Prof Dr. K. L. Bhatia
New constitutionalism of future definite in Jammu Kashmir is perceptibly a mosaic to achieving the ends of unity and integrity of the Indian Nation under One Constitution One Nation One National Tricolor Flag.
In abrogating Articles 370, 35A, CO 1954 including subsequent CO’s, repeal of Jammu Kashmir Constitution and Reorganization of Jammu Kashmir State in two Union Territories due process of law has been followed. When there seems no aberration or deviation or eccentricity from the due process of law then “aberration Hangama Kiyun Barpa Hai! There ought not to be made scarecrow.
It is my belief that those who have had been habitual of living in the confines of fiefdom “dynasty in democracy” will soon be realizing to come out of its hibernation as well as cobweb and learn to live under the rule/annals of constitutional democracy to enjoying the true fruits of Kashmiriyat, Jamhuriyat and Insaniyat.
Kashmiriyat is the epitome of mutual trust and faith based on communal harmony devoid of communal disharmony. Communal harmony is nonetheless fraternity, that is, common brotherhood — Vasudeva Kutumbkam. This is the Rule of Law that serves the Rule of Life. Jamhuriyat is akin to democracy within the tenets of constitutional democracy, constitutional culture, constitutional ethics, constitutional ethos, and anything short of that is unconstitutional. Insaniyyat falls within the canons of to be humane and live within the precincts of humanity. Right to be humane is in the roots of right to live and duty to let live in peace and harmony. This, in my perception, seems to be the statesmanship avowal and acknowledgement of Kashmiriyat, Jamhuriyat and Insaniyat of late Mr Atal Bihari Vajpayee Ji.
With such a pedigree we all will have to go together with one mission and one vision of all-round progress and development of Jammu-Kashmir-Ladakh lest the above triumvirate goes astray and off track. First, we may have to realize that political differences apart, Nation first. Second, we may have to bring corrective measures of teaching and learning of history from primary school to post graduation to make our youth to emulate nationalism from the pages of history and that ought to be the target of our New Education Policy 2019. For instance, supreme sacrifice of more than 900 brave Indian soldiers who laid down their lives while liberating the Palestinian port of Haifa, a strategic port, from MuslimTurks Ottoman Empire during world war I. Nearly 1,50,000 soldiers led by Major Dalpat Singh from India sent by Maharajas of Jodhpur, Mysore and Hyderabad together with English army with strategic-surgical operations captured Haifa port on 23rd September 1918 through their daring cavalry actions. This remains the singular known incident in the World History where a fortified town was captured by a cavalry on the gallop. The sacrifices of Indian soldiers and Major Dalpat Singh are remembered in the annals of history as the “Heroes of Haifa”. The Government of Israel still continues to recognize the contributions of these war heroes through its mention in their history text books and Memorials for their posterity to emulate the lessons of valor-history. Every year on 23rd September the Indian Army commemorates this ‘Haifa Day’ to pay their respects to brave Indian soldiers. In the backdrop of this, it is submitted that the New Education Policy 2019 must include about such incidents of history that shall aim at dissemination and assimilation of nationalism of nationalist Princes of princely States who acceded to India without ifs and buts including ‘Teen Murti’ in commemoration of the patriotic fervor of three princely States – Jodhpur, Mysore and Hyderabad — in the right perspectives.
Third, 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.
(The author is Former Dean Faculty of Law and Founder Director The Law School University of Jammu; Professor National Law University Jodhpur)
Fourth, recent global administrations declarations supporting Indian Government’s actions as internal sovereign matters have punctured State Pakistan abettor of radicalization. Therefore, clamor for third party mediation appears to be gratuitous and wanton.
Fifth, India is emerging from disaster diplomacy to effective constructive diplomacy to tackle ticklish war against terrorism and militancy. In my concerted opinion India has to adopt two pronged strategies: (i) As a weapon of international politics and diplomacy, India has to adopt diplomatic, economic and other recognized blockade modalities against State Pakistan; (ii) economic, political, diplomatic and moral blockade shall convey a strong message to secessionists, terrorists and abettors. Besides, as a clear signal to the secessionists, terrorists, perpetrators of war and loyalists across the borders, that POJK was, is and will be an integral part of India till infinity. Indian strategists know how and when to fly and flutter Indian tricolor National Flag in POJK. Looking forward for the opportune time since time is the greatest healer!
Sixth, to initiate the process with equitable approach in the new Union Territories for the opening of sports, cricket, skiing, ice-skating, mountaineering, hiking like institutions of international standards to engage the youth to excel in their potentialities.
Last but not the least; conscientious strives will have to be made to renovate new education policy that presents National Agenda, which shall be the catalytic tool that can transform the future of our children and youth of India. NEP is from the precepts of unique socio-cultural-spiritual legacy that continues to enlighten and awaken us, which will revive our great national heritage with fresh interpretation adding different dimensions to Indian education ethos and education trust. This National heritage will harmonise East and West, religion (as understanding science and not blind faith) and science, past and present and the mundane and divine with the genesis of humanism embedded in Aa no bhadra kratvo yantu vishvata – Let noble thoughts come to us from every side. It seems to be a step forward to illuminating cooperative secularism renaissance.
New Education Policy 2019, with these precepts, if ever implemented, shall be pulsating as well as vibrant. NEP in an ocean within a tear emphasizes that education is quintessence of knowledge from foundational learning to higher education inclusive technology and vocational education. Education is embodiment of learning. Learning is a continuous process from cradle to crawl to walk to talk to eternal eternity. Education has been daunted centre since independence and Dr. S. Radhakrishnan Report 1948, Education Policy 1986 and 1992 Reports failed to dent the challenges the education system countenance. Besides, it nonetheless equally seems expedient that New Legal Education Policy in India ought to be with resonance as well as reverberation to bringing cultural and educational renaissance in Indian Legal Education Pedagogy to producing Legends in Law. As such, Centers of Excellence should be expounded in Law Schools to bind the posterity for ages to come.
In mutual trust and faith there is gleaming spark to achieving the aspiring and wannabe goals.
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