village and when the militants tried to escape, a gunfight broke out.

They said efforts were made to make them surrender but the request fell on deaf ears and the holed up militants started lobbing grenades using a launcher. The officials said more team of security forces was rushed to the area to prevent the militants from escaping under the cover of darkness.

Spontaneous protests broke out Thursday night in Shopian, Pulwama, Awantipora and downtown Srinagar, with people raising slogans in favour of Musa, prompting authorities to impose curfew in some parts of the Valley as a precautionary measure.

The restrictions have been imposed in some areas of Pulwama, Srinagar, Anantnag and Budgam districts. Educational institutions have been ordered closed for the day while mobile internet services have also been snapped across Kashmir.

The officials said the decision was made keeping in view the Friday prayer gatherings.

What the BJP-Chidambaram Spat Tells Us About Modi’s Plans for Jammu and Kashmir

The movement for “azadi” – which Chidambaram rightly said was more about restoring autonomy than independence – is driven by the fact that many in Jammu and Kashmir feel their political space is being constrained by New Delhi.

The movement for ‘azadi’ – which Chidambaram rightly said was more about restoring autonomy than independence – is driven by the fact that many in Kashmir feel their political space constrained by Delhi.

Former home minister P. Chidambaram (left), Prime Minister Narendra Modi (right). Credit: PTI

Prime Minister Narendra Modi can be excused for harshly criticising former Union home minister P. Chidambaram for saying that when the people of Jammu and Kashmir talk of “azadi”, they actually seek autonomy. Modi is in election mode and is not known to be a particularly restrained person when it comes to politics. He chastised Chidambaram for “using the same language that separatists use in Kashmir and the same language used in Pakistan”. Modi then, somewhat immoderately, proceeded to wrap the flag around himself by declaring that Chidambaram’s remarks “were an insult to our brave soldiers” and arose from the Congress’s jealousy over the surgical strikes.

All this is coming from a prime minister who, after a year-long crackdown by the security forces in Jammu and Kashmir, has decided to appoint former Intelligence Bureau chief Dineshwar Sharma to find a political solution to the issue. It also comes from a prime minister who has signed a “framework agreement” with India’s longest run separatist insurgency – that of the Nagas – and may be close to working out a final deal with them. It is difficult to believe that the government of India will be able to work out an agreement with the Nagas without in some way addressing the issue of sovereignty. Howsoever they finesse it, it will call for more, rather than less, autonomy for the areas in which the Nagas reside.

So, why is Modi dead set against any kind of autonomy for Jammu and Kashmir, notwithstanding the fact that these rights flow from Article 370 of the constitution? Well, for one, he is the leader of a party that has a well-known position of wanting to delete this provision from the constitution.

This is an inheritance from the political progenitor of the BJP, the Jammu and Kashmir Praja Parishad, which began spearheading an agitation for full integration of the state to the Indian Union. Indeed, when the Bharatiya Jana Sangh was formed in October 1951 under the auspices of the RSS and Syama Prasad Mookerjee, the Praja Parishad became its affiliate in Jammu, though it only merged into the Jana Sangh in 1963. In 1953, Mookerjee led a renewed agitation in Jammu and Kashmir and died in detention. For the Jana Sangh and its descendants, this was an act of martyrdom. This has strongly coloured the views of the BJP towards any form of autonomy to Jammu and Kashmir.

Also read: The History of Dialogue in Kashmir Does Not Inspire Confidence in Delhi’s Latest Move

Article 370 was a solemn commitment of the government of India to the Kashmiris and it arose out of the special circumstances that confronted the Constituent Assembly as it wrote the Indian constitution in 1948. One-third of the state was under the occupation of Pakistan, and the United Nations Security Council had passed a resolution suggesting that accession of the state to the Indian Union needed to be ratified through a plebiscite.

So, the Constituent Assembly incorporated a “temporary” Article 370 conferring special status to the state. This meant the inclusion of a provision limiting the jurisdiction of the Union government over the state. For this reason, the Article has been called a bridge that links the state to India. Over time, circumstances and politics have eroded much of the autonomy Jammu and Kashmir once enjoyed. Some of the developments have been natural, arising out of political developments and a better understanding of the governance needs of the country which has only taken its present shape in the past 70 years. There are many institutions, for example the higher courts system, the RBI or the Central Election Commission, whose all-India character have been a boon rather than a bane even for the Valley.

Yet, the fact of the matter is that a significant section of the people of Jammu and Kashmir feel that their political and cultural space is somehow being constrained by New Delhi. This is what drives the movement for “azadi” which Chidambaram rightly said was more about restoring autonomy, rather than independence.

Unfortunately, the demand for autonomy has not played out only politically. Aided and abetted by Islamabad, the state saw the start of a virulent insurgency in 1990. The fact that Muslims form the majority of the state complicated the issue because it came with a deliberate Pakistani strategy of trying to link it to the wider currents of jihadi Islam.

Tens of thousands of people were killed in the process. But in the end, the Indian state decisively defeated the gun. Having done so, it needs to move towards normalising the situation through political negotiation. Since a lot of the appeal of azadi is about a sentiment, rather than reality, what is needed is sensitive handling and creativity. But the loud clamour coming out of Jammu, demanding the abrogation of Article 370 – or 35A – undermines this possibility.

Also read: Arrogance and Miscalculations Have Weakened Modi’s Hand in Kashmir

That New Delhi needs to address this sentiment may appear to be a simple task, but actually it is so much more complicated. Sentiment is what makes Brexit or the Catalonian developments so vexingly difficult to deal with.

When the BJP and the PDP formed a coalition to run the J&K government in 2015, it was an extraordinary moment. The former vehemently opposes autonomy and the latter equally passionately supports it. Both sides hold long established positions and it should have been their unique responsibility to work out a solution. Unfortunately, they have chosen to separately converse with New Delhi, rather than with each other.

The Union government has always had a special responsibility to work out ways of resolving such issues. But perhaps the BJP needs to pressure its state unit, rather than be buffeted by pressures from them. By now all of them – the BJP Jammu unit, the PDP and the Union government – should have realised the huge opportunity costs that the state of Jammu and Kashmir has paid for this continuing political division.

Modi spoke about the army, surgical strikes and the like. Perhaps a more sober approach would have been to acknowledge that through their hard work, the security forces have defeated the insurgents, and the best tribute that can be paid to the memory of those who have laid down their lives in the process is for the politicians to use the enormous authority entrusted to them to work out a durable political solution.

Indian federalism remains a work in progress. Too many things are still run out of Delhi, rather than being left to the states or even the districts of the country. The fact that this country has defeated every separatist challenge it has faced since 1947 should make the Union government more, rather than less, inclined towards promoting decentralisation and autonomy to all parts of the country. Diversity is India’s special gift and if nurtured it could well prove to be the well-spring of good governance and prosperity.

Manoj Joshi is a Distinguished Fellow, Observer Research Foundation, New Delhi.

How Many Times Must We Lose the Valley?

The repression and rigging of 1987 proved to many Kashmiris that the freedoms promised to them under the Indian constitution would be violated, not defended. Till today, 1987 continues to repeat itself.

The repression and rigging of 1987 proved to many Kashmiris that the freedoms promised to them under the Indian constitution would be violated, not defended. Till today, 1987 continues to repeat itself.

A teargas shell fired by Indian police explodes during a protest by Kashmiri demonstrators. Credit: Reuters/Danish Ismail/Files

The use of Farooq Ahmed Dar as a human shield by Major Leetul Gogoi has been a polarising moment. So polarising that commentators are deeply divided in the armed forces themselves, with Lt General (retd) H.S. Panag, taking a diametrically opposite view to the current army chief, General Bipin Rawat. All this shock and horror, though, serves to obscure how banal and “ordinary” such treatment seems to Kashmiris. I do not mean that Kashmiris have been used as human shields before, although that has been claimed. Rather, the fact that Dar was one of only 7% of voters in the Srinagar parliamentary constituency who chose to exercise their franchise that day has served to reinforce the popular perception in the Valley that voting and the denial of basic democratic rights often go hand in hand.

In his outreach to Kashmiris, Atal Bihari Vajpayee – the prime minister considered by many Kashmiris as the most sincere in his willingness to change the dynamic – mentioned the lack of free and fair elections in Jammu and Kashmir, taking full credit for changing that. In 2003, he declared, “They asked which world I was living in as votes cast here are not counted and, even if they are counted are not credited to the right party.” In this he was referring to the 1987 state elections, the rigging of which led directly to the outbreak of violence in 1989.

Many today don’t realise that the Hizbul Mujahideen commander we now know only by his nom de guerre of Syed Salahuddin was, as Yousuf Shah, a candidate in those elections. People forget that Yasin Malik, later of the Jammu Kashmir Liberation Front, was an election campaigner. While these are well-known facts, less known is the motivations of those that rigged the elections. By 1987, Rajiv Gandhi’s government had started losing the support engendered by Indira Gandhi’s assassination and the anti-Sikh pogroms that followed. In 1986, he committed the twin blunders of opening the locks in Ayodhya and pandering to Muslim clerics over the Shah Bano case in a desperate and wholly misguided effort to sustain support. His government then pressured the National Conference, then under Farooq Abdullah, to fight the elections in coalition with the Congress.

Until 1987, the local parties of Jammu and Kashmir, whether the National Conference (NC) or the Plebiscite Front, anticipating the state-Centre relations that would come up in other states, tried to maintain a balance between local pride and cooperation with New Delhi, even if the Centre’s dismissal of government after government made this difficult. Rajiv’s decision to force the NC into a coalition with the Congress in 1987 destroyed the NC’s ability to represent itself as anything other than New Delhi’s voice. In turn, though, the NC, by all accounts, went all out to ensure it did not lose any seats to the various dissident parties arranged in a loose coalition under the banner of the Muslim United Front (MUF).

The MUF was unlikely to win many seats, but by the process of incarceration and torture – which included, allegedly, making campaigners drink their own urine – the NC lost even the little credibility it had to defend native pride. We know well what happened afterwards – the tens of thousands of lives we have lost, of civilians and soldiers. For many, there is the convenient myth of Kashmiris always being pro-Pakistan and anti-India. While some undoubtedly were – and certainly the referendum that never took place has haunted Delhi-Srinagar relations – those in favour of working with India dominated the Valley. It was they who stopped the Pakistani irregulars reaching Srinagar airport in 1947 before the Indian army could arrive. It was they who turned over Pakistani spies to the authorities in 1965.

On April 4, 1979, when Zulfikar Ali Bhutto was hanged by the Pakistani army, rioters in Kashmir attacked and looted the properties of the Jamaat-e-Islami J&K. For an external observer, it would be hard to predict that a decade later the same Kashmiris would reject India and turn to the Pakistani army for “help”, that it would be the same Jamaat, with Syed Ali Shah Geelani heading its political wing, becoming the voice of merger with Pakistan. It is no coincidence that the Hizbul Mujahideen was often referred to as the Jamaat’s “Youth Wing”.

What happened? In a nutshell, the repression and rigging of 1987 – coming after a host of actions like the never-held referendum, the imprisonment of Sheikh Abdullah and the gutting of the autonomy promised under Article 370 – ended up proving for many Kashmiris that the freedoms promised to them under the Indian constitution would not be defended, but would rather be violated. Those that had counselled accommodation with Delhi, such as Sheikh Abdullah, now began to be seen as the ones that had sold Kashmiris into servitude. This is exactly what happened to Farooq Ahmed Dar when he voted in the recent elections before being beaten, tied to a jeep and paraded across 17 villages over five hours.

It cost us much blood to reverse some of what we lost in 1987. In the Fall of 2005, I interviewed a senior Hurriyat leader with a few of my colleagues. Violence levels had dropped, India and Pakistan were talking, the LoC had been opened up – to a very limited degree – to travel and trade. There were even rumours of Syed Salahuddin coming across and taking part in elections, of becoming plain old Yousuf Shah again. In response to our question on Salahuddin – or Peer sahib, as he is sometimes known – contesting elections, the Hurriyat leader sat silently for a moment, and then one skinny arm shot out from under his pheran and he declared, “Let him come! We will see how big is his gun.”

We tried to hide our grins at the (unintended?) double entendre, but it became our stock phrase for a few days. We seemed that close to a return to democracy that we were discussing how an election candidate-turned-militant could turn back into an election candidate. Today, a ‘renegade’ Hizb commander like Zakir Musa threatens to chop the heads of the Hurriyat leadership. This is how far we have fallen, and the militants are firmly in charge again.

At that time there was still hope. We went from Srinagar to Sopore, where a young, recently elected, municipal councillor showed us around the trash-lined streets in a city that paid some of the highest taxes in the state, and told us of his dreams for urban renewal. The 2005 municipal elections were the first in 25 years. There was hope. Later I would travel to Mattan, in Anantnag, where a Kashmiri Pandit, the patriarch of the lone Hindu family in the district, had been elected. Minorities in such small numbers very rarely win in first-past-the-post elections – and he had, among a handful of others. He grinned at me and gestured to soldiers standing guard near a temple, “You think they keep me safe? It is my neighbours.”

I did not know whether to believe him. From the face of his son, I did not know if his family believed him either, but there was hope. Not to overstate things, those taking part in the elections made sure to distance themselves from claims that this was a referendum on the political dispute. Nevertheless, the empowering of local leadership to represent their own people, their own point of view, helped those of us who were arguing that freedom could be possible within the ambit of the Indian constitution and taking part in the democratic process did not merely mean a meek surrender to Delhi. The large turnouts were a positive indication, unlike the abysmal turnouts now.

A few years later, we had more reasons for that hope. Kashmir held panchayat elections in 2010 and I oversaw a project that helped train some of the sarpanches and panches to fulfil their duties, to negotiate with the state authorities and the military. They were nobodies, newly come to power in a state that had not seen panchayat elections in decades. They were nobodies, with no security, the greatest believers in democracy, and we let them die, killed by militants, by thugs, by political opponents and just strangers.

Municipal elections have not happened since 2005, they are now overdue by seven years. The municipalities are again dictated to by clerks and babus. The same holds true of the panchayats. The thing is that nobody cares. Those used to exercising power in the name of security do not wish to surrender it to those elected in the name of democracy. The police and administration do not want to listen to villagers – these pesky panches, sarpanches and municipal councillors that they are used to bullying. The MLAs and MPs, whose exercise of power since at least 1989, but in fact stretching back to Sheikh Abdullah’s jailing in 1953, has always been hemmed in by New Delhi, have no interest in sharing power with panchayati institutions or municipal councils either. And the militants, does anybody really think they want democracy? For them, these nobodies were a nuisance at best, traitors to “the movement” at worst.

In the midst of it all stand the armed forces, both the paramilitary and the military, who have endured violence, humiliation and hardship, seen their colleagues bleed and die, just to see it all come around once again. I am told that when the NC moved the Autonomy Resolution in the Jammu and Kashmir assembly in 2000, some soldiers grumbled, “Who is he to ask for autonomy? After all, it was our votes that made him chief minister in 1996.”

Who will ask the armed forces to believe that we actually do mean to bring peace to the Valley, to bring democracy? They have, arguably, seen a hard-won peace frittered away for the gains of greedy politicians.

Merely holding free and fair elections will not “solve the Kashmir problem”; for that you need a bigger debate on freedom and autonomy than we seem to be willing to have. Nevertheless, investing the democratically elected with real power to represent their constituents is India’s strongest card to play, our most important appeal. Weakening this approach is the most self-defeating thing we can do, but it seems, like an addict, we cannot stop ourselves from self-harm.

So 1987 recurs, again, and again. We invest nothing in deepening democracy, in defending the freedoms of Kashmiris. Instead we try to enforce a “peace” by taking away rights, by bludgeoning a population into submission.

Again and again we hear mainland politicians asking Kashmiri youth to give up stone pelting, to give up guns, to vote, be a part of the largest democracy on Earth and yet, when has taking part in the democratic process ever really led to greater freedom to them? When Indian liberals say that freedom can be achieved within the bounds of the Indian constitution, why should they believe us? Is it really so hard to understand, then, why they shout for freedom from us, rather than with us?

Interview: First Ban Pellet Guns, Then Hold Talks With Us, Says Hurriyat

Shahid-ul-Islam believes Kashmiris won’t stop putting themselves in the line of fire until the Centre makes a sincere effort to resolve the Kashmir issue.

Spokesman Shahid-ul-Islam believes Kashmiris won’t stop putting themselves in the line of fire until the Centre makes a sincere effort to resolve the Kashmir issue.

Shahid-ul-Islam, Hurriyat spokesperson, who is currently under house arrest at his home in Srinagar. Credit: Rohini Mohan

Srinagar: The all-party delegation of parliamentarians led by home minister Rajnath Singh visited Srinagar on September 4. That morning, Singh tweeted, “We intended to talk to individuals & groups who want peace & normalcy in the Kashmir Valley”. However, the Hurriyat Conference, the principal Kashmiri separatist group led by Syed Ali Shah Geelani, Mirwaiz Umar Farooq and Yasin Malik, boycotted the delegation, saying that its visit was “a futile exercise” when guns were still blazing in Kashmir and they themselves were under detention. When some parliamentarians – all of whom were members of a similar delegation in 2010 – went to meet the separatist leaders in their personal capacity, they were turned away at the door.

Hurriyat Conference spokesperson Shahid-ul-Islam, who has also been under house arrest in Srinagar since July 9, told The Wire in an interview that the group’s refusal to meet the parliamentarian delegation was “not to insult anyone” but a sign of “disappointment in the insincerity” of the Indian government. “You cannot come into my house, meet me for tea, promise things and then go and abuse me outside. How will I trust you again?” he asks.

Excerpts from the interview follow. The interview has been edited for clarity.

Why did the Hurriyat leaders not meet the delegation despite being invited?

This is the fourth visit from Indian parliamentarians. It’s a photo session, you know, and a firefighting mission. Whenever there is unrest, you see these parliamentarians or civil society members who are moderate liberals coming in. And then things settle down, they just forget everything. And again, when there is something untoward, they start calling. It’s a routine. People have realised it’s not going to serve any purpose. People don’t trust Indian politicians anymore.

But some Hurriyat leaders have participated in the dialogue before. Why not now?

If you go back and see, three important leaders have been talking to [the] government of India. It started with Shabeer Ahmed Shah, then Yasin Malik, then Mirwaiz Umar Farooq. What were the results? We got nothing. Not even confidence-building measures were given, forget azaadi (independence). There is only one thing on their mind – to discredit the separatist leadership among Kashmiris.

So you’re saying that if Geelani and Mirwaiz had met the delegation, it would have discredited them?

No, not just discredit. It would have not served any purpose. Firstly, the ones who came to meet had no mandate. Secondly, they were not [representatives of] the government of India talking. Thirdly, the government did not create a conducive atmosphere. You put leaders in jail like putting animals in a zoo and just want to go take a photograph there. It is not done. There should have been some groundwork done, [create a] peaceful atmosphere, ban of pellet guns, then only you can talk. The day the delegation announced it’s coming, that day also we had two killings and 600 injured. In such turmoil, how can you talk with a free mind?

Without talks, won’t this atmosphere of violence continue?

Many people in the Hurriyat believed in talks. Even after a war, I would say there should be dialogue. But India is to blame for making us lose faith in this exercise. When some of us talked to India in 2010, we were trying a softer approach, but the government didn’t do as promised. Mirwaiz Umar Farooq lost his uncle – unidentified gunmen shot him when he talked to India. His house was attacked. I was fired at twice. Another colleague, Qureshi, is paralysed because of a bullet in his head. So, we have suffered for talks, we have taken great personal risks.

We talked to [Atal Bihari] Vajpayee, and [L.K.] Advani, then Manmohan Singh and Chidambaram. But what were the results? Not even a change in AFSPA or investigation of human rights violations. Due to their insincerity and betrayal, they have pushed away even those leaders who were willing to engage with [the] government of India.

The home minister seems to have taken a tougher stand after the talks were boycotted. Will you not be blamed for putting more Kashmiris in the line of fire?

This time, things are different. People are coming to the leadership this time. It is not the leadership that is pushing people. People are coming to our houses and saying, please, we don’t want this to stop, we want an outcome this time. Don’t betray us, they are saying. It’s now or never – this is the mood of the people.

Aren’t there already too many deaths and injuries?

Yes, it is painful. But this is the mood of the people on the streets. The leadership is just following this cue.

The narrative by the Indian government now is that they tried to meet you, but you refused.

The Centre will blame us for spoiling the talks, we know that. But we say, implement some solutions already discussed from these earlier meetings. Show some sincerity now, do something on the ground, create the ground for dialogue.

What are some of these measures you want implemented immediately?

Stop the [use of] pellet guns, people are suffering. [The] home minister says ‘we will introduce PAVA chilli-based shells but we will not stop pellet guns’. What does it convey? How do you expect any social commitment from the common people or leadership then?

The government of India and the Hurriyat now stand with absolutist positions. How can we move forward?

There is always a meeting point. But the question is why are the basic confidence-building measures not done? For instance, removal of AFSPA, ban of pellet guns, removal of bunkers from city or fewer army camps next to villages. These are small steps for a big country like India. And today the armed forces, who are on the ground, are also seeing the need for political resolution. Do these [things] first for the common Kashmiri. Till then we cannot reach a meeting point.

A more nationalistic government is in power today under the BJP. Does this make a Kashmir solution harder to achieve?

Under the Vajpayee government in India and General Pervez Musharraf [government] in Pakistan, we had some talks. That was the first and only time we felt a ray of hope. But Musharraf was sabotaged by his subordinates. And Vajpayee also couldn’t handle the hawks within the BJP. Since then, we have lost hope and expectation. As for the present regime, look at the radicalisation they’re creating in both Hindus and Muslims. Since they assumed power, India’s global record of human rights and freedom of expression has fallen and they are trapped in so many of their own problems. So, I don’t think there are any expectations from this regime. But I will be happy if they surprise us.

Can the elected state government negotiate for these changes?

The Kashmir state governments have always been under the Centre, whether it was [the] National Conference under the Congress or now [the] People’s Democratic Party under the BJP. If we have an elected chief minister, then she should have been able to handle things, but things are different in Kashmir because there is 100% interference from [the] Centre.

Some Kashmiri separatists have been pro-Pakistan, some pro-India. How do you expect the government to deal with these factions?

You’re right, there were some who didn’t believe in talks. And some of us believed in talks. But the Indian government, by its callous behaviour, has proved that the ones refusing talks were right. They have proved Geelani right and Yasin Malik and Mirwaiz wrong. But this time there is no confusion of independent or pro-Pakistan. This is the first time all the leadership is united.

What is your united demand?

Whatever comes, all the three parties, India, Pakistan and Kashmir stakeholders, will have to sit together and start talking seriously for a Kashmir solution.

Calling for Kashmir’s Azadi is Not Sedition, Even If it’s Illogical and Reactionary

Though I reject the slogan, merely demanding azadi will not be a crime unless one goes further and commits violence, or organises violence, or incites imminent violence.

Protesters rally against sedition charges in the JNU controversy. Credit: StandWithJNU/Facebook

A number of JNU students earlier this year and Amnesty India most recently have been charged with sedition under section 124A of the Indian Penal Code. The trigger in both cases was the mere shouting of slogans in favour of the independence of Kashmir.

Article 19(1)(a) of the Indian constitution guarantees freedom of speech to all citizens, though this is subject to reasonable restrictions mentioned in Article 19(2).

Although I personally disapprove of the slogan for azadi, in my opinion the shouting of such slogans per se, is no crime. So many people in India often shout such slogans. In the past, the advocates of Khalistan did so, as did Nagas and Mizos. In Kashmir today, tens of thousands of people are raising this slogan. In Scotland, many people demand separation from Great Britain, and many people in the French-speaking province of Quebec demand freedom from the rest of Canada. In a democracy, people should be allowed to let out steam, and the government should learn to not over-react.

Thus, in NOTO vs. US (1961), Justice Harlan of the US Supreme Court observed:

The mere teaching of communist theory, including the teaching of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action. There must be some substantial direct or circumstantial evidence of a call to violence now or in the future which is both sufficiently strong and sufficiently pervasive to lend colour to the otherwise ambiguous theoretical material regarding communist party teaching.

In Terminiello vs. Chicago (1949), Justice Douglas of the US Supreme Court, speaking for the majority observed :

A function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute,…is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance or unrest….There is no room under our constitution for a more restrictive view. For the alternative would lead to standardisation of ideas either by legislatures, courts, or dominant political or community groups.

In Abrams vs. US (1919), the defendants had been convicted under the Espionage Act of 1917, which made it a criminal offence to urge curtailment of production of the materials necessary for the war against Germany with intent to hinder the progress of the war. The defendants were convicted on the basis of two leaflets they printed and threw from windows of a building in New York City. One leaflet, signed ‘revolutionists’, denounced the sending of American troops to Russia. The second leaflet, written in Yiddish, denounced the war and US efforts to impede the Russian Revolution. It advocated the cessation of the production of weapons to be used against Soviet Russia. Justice Holmes of the US Supreme Court, in his dissenting judgment in that case wrote :

Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wish to sweep away all opposition. But when men have realised that time has upset many fighting faiths, they may come to believe that the ultimate good desired is better reached by free trade in ideas, that the best test of truth is the power of the thought to get itself accepted in the competition of the market; and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our constitution. It is an experiment, as all life is an experiment. Every year, if not every day, we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country. I wholly disagree with the argument of the government that the 1st Amendment left the common law as to seditious libel in force. History seems to me against the notion.

In Gitlow vs. New York (1925), the appellant, a member of the left wing of the Socialist Party, had been convicted for printing and distributing copies of a manifesto which called for the “overthrow of the state by class action of the proletariat in any form, seizure of power and suppression of the bourgeoisie.” In his dissenting judgment in that case Justice Holmes said:

It is manifest that there was no present danger of an attempt to overthrow the government by force on the part of the admittedly small minority who shared Gitlow’s views. It is said that the manifesto is more than a theory, that it was an incitement. Every idea is an incitement. It offers itself for belief, and if believed is acted on, unless some other belief outweighs it. Whatever may be thought of the discourse before us, it had no chance of starting a present conflagration. If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.

In Whitney vs. California (1927), Justice Brandeis, the celebrated judge of the US Supreme Court observed:

Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burned women. It is the function of free speech to free men from the bondage of irrational fears.

In Joint Anti-Fascist Refugee Committee vs. McGrath (1951), Justice Douglas in his concurring judgment observed:

In days of great tension when feelings run high, it is a temptation to take short cuts by borrowing from the totalitarian techniques of our opponents. But when we do, we set in motion a subversive influence of our own design that destroys us from within.

All the above decisions of the US Supreme Court have been referred to with approval in the decision of the Indian Supreme Court in Sri Indra Das vs. State of Assam (2011).

In Romesh Thapar vs. State of Madras,Patanjali Shastri, the chief justice, observed:

Freedom of speech lies at the foundation of democracy, for without free political discussion no public education, so essential for the proper functioning of the process of popular government, is possible.

In Union of India vs. Association for Democratic Reforms, the Supreme Court observed:

One-sided information, disinformation, misinformation and non-information, all equally create an uninformed citizenry which makes democracy a farce. Freedom of speech and expression includes right to impart and receive information which includes freedom to hold opinions.

In 1954, Ram Manohar Lohia, then general secretary of the Praja Socialist Party was arrested by the Uttar Pradesh government for leading protests around the government policy that had increased irrigation rates for water supplies for canals to cultivators. He was prosecuted under the UP Special Powers Act 1942, which criminalised instigating people to refuse to pay taxes. Supreme Court ruled in favour of Lohia, holding that the state government’s action was in violation of Article 19(1)(a) (Superintendent Central Prison vs. Ram Manohar Lohia). The court held that for an action to be restricted under Article 19(2), there needs to be a proximate and reasonable connection or nexus between the speech in question and public order. The court said:

In an attempt to indicate its wide sweep, we pointed out that any instigation by word or visible representation not to pay or defer payment of any exaction or even contractual dues to government, authority or a land owner is made an offence. Even innocuous speeches are prohibited by threat of punishment. There is no proximate or even foreseeable connection between such instigation and the public order sought to be protected under section (sic). We cannot accept the argument of the learned advocate general that instigation of a single individual not to pay tax or dues is a spark, which may in the long run ignite a revolutionary movement destroying public order. We can only say that fundamental rights cannot be controlled on such hypothetical and imaginary considerations. It is said that in a democratic set up there is no scope for agitational approach and that if a law is bad, the only course is to get it modified by democratic process and that any instigation to break the law is in itself a disturbance of the public order. If this argument without obvious limitations were accepted, it would destroy the right to freedom of speech, which is the very foundation of democratic way of life. Unless there is a proximate connection between the instigation and the public order, the restriction, in our view, is neither reasonable nor is it in the interest of public order. In this view, we must strike down section 3 of the Act as infringing the fundamental right guaranteed under Article 19(1)(a) of the constitution.The court here firmly recognises the right to agitate and protest, while at the same time safeguarding the right to freedom of speech and expression by laying down the bar for when speech can be limited in the interests of public order.

In Kedar Nath Singh vs. State of Bihar, a constitution bench of the India Supreme Court observed that section 124A of the IPC was made in 1870 during British rule, but after the Constitution of India came into force in 1950, it must be given a narrow, and not literal interpretation, otherwise it will become unconstitutional.

For progress there must be freedom to think, freedom to discuss, freedom to express one’s opinions (even if distasteful to the majority), freedom to criticise and freedom to dissent. An idea may be disagreeable to the conservative majority, yet it should be permitted to be expressed.

As pointed out by John Stuart Mill in his celebrated essay On Liberty:

All progress, advancement of knowledge and progressive change and improvement of old ways of thinking, and the consequent old behaviour-patterns, habits, customs and traditions can come about only from free individual dissents and dissentions, innovations, etc., which are at first usually resisted by inert or conservative people (who are usually the vast majority), and by a free competition between the old and new ideas. In any society ordinarily the majority shares old thoughts and traditions, and there is a strong tendency to insist on conformity and collective unity or solidarity, to repress dissents and innovations, and to tolerate only what the majority agree with. This inevitably works to prevent any progress and to thwart the creative impulses of the more creative and original minds. Extensive freedom to dissent and innovate, in all spheres of life, activity, culture and thought in all directions, including expressing ideas initially thought strange and often disliked by the conservative tradition-bound majority are indispensable for progress.The intellectually advanced and creative individuals are often in the minority, and are regarded as non-conforming eccentrics and deviants, and there is often a tendency to suppress them. This is why liberal democracy, i.e., majority rule but qualified and limited by firm protection of minorities, and individual rights and liberties, even as against the governing majority, is essential for progress. The majority often consists of mediocre persons who wish to continue in the old ways of thinking and practices. Hence the liberties and rights have to be guaranteed to the often powerless tiny minorities and lone individuals so that progress can take place.

In view of the above, I submit that mere demands and slogans for azadi, etc., will not be crimes unless one goes further and commits violence, or organises violence, or incites imminent violence. The JNU students and Amnesty India neither committed, nor organised violence, nor called for immediate resort to arms. Hence, in my opinion, they committed no crime, and the charges against them should be dropped.

Political graffiti in Kashmir. Credit: Kashmir Global/Flickr CC BY 2.0

Not illegal but illogical

That having been said, I totally disapprove of the demand for azadi for Kashmir or any part of India. The test of every system is primarily whether or not it raises the standard of living of the people. Azadi can only be a means to an end, not an end in itself. The end must be raising the standard of living of Kashmiris. If it can be demonstrated that azadi results in raised standards of living for the Kashmiri people, i.e., if it could create large scale employment for the Kashmiri youth, provide healthcare for them, alleviate poverty, provide nutritious food, etc., I will support the demand. But it is certain that the azadi being demanded by many Kashmiris will lower the standard of their living, far from raising it. Azadi for Kashmir will result in Islamic revivalism, imposition of Sharia law in Kashmir, etc., which will be disastrous for Kashmiris as it will drive Kashmir into the dark middle ages. The separatist leader and chairman of the Hurriyat conference, Syed Ali Shah Geelani’s mentor was Abdul A’la Maududi, who propagated Islamic revivalism, and strongly opposed secularism and womens’ emancipation.

S.A.R. Geelani. Credit: Twitter

Geelani’s ideology, and that of other separatists, appears to be the same. Otherwise why do they not disclose what is their plan for raising the standard of living for the people of Kashmir, assuming azadi is achieved? They are totally and deliberately silent about that. Burhan Wani was turned into a hero by many Kashmiris. But to my mind he was only a pawn being used by certain vested interests. What was Burhan Wani’s ideology? Was it Islamic fundamentalism? What were his plans for raising the standard of living of Kashmiris once azadi is achieved? Did he even think about this? Umar Khalid of JNU compared Burhan Wani with Che Guevara. But Guevara had an ideology and a plan (whether one agrees with it or not). How can the two be compared? Kashmir is too small and economically backward to survive as an independent state. So azadi, even if it is achieved, will soon thereafter result in Kashmir coming under the Pakistani military jackboot and imposition of the feudal, outdated Sharia law and Wahabism.

It is true that there is communalism in the rest of India too, but it is nothing compared to what is happening in Pakistan. Ahmediyas, Shias, Hindus, Christians, etc., are regularly killed there by the religious bigots. Recently, a Hindu doctor of Karachi was killed. What was his fault? That he was a Hindu. Blasphemy laws are applied to victimise innocent minorities. Earlier this month, about 70 people were killed and over 100 injured in a bomb blast in a hospital in Quetta, many of them lawyers and journalists. Journalists who write independently are regularly killed. People are afraid of speaking out openly in Pakistan. Do Kashmiris really want to be a part of that society? If they do not, then the demand for azadi is totally reactionary and illogical.