Ordeal of battle

William the conqueror introduced in England the method of trial called 'ordeal of battle'The mode of trial was simple, the plaintiff and defendant in a civil suit or the prosecutor in a criminal trial fought each other.Both parties to the litigation were required to be engaged in physical combat.only women and church were permitted to appear by their champions and the champion was the precursor of the modern Advocate. It was assumed that in such physical combat God would help the party which was in the right.The party who was beaten was pronounced to be guilty and the party who won was declared innocent and to have justice on his side.The method of employing an 'Advocate' to appear in place of litigant was extended later from priests and women to other categories of litigants.   In the 13th century the most famous 'Advocate' to appear in place o litigant was Gladiator called William Graham .It is an interesting comment on eternal spirit of private enterprise that a businessman soon employed him on a good salary and then he let out for a certain fee per fight Grahams services to any litigant.Graham was the most successful 'Advocate'.when he was engaged by any party the case usually went uncontested.                                                                                This is a passage from Mr palkiwala's book,we the people. This law was repealed in England in 1819,I wonder whether any thing changed .

Food for thought

Govt of India maintains whole of J&K as it existed on 15th of august 1947 is an integral part of India and therefore it calls part of it under Pakistan control as Pak Occupied Kashmir [pok]. Recently, I had an occasion to meet Justice Manzoor Geelani,  a former Chief Justice of Azad kashmir (POK). He told me that this stand of India is not even supported by Indian Constitution. What followed was surprising to me and  I am sure will surprise many.
Let us first see the relevant provisions of J&K  Constitution for TERRITORY OF THE STATE - The territory of the state shall comprise all the territories which on fifteenth day of August 1947, were under the sovereignty or suzerainty of the Ruler of the State. There is no confusion or ambiguity as to what territories constitute Jammu & Kashmir. But now see the provisions of constitution of India Art 1 reads:
 [1]  India that is Bharat shall be a  union of states.
 [2]The states and territories thereof shall be as specified in the first schedule..
Reading of this Art would mean that territories and states mentioned in schedule one only will be constituents of  Indian union.  Entry 15 of schedule one deals with J&K and mentions,'THE TERRITORY WHICH IMMEDIATELY BEFORE THE COMMENCEMENT OF THIS CONSTITUTION WERE COMPRISED IN THE INDIAN STATE STATE OF JAMMU AND KASHMIR'/ Constitution of India became operative from 26th Jan 1950 and on that date part of J&K was not 'Indian Territory'
 I am purposely not giving an opinion as I hope it will generate some debate and I should wait for opinions of others.

Book reading

Every book has three parts- part one contains what you already know, part two is what you need not know, it is only part three which you need to know and must read. This is what Justice Hidayatullah advised students of Aligarh Muslim university while delivering a convocation address four decades ago.This he had learnt from a class fellow in England with whom he was competing for 1st position.
I have been practicing this theory from the day I heard the speech and was convinced about its correctness till recently. I purchased a book for almost Rs 1000, tried hard to find 3rd part but failed, could not give up as I had invested Rs 1000, so started reading from cover to cover 1100 pages.Theory in which I believed in for 4 decades became doubtful as the book I read had only one part, the part I never needed to know.

Again a failiure?

LIBERALS,selective

More and more states are enacting laws to make cow slaughter a cognisable offence.Perhaps j&k the only Muslim majority state has the distinction of having enacted such a law before any other state.on jan 3,2012 News papers reported that a jam mu court convicted two persons for cow slaughter and awarded a sentence of two years rigorous imprisonment and a fine of Rs2000 to each.
Every society has its own set of laws based on the value system and sensitivities of its constituents and this case did not surprise me.There is a law making cow slaughter an offence keeping in view the belief of millions of Indians who almost worship the cow,
What is surprising me is the reaction of so called English speaking liberals when some body questions the writing of an author on the ground of freedom of speech
I would have perhaps agreed with them had they not been selective.If an offence is committed by a celebrity like Rushdie or Hussein these people are up in arms and TV channels open there studios for Talk shows to these men and women,but if there are two poor boys committing an offence of cow slaughter it does not catch there imagination.What Rushdie or Hussain did is an offence under our laws as what these two jummu boys did is also an offence. Why are our these 'intellectuals 'selective'. I leave it to my readers. .http://www.earlytimes.in/newsdet.aspx?q=86535

Remembering shastri ji

To day is 46th death anniversary of one of the great indians,who came from a poor family and died as prime minister of India.lived a poor mans life even when he was prime minister.History has its own ways of forgetting and remembering people.
Today in the morning as usual i was going through pages of TIMES OF INDIA,on page six a paid advertisement caught my eye because of a photograph of shastri ji.The advertisement is published by shri P.N. Mahotra retired Asst commissioner of police and it reads as under,' REMEMBERANCE IN EVERLASTING MEMORY OF BHARAT RATNA SHRI LAL BAHADUR SHASTRI Ex Prime Minister of India son of Mother India on his 46th death anniversary'.
This is the reality of world,this can happen to shastri ji what will happen to lesser mortals.

Rather snubs Omar

The chief minister mentioned three circumstances which indicate that Altaf was murdered.He was fired at from a close range,two bullets were pumped in his chest and thirdly incident occured outside the premesis of NHPC.
The chief minister was of the opinion that persons involved deserve death penalty.He assured he will do all possible to bring people involved to justice.For this purpose he will knock at every door.
Almost at the same time when CM was making this statement his senior minister Mr Rather was singing a different song in jammu.Rather said govt is not even remotely responsible for the death of Altaf.Office of an institution was attacked and security personnel of that institution fired in self defence resulting in Altafs death.
Will the CM sack Rather,he belongs to his party and he has not to take permission from any body in Delhi.If he fails to act against Rather we will be justified in believing that CM was not serious while making his statement.

What about ineffiiciency

Anna has brought issue of corruption to centre stage.His success lies in the fact that every body including corrupt talk of corruption.political class is divided as for as new law for curbing corruption.For many months now we are hearing opinions of politicians and members of 'civil society'.
What is baffling me is that no one talks how can in efficiency of public servants can be addressed. Legally speaking presently inefficiency is not misconduct and ppl in public service can only be removed for misconduct.
Article 311 of constitution in fact guarantees that a public servant is not removed,dismissed or reduced in rank,unless misconduct is proved.Similarly a judge can not be removed except for 'proven misconduct;.If a govt servant through out his carrier is not able to even clear a single file he can not be removed from service.If a judge is not able to decide even a single case in two decades of judgeship,he can not be removed.
In my view ART311 needs to be amended.Similarly ;misconduct far as judges are
are concerned.
Ministers at present can not be removed for inefficiency.A law is required to solve this issue as well.

Dilip kumar's aura

"In parapsychology and many forms of spiritual practice, an aura is a field of subtle, luminous radiation surrounding a person or object (like the halo or aureola in religious art). The depiction of such an aura often connotes a person of particular power or holiness. Sometimes, however, it is said that all living things (including humans) and all objects manifest such an aura. Often it is held to be perceptible, whether spontaneously or with practice: such perception is at times linked with the third eye of Indian spirituality. Various writers associate various personality traits with the colors of different layers of the aura. It has also been described as a map of the thoughts and feelings surrounding a person."

This is how wikipedia explains Aura. I am not sure whether every person emits this aura or not, but in my life I have experienced such 'aura' in three people. Besides my father, I have felt very small in presence of Sheikh Mohammad Abdullah and Dilip Kumar. I was not able to look straight into their eyes.

NO WILL

Armed Forces (Jammu and Kashmir)Special Powers Act, 1990 is a Central Act.This Act can be enforced in an area which is declared to be a disturbed area either by Central or by the State Govt. The Jammu and Kashmir Govt, on 6/7/1990, issued a notification declaring certain areas to be disturbed in terms of section 3 of the ACT.

The AFSPA, in the state of J&K, is thus operative because of 6th July notification issued by the State Govt.

It is well settled principle of law that an authority who has power to issue a notification has power to revoke it. Therefore, I have no doubt in my mind that if State Govt wants, it can revoke or modify the 6/7 notification.

Why is then the state CM going door to door seeking revocation from areas which according to him are not disturbed?

SPECIAL STATUS

A month earlier in Srinagar i felt need of a sim card.I went to a dealer ,he demanded a photograph and my ration card.I told him i had no ration card .After some discussion he agreed to give a sim card on production of my pan card,pass port and an electricity charges bill.I produced all the documents the sim card is yet to be activated.The company is IDEA and the phone number is 9086618021.
A few days before i came to Delhi again felt need of a sim card ,went to a dealer ,produced my passport and a photograph,that was it ,i got sim card and in ten minutes it was activated.The company was again IDEA.
Do you still have any doubts that we enjoy special privileges and status in Kashmir.

justice saghir ahmad and public safety Act

Justice syed saghir Ahmad was a fine judge,honest capable and fearless.He was polite and soft spoken.He was transferred from Allahbad high court to j&;k high court as a judge and later on appointed chief justice.

During those days i had the privilege of being Advocate General of the state.Asiya Andrabi had been detained under the provisions of Public Safety Act.The detention had been quashed twice but as usual after release she would be arrested again.It was case related to third detention which was heard by Justice Ahmad.Before announcing the judgment in the court he called me to his chamber.unusually he was not courteous but even rude,although he treated me like his brother.He loved me so much that he would himself cook Biryani for me.

I was surprised to see a different justice saghir,he started,'Mr Advocate general,do u think we are jokers,why don't you lock the courts,twice earlier detention of this lady is quashed,yet she is in jail,i am quashing it again and i want orders implemented,if orders are not implemented i will resign'

From press reports it appears Asiya is again under detention and her detention has been quashed several times ,is there no justice saghir around?

Five questions

Three people close to Home Minister Chief Minister and NC supremo are summoned by home minister to chief Ministers residence.They meet Chief Minister and it is established that one of them had received more then a crore of Rs from the other two.One of them wanted to be a legislator and Minister the other one a legislator.The Money according to deceased was to be paid to Mr Farooq abdullah.
The man who admitted having received money died within 24 hours of his admission before CM in police custody.He was handed over to waiting inspector general of police by CM.

Very trusted personal security officers of CM were transferred same night.
The facts above mentioned by me are based on Chief Minister's statements and i am not purposely referring to various statements made by others.Legally speaking these are admitted facts.these facts raise many questions which have to be answered.
1.Whether the deceased had received money for himself or somebody else.if it was some one else who is he?
2.If a complaint had been made to CM two months before,why did he sleep over the matter?

3.Why did home minister behave like a head constable and chief minister like a sub inspector?
4Under what law CM ordered arrest of deceased?
5.Under what law inspector general crime arrested and detained deceased?
Will the CM,HM OR INSPECTOR GENRAL SHOW THE COURAGE OF ANSWERING THESE QUESTIONS?

COMMISSION OF INQUIRY

There is some confusion about the power of the state govt with regard to appointment of a commission of inquiry under the commission of inquiry Act in legal and political circles.Media has also not been able to clear the confusion.Therefore i though it better to try to clear the confusion on an issue of public importance.
It is true that state govt has power to appoint a commission of inquiry,but when it comes to appointment of a sitting judge,the power is not absolute.There are two restrictions one created by another statue and the second one created by a judgment of supreme court.
There is an Act known as 'THE HIGH COURT JUDGES [SALARIES AND CONDITIONS OF SERVICE ACT]1954.
This Act defines 'ACTUAL SERVICE' of a judge in following terms.'TIME SPENT BY A JUDGE ON DUTY AS A JUDGE OR IN THE PERFORMANCE OF SUCH OTHER FUNCTIONS AS HE MAY DISCHARGE AT THE REQUEST OF PRESIDENT OF INDIA---'
So it is clear if a judge accepts an assignment with out a request from president of India ,it will be in violation of the law.For president to make such a request,she has to be approached through the union council of Ministers which is a requirement under constitution.
The second restriction is place by a judgment of supreme court which says that because of huge pendency and some other reasons sitting judges should not ordonarily be appointed as commission of inquiry.The judgment is reported inFEMN WALTER V/S UNION OF INDIA

MUCH BETTER THAN SON

There is an old story about a village, a water spring and a man. The water of the spring was used by whole village for drinking and a man in the village had a strange habit of spitting in the spring everyday without fail. All villagers tried everything possible to stop the man from spitting but failed. The villagers ultimately took it in their stride and lost all hopes to drink 'un-spat' water. Years passed by and a day came when the man died. People of the village were happy at the death of the man and were congratulating each other. But their joy lasted only for a single night and the next day they discovered that the son of the deceased had started urinating in the spring. Everyone in the village started mourning the death of the man and each one was heard saying that the deceased was much better than his son.

Amnesty and rule of law

Last year in Kashmir was very bad.The whole summer we had disturbances.We lost more then 100 children to the bullets.A day before CM announced 'Amnesty' to those stone pelters who were not involved in acts of arson or causing damage to property.According to press reports 1200 boys are getting to be benefited,which means 1200 children were in jail for a year for stone pelting.
I wrote on my tweet that even if these boys had been convicted in a trial they would have not got a sentence of one year,therefore where is the question of amnesty.they underwent a sentence for a period more then what they could get even if charges against them had been proved.
Some friends have taken exception to my comments.As i could not reply in 160 letters i decided to blog.Those of my followers who know my background will realise my commitment to rule of law.On that principle there can not be compromise.Those who have read my earlier blogs will bear me out ,that i only plead for adherence of rule of law.
If a man like Ajmal kasab has a right to fair trial can this right be denied to children accused of stone pelting without causing any damage to any person or property
If any police man got killed or injured by stone pelting,persons responsible should get punished through due process of law.similarly if 120 children were killed,the justification or otherwise of such acts should also be decided through due process of law.
I neither condemn any act nor approve any act,because i am not in a position to know full facts of each incident.May be police was justified,may be not.May be a stone pelter was justified may be not.THESE QUESTIONS NEED TO BE ANSWERED BY COMPETENT INSTITUTIONS.
In a civilised society u can not keep a person in custody for years with out trial.If people at the helm understand this basic principle you may have not to decide 'Kashmir issue'

DON'T BURN YOUR SHIRT FOR KILLING A LICE

'We the people of India----enact and give to ourselves this constitution'. This is the preamble of our constitution and every Tom, Dick and Harry for some time now has been repeatedly quoting first three words of preamble, i.e. 'we the people'. These people forget what has been the resolution of people of India - The resolution is that people of India will govern themselves in accordance with provisions of the constitution.

The constitution broadly creates a federal structure for governance. It envisages elected legislatures for central and state governments. It also ensures elections at regular intervals.
I have no dispute with those who believe corruption is all pervasive in this country and very serious efforts are needed to get this menace under control. I also agree that the parliament and state legislatures have failed in their duty to give people of India a clean, efficient and responsive govt. As such one can not have any dispute with Shri Anna Hazare.

In order to make parliament to do what people of India want them to do, people of India are also bound by the constitution. As u can not have an extra constitutional executions u can not have legislations by extra constitutional powers. Unfortunately never in any elections so far has corruption been presented as an issue.
The question could be asked, how do we make parliament to pass an effective anti graft law? The answer would be make it an issue go to people, come to power and legislate. If it is not possible create public opinion in favour of your thoughts so that political parties at elections promise to do what u want them to do OR raise the public opinion to such a pitch that the rulers make the laws u want them to make.
In such a case, govt of the day should get scared of a possible defeat in next elections.
In this scheme of constitution there is no scope for coercion. Anna's methods cannot be supported by anyone who believes in constitutionalism. These methods are dangerous. Anna has been able to collect a few lakh of people across the country and is fasting. Unless parliament signs on dotted lines he will not break his fast.
Maybe he is doing it for a good cause. However, if this becomes a precedent, it could be used for dangerous causes too.
Imagine Shri Narindar Modi going on fast till Muslims are disenfranchised. Can't Mr Modi collect more people then what Annaji has been able to collect?
We have problem of corruption. Fight against it but not at the cost of system. After all, what makes India different then those countries which got Independence in last century? It is the institutions it has built. Don't destroy them. Improve there functioning.
I will close this blog with an old Kashmiri proverb, 'u don't burn ur shirt for killing a lice'

OOPER KEE KAMAI SAY HE GUZARA

Whenever an institution is created and established, the creators prepare a blue print -Why the institution is created, what will be expectations from that institution, and what will be function and duties of persons who man such an institution.
Decades before, I must have heard english proverb, 'cart before horse'. For the first time, but its meaning I have clearly understood now.
With great enthusiasm we elected thousands of punchs and surpunches but without knowing any thing about their job.
These elections were interpreted differently by different people,but the fact is they created a hope.
Since these people do not know what are they expected to do,they are individually trying to create a job profile for themselves. They are elected but do not know anything about their duties, have no remuneration, and have started making a fortune out of uncertainities.It is reported they have become 'sufarishies' for a price. They interfere in govt functioning, one punch reportedly even went to the extent of closing down a school. Another reportedly thrashed a block official. Some of them are seen permanently in tehsil offices. It appears govt has taken a lesson from an old story related to Maharaja of Chenani, the story goes as follows:
Maharaja appointed an IGP who was a retired DSP of Maharaja Hari singh's police. Chenani had no criminal code or criminal law, and thus the IGP was law to himself and he was enjoying. The only worry he had was that he was not getting his salary, so he made an application after six months to Maharaja for release of his salary.
It is said Maharaja wrote in reply to his application - KHAZANAY KEE HALUT PUTLEE HAI FILHAL OOPER KEE KAMAI SAY HE GUZARA CHALAYA JAAYE.

ASHRAF'S ADVENTURES

Mr. Ashraf is writing a travelogue which is being published in a local daily in installments. There must be many enjoying 'Ashraf's adventures' as he titles this travelogue.
Every installment highlights in a box and in bold letters, 'DURING MY TENURE IN STATE TOURISM I HAD THE OPPORTUNITY OF TRAVELING TO AMERICA, EUROPE AND MIDDLE EAST, SOME OF THE JOURNEYS WERE QUITE ADVENTUROUS AND EXCITING'
I read this travelogue as an obituary of my motherland.This man traveled the globe at the cost of the State. Enjoyed air travel, five star hotels, chauffeur driven Merc's and what did the state tourism get in return? This story is not of one Ashraf. We have seen thousands of them. Politicians bureaucrat's and power brokers. Many of them have reportedly properties worth billions across the globe.
This is the real story of Kashmir and its miseries,we have been feeding parasites who have been sucking our blood. We don't have even a walkable foot path around boulevard. Our grand children may have to go to Chandigarh to see a lake.
If i were somebody i would use this travelogue as charge sheet against Mr Ashraf and many others.

Those who are my age or elder to me or even slightly younger to me must have fond memories of travelling in a tonga. It was sheer pleasure with commentary by tongewala. His hand operated horn poon poon and his verbal instructions to pedestrians always thrilled. 'hatbin razebaeyee, hay topila etc etc.
There were two ways to travel in a tonga, either u shared tonga with fellow passangers or u 'chartered' it.chartering would be called 'full tonga'
I had a dream in childhood to travel around Dal lake in a 'full tonga' along with my wife. By the time I married tongas had vanished from Srinagar. My dream got shattered but I did not lose heart and updated my dream. Wanted to travel around Dal lake with my wife in a self owned car. By the time I owned car Dal lake had vanished.
So this time also my dream did not come true, undaunted I have updated my dream. Want to construct a small house over a plot of land within Dal lake when whole Lake becomes dry. But hope this dream also does not come true.