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Thursday, November 22, 2012

Separatists, clergy target two J&K High Court judgments

20 November 2012 , By Ahmed Ali Fayyaz

SRINAGAR: For the first time in over two decades, separatist groups and a section of the clergy in Kashmir have joined hands, and roped in fragments of the intelligentsia, in their attempt to reverse two recent judgments of the Jammu and Kashmir High Court.
One, delivered by Justice Hasnain Masoodi, puts unprecedented tabs on a Muslim husband’s right to arbitrarily terminate a marriage. Another, by Justice Mansoor Ahmad Mir, interprets life imprisonment as the convict’s lifelong detention in jail.
Jamiat-e-Ahl-e-Hadith (JAH), a religious organisation headed by separatist leader Maulana Showkat Shah until his killing at a mosque here in April 2011, has taken the lead in dismissing Mr. Justice Masoodi’s judgment on talaaq as “an unacceptable interference in the matters of the religion of Islam.”
On November 4, the JAH organised a meeting of different religious groups and intellectuals to discuss the import of the judgment and to assert that the ruling would meet a tough resistance if it was not withdrawn forthwith. Critics of the judgment included a number of leading lawyers, clerics and separatist politicians.
A former High Court judge Bashir Ahmad Kirmani and some prominent legal practitioners, however, prevailed upon the forum with their argument that an anarchical reaction would not serve any purpose. They went in appeal to the same judge.
Mr. Justice Masoodi decreed that both partners of a marital union had equal rights in Islam, and the husband’s competence of pronouncing divorce was not arbitrary, unqualified or absolute. His ruling came in a civil suit, in which a divorcee had challenged her husband’s manner of separation and sought maintenance as a matter of right. However, contesting her petition, the husband argued that he had divorced her and was not under any obligation to pay her alimony.
The judge details the Shariah and Quranic injunctions to find support for the ruling that “husband cannot have unrestricted or unqualified power to pronounce talaaq.”
In its immediate reaction, the JAH said non-theological courts of a democratic set-up had no competence to adjudicate matters defined in the Quran and Hadith. “If this judgment is accepted today, the man-made courts would be judgmental tomorrow on all other religious matters of the Muslims. This has never been acceptable to Muslims in the past, nor would ever be in future,” it said in a statement.
With many of the Valley’s clerics, politicians and civil society members dragging Mr. Justice Masoodi’s judgment to a public discourse, Hurriyat hardliner Syed Ali Shah Geelani and constituents of his secessionist umbrella have started targeting Mr. Justice Mir over his November 16 interpretation of imprisonment for life. Dismissing Muslim League chief Ashiq Hussain Faktoo’s petition, the judge ruled that life imprisonment meant lifelong detention until the state used its prerogative of reducing the term.
In their frontal attacks on the judge, some separatist leaders made uncharitable remarks, including allegations of “working under political influence.”
Dr. Faktoo is not the only separatist leader affected by this judgment. As many as 19 people, including the author of Mr. Geelani’s biography, Dr. Mohammad Shafi Shariati, a former Professor of Persian at the University of Kashmir who later became a top functionary of the radical militant group Jamiatul Mujahideen, are serving life terms. Their families and organisations have been awaiting their release on their completing 14 years of imprisonment. Mr. Justice Mir’s ruling has virtually sealed their fate.
Advocate-General Mohammad Ishaq Qadiri; senior advocate Zaffar Ahmad Shah; the former judge of the Jammu and Kashmir High Court and Chief Justice of Odisha High Court, Bilal Nazki; and the former Law Minister, Muzaffar Hussain Baig, said invariably that a public discussion on court judgments was a “legal, constitutional and democratic right” of every member of the society. However, Mr. Qadiri, Mr. Shah and Mr. Baig told The Hindu that the best way of seeking remedy was the forum established under law and the Constitution.


Tuesday, November 20, 2012

Failing to secure key ideologue’s release in court, secessionists hit the streets


SRINAGAR: Having lost a long-running legal battle to secure the release of high-profile ideologue Ashiq Hussain Faktoo in Jammu and Kashmir High Court last week, radical secessionists in Kashmir have turned to the streets seeking their leader's release.
Large parts of the Kashmir valley shut down on Monday in response to calls from Syed Ali Shah Geelani's faction of the Hurriyat Conference and the Muslim League--a party led by another key secessionist leader who is in prison, Massrat Alam Bhat.
Earlier a top-ranking commander of the Islamist guerrilla outfit Jamiat-ul-Mujahideen (JM), Mr Faktoo has been serving life imprisonment awarded to him by Supreme Court on account of his involvement in the assassination of a noted human rights activist Hridhay Nath Wanchoo. Mr Wanchoo was kidnapped by the JM militants and his bullet-riddled body was later recovered in a locality in close vicinity of then J&K Police headquarters in December 1992.
After Mr Geelani, Dr Faktoo’s profile remains unmatched among the separatist leaders for a variety of reasons. Husband of the equally prominent separatist activist and Dukhtaraan-e-Millat (DM) chief, Syeda Asiya Andrabi, Dr Faktoo enjoys the distinction of being the only Kashmiri militant who has completed Ph D during his 13-year-long continued detention. Dr Faktoo, as also Chairman of so-called moderate faction of the Hurriyat Conference, Mirwaiz Umar Farooq, has been awarded Doctorate of Philosophy by the Department of Islamic Studies of the University of Kashmir in the last two years.
During his detention, Mr Faktoo has joined as head of Muslim League. His deputy, Massarat Alam, played arguably the most important role in the street agitation over Amarnath land row in Kashmir in the year 2008.
Legal battle:
Earlier this year, Dr Faktoo had made a representation to the state government, seeking termination of his detention with the argument that life imprisonment meant imprisonment for 14 years. His application was also based on the fact that the Srinagar Central Jail authorities had appreciated his conduct and behaviour, including his voluntary assignment of teaching IGNOU distance education courses to a number of jail-mates.
However, the state Home Department dismissed Dr Faktoo’s representation on the ground that the precedent of reducing the term of imprisonment was by no means binding on the government. Subsequently, his counsel and former head of High Court Bar Association, Mian Abdul Qayoom, who himself represented HCBA as a Hurriyat constituent for about ten years, challenged dismissal of Mr Faktoo’s application in High Court.
In his November 16 judgment, Mr Justice Mansoor Ahmad Mir dismissed Dr Faktoo’s petition, ruling that the life imprisonment meant ‘imprisonment for entire life’. Justice Mir referred to a number of Supreme Court rulings, including Swamy Shradananda vs State of Karnataka, AIR 2008 SC 3040, and decreed that “punishment of imprisonment for life handed down by the Court means a sentence of imprisonment for the convict for the rest of his life”.
Mr Geelani came out with the first reaction from Hurriyat as he publicly attributed motives to Justice Mir’s judgment and dismissed it as an extension of “political vendetta”. Calling for a protest shutdown, he threatened to launch an agitation if Mr Faktoo was not released from jail.
“In 2009 the Chief Minster had said that he will look into the case and do justice accordingly. But recently in an interview with the Hindustan Times, Mr Abdullah said that he wanted to see Dr Qasim in jail for whole life. It directly shows that the decision has been given at the behest of the Chief Minster,” Geelani said addressing a press conference at his residence on Saturday last. He alleged that the courts in this state and the country were not “free from the influence of occupation”.