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The nuances of 35A

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By Pratap Bhanu Mehta

The political legitimacy of the Indian state in Kashmir hangs on a very slender thread. This thread is the legitimacy of the Instrument of Accession, and the negotiations with Sheikh Abdullah in 1949, which led to the adoption of Article 370. We can heap the easy condescension of posterity on the constitutional arrangement that resulted. But the truth is this is the only mechanism that allows the Indian Union to legally exercise power in Kashmir. Abrogating that mechanism is not just abrogating a specific policy we may dislike; it is repudiating an important part of the legal edifice on which India’s claims rest. All that then remains is force and domination.
There is also the ground truth that the Indian state has a long record of betrayal of promises, democratic values and trust. The situation on the ground is impossibly oppressive, as if Kashmir is in the throes of a death wish. There is something to be said for a more nuanced debate on 35A, which I will come to shortly. But abrogating 35A under the circumstances would be playing with fire — the last act of betrayal.As a matter of law, the status of the article has been considered by the Supreme Court in the past. In at least two significant cases, PuranlalLakhanpal vs President of India and Others (1962) and Sampat Prakash vs State of Jammu & Kashmir (1969), the Court had settled one of the issues of contention, whether modifications could be carried out by a Presidential Order. Another interesting case, not on 35A directly but one which has a bearing on the constitutional status of Presidential Orders, is a judgment by Rohinton Fali Nariman and Kurian Joseph in State Bank of India vs Santosh Gupta.
In Madhav Rao Scindia vs Union of India, the Privy Purse case, the Court did uphold the idea that the Indian state needs to honour the terms and conditions laid out in different instruments of accession. It was in this spirit that in the Bachan Lal Kalgotra case, Justice Chinnappa Reddy, in a rare case of judicial forbearance, took the view that essentially laws governing Jammu & Kashmir are part of a political settlement, and it is essentially upto the political process to modify the terms of the settlement, not to look to judges to shortcircuit what should be a political negotiation. This may still be a wise position to take. In some ways, the Court is facing the consequences of shortcircuiting the political process in the Assam cases.
This is one route the Court can take. Politics must fix what politics broke. But this may not be entirely satisfactory. There are some real normative issues here. From a purely individual rights or economic integration perspective, the case for 35A is not clear-cut. At the broadest level, there is the contention of the petition that any restrictions that differentiate between residents and non-residents are inherently discriminatory. This contention is too wide: It would not only invalidate 35A with respect to Kashmir, but also with respect to several other states including Mizoram, Nagaland and Himachal. It is a measure of how communalised legal debates are that the focus is exclusively on Kashmir. But this contention would potentially invalidate any domicile requirements.
This may be a road we might want to go down. But this means giving up on another principle that underpins 35A. Under some circumstances, restrictions may be introduced to protect local cultural preponderance. This is the principle behind asymmetric federalism and a range of other protections. The challenge is that the application of this principle is deeply politicised. Which local cultural preponderances need to be protected is a function of social mobilisation, history or political sensitivity. So applications are inconsistent: Why should we worry about Assam’s demography being altered, if we are willing to alter Kashmir demography, as many BJP supporters claim? It will be foolish to think this question can be settled outside of political negotiations. Which is why there is a case for honouring treaties, and political settlement; finding some principle here will put stress somewhere else in the system.
There is another worry about blanket exemptions to states: The creation of judicial black holes. Let us, for a moment, assume that 35A is valid, that the J&K Assembly can define the meaning of the term resident. Does the exercise of this power come with no constraints, no requirement that they meet basic standards like Articles 14 or 21? The challenge with identity-based exemptions is they often give carte blanche to local authorities to persist with discriminatory practices. We have seen that in a number of cases were states and communities exercise this power. So one of the contentions in the 35A case is that the way the term resident is defined is discriminatory along gender lines; in some cases, it goes against principles of natural justice, denying long-standing residents rights.
So there are two options here. The first is to say that these injustices can be remedied by other means. The J&K High Court has been, as the Indian judiciary often does, partially remedying these deficiencies. The other option is to say that the Supreme Court can uphold 35A, without making the issue entirely a black box at the mercy of the J&K assembly, when it comes to issues of discrimination. In short, there are more nuanced options that balance competing principles.
But one cannot help remark on the surrealism of constitutional discourse on Kashmir. Ironically, 35A, which was meant to protect the demographic identity of Kashmir, proved to be a parchment barrier against one of the most significant episodes of ethnic demographic alteration: The expulsion of Kashmiri Pandits. Article 370, that underscores J&K’s special legal status, has actually given the Centre more untrammelled power over that state than it exercises over any other state. “Special status” here seems not like a recipe for peace, but a deadly joke all sides want to play. So while there is a powerful historical, legal and political argument for not abrogating 35A, it also behoves us to think beyond the cul-de-sacs in which we are stuck.
We can neither endure the historical patchwork we inherited, nor the means to go beyond it. The first task of statesmanship is to throw cold water, not fan the fires of polarisation. But it looks like Kashmir’s tragedy, oscillating between a heavy-booted state, and a destructive radicalism, will continue.
(Indian Express)


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Opinion

Hajj and the Neglected Legacy of a Great Woman

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By MOHAMMAD OMAR FAROOQ

Islam teaches us to submit completely and whole-heartedly. “O you who believe! Enter into Islam completely, whole-heartedly…” (Quran 2:208)
It also calls for a submission that is spontaneous and conscientious, without any hesitation or resistance against the will and guidance of God. “But no, by your Rabb, they can have no (real) faith, until they make you judge in all disputes between them, and find in their souls no resistance against your decisions, but accept them with the fullest conviction.” (Quran 4:65)
There is great – truly great – news from God. “Those who have faith and do righteous deeds, they are the best of creatures, their reward is with God: Gardens of Eternity, beneath which rivers flow; they will dwell therein forever; God is well pleased with them, and they with Him: All this for such as fear their Rabb (the cherisher and sustainer).” (Quran 98:7-8)
Eid al-Adha is a great and unique occasion of joy and celebration. Ironically, this joy and celebration revolve around sacrifice. It would probably make sense to only those who understand that the joy of giving that touches others’ lives is far greater and deeper than the joy of receiving.
This great occasion of Eid al-Ad’ha is tied to a unique event, the Hajj; a unique city, Makkah; and a unique family, the family of Ibrahim. Indeed, what the Quran refers to the Milla of Ibrahim is essentially rooted in the legacy of a model family. Say: “God speaks the Truth: follow the Milla of Ibrahim, the True in Faith; he was not of the Pagans.” (Quran 3:95)
We cannot discuss Eid al-Ad’ha without remembering Ibrahim, who represents in the Quran an ideal submission. He never hesitated to respond to the call and command of his Rabb (the Creator, the Sustainer and the Evolver). He never considered anything too precious to be withheld when it came to fulfilling the wish of his Rabb. Everything he did was commanded by God, and was fulfilled by him conscientiously with honor and nobility. We are all too familiar with the story of his unwavering faith and conviction, and his supreme sacrifice as embodied in the event when he was ready to sacrifice his dear and only son to fulfill the wish of his Rabb. “Behold! hisRabb (Lord) said to him: “Bow (submit your will to Me): He said: “I bow (submit my will) to the Lord and Cherisher of the Universe.” (Quran 2:131) We know, of course, God didn’t really want him to slaughter his son, he just wanted to see if Ibrahim was ready to submit entirely and unconditionally. No loving God would have exacted such a sacrifice of one’s own child in reality.
Another member of this ideal family was the first son of Ibrahim, Ismail. The Quran presents him as like father like son. “… (Abraham) he said: ‘O my son! I see in vision that I offer you in sacrifice: Now see what is your view!’ (The son) said: ‘O my father! Do as you are commanded: You will find me, if God so wills, one practicing patience and constancy!” (Quran 19:102)
In his submission to the will of his Rabb, Ismail was no less ideal. He submitted to the will of God whole-heartedly and with a heart full of peace and tranquility. Once again, there are very few among us who are not already familiar with the role and position of Ismail in the heritage of Tawheed and the eternal truth.
Going beyond the customary commemoration of the stories of Ibrahim and Ismail, I want to focus here on the not-so-mentioned legacy of a great woman, Mother Hajar (Radhiallahu ‘anha, May Allah be pleased with her) the wife of Ibrahim and the mother of Ismail. Indeed, she is an integral and as important part of the legacy of Tawheed and the Milla (community) of Ibrahim. Her submission to the will of her Rabb and her sacrifice were as ideal as that of Ibrahim and Ismail. God has ennobled her in the Quran by making Safaa and Marwah integral to the performance of Hajj, one of the five pillars of Islam. These are the two hills between which she ran back and forth in search of water for her beloved infant son, while she was all alone according to the plan of God Himself. “Behold! Safaa and Marwah are among the symbols of God. So if those who visit the House in the Season or at other times, should compass them round, it is no sin in them. And if any one obeys his own impulse to Good, be sure that God is He Who recognizes and knows.” (Quran 2:158)
If the readers have not read already, I invite them to read the Hadith containing details of her story in Sahih al-Bukhari (Vol. 4, #583, Book of Ambiya or Prophets).
Mother Hajar was not just a wife of Ibrahim, but she was deeply loved by him. But, once again, to fulfil the wish of God, he brought Mother Hajar and their beloved infant son, Ismail, to this abandoned, desolate, barren valley of Makkah. There was no such inhabited place called Makkah at that time.
As Ibrahim brought Mother Hajar and Ismail to that barren, rugged valley, she asks (as in the Hadith): ‘O Ibrahim! Where are you going, leaving us in this valley where there is neither any person nor anything else (to survive)?’ She repeated that to him many times, but he did not look back at her. Then she asked him, ‘Has God instructed you to do so?’ He replied, ‘Yes.’…
That was enough for Mother Hajar. Now she knew that it was according to the Divine Will. With the same nobility and dignity of faith as it ran in that family, “She said, ‘Then God will not neglect us.’ (In another version): ‘I am pleased to be (left) with God.’
Then Ibrahim left and she was alone with her infant. Makkah was not an inhabited place yet. Food and water that Ibrahim provided them with were consumed by the mother and baby. Desperately, she started searching for water running back and forth through the valley between the hills of Safaa and Marwah. Surly Allah would not abandon the family of Ibrahim and so, she was visited by the arch-angel Jibril. This is an significant point to ponder: What kind of person is visited individually by Jibril?
Water, in the form of an ever flowing spring, the Zamzam, was made available to them by direct intervention of God. Right during that time, the tribe of Jurhum, passing by the valley saw birds flying. Realizing that water must be available, they searched and discovered Mother Hajar and Ismail. They sought permission to settle there. Thus, the desolate valley of Makkah became an inhabited area. Ibrahim returned there much later and laid the foundation of Ka’ba. Makkah ultimately was to emerge as a city and as the perennial heartland of Tawheed, the belief in oneness of God.
Subhanallah, God is glorified. He took such a significant and noble service from a woman. But consider another aspect. What kind of situation Mother Hajar was placed into? In that desolate, uninhabited valley, what might have been going on in her mind?
While unconditionally committed to her Lord, she was constantly searching, moving and struggling not thinking about herself any longer, but to find some water and save her child. What could she think about herself? Dr. Ali Shariati, in his well known book Hajj, attempts to provide a glimpse. Once she was slave only to be given away by her Master, a king representing the owning class; now a victim and a stranger, exiled and abandoned by her family all alone with her child in her arms! She hardly ever had a dignified identity. Had she not been the mother of Ismail, who would have given her any recognition and worth? There, in that barren place, her identity did not matter any further. Yet, she reposed her complete trust in her true Lord (Rabb) and was determined to pursue whatever she could in the Way of God.
Now ask yourself. If any human being needs to be identified, whom would you consider the foremost as far as founding of Makkah as a city?* Is there any other civilization, or even a city of this stature, that has been brought about by such primary contribution and sacrifice of a woman? How ironical, unfortunate, insulting and utterly unacceptable that the city that came into existence through the sacrifice and struggle of a lone woman now does not allow a woman to drive a car by herself. Nor does it allow a woman to travel to hajj by herself, even though the Prophet Muhammad himself had the vision that woman would travel someday alone to perform hajj and indeed, the vision did materialize. (Musnad of Imam Ahmad ibnHanbal, Vol. 4, #19397, 19400; Also Sahih al-Bukhari: Vol. 4, #793)
It is so unfortunate that so little about her is talked about even on such pertinent occasion of which she is an integral part. I don’t recall myself listening to any Khutbah that highlighted her faith, sacrifice, and contribution that were second to none; yes, second to none. Indeed, I have read Sahih al-Bukhari before too, until the work of a Muslim intellectual of our time, whose mind is keen about women’s contribution in the heritage of Tawheed, drew my attention to this.*
What men and women can learn from a woman, whose service and contribution ennobled the Hills of Safaa and Marwah to the status of “among the Sign of God,” which must be visited, and whose quest for saving the object of her love must be re-enacted?
From far away as the pilgrims perform this re-enactment, we also want to be like Ismail and have a share of this noble woman’s affection. But there is a greater symbolic implication!
This community of believers follow the Way of Prophet Muhammad, a way that primarily was designed after the Way of Ibrahim and his family. The role that was played primarily by the family of Ibrahim, was broadly assumed by the Prophet Muhammad but now involving not just his family, but the larger community of believers. This community (Ummah) is created for mankind! (Quran 3:110)
As it was true then, it is also true now, the humanity is in pursuit of doom and destruction. Should we not, think of the humanity as Ismail destined for death, to save which love, affection, and restless passion of Mother Hajar are needed again and again? Did not the Prophet Muhammad carry on that mission of mercy and affection, and thus he was the RahmatullilAlamin (mercy for the universe), according to the Quran? Did not his loyal companions fulfil the same mission? Then, does not this community (Ummah) need to be conscious of the trust God has given to them, for which the community will be accountable? What could be a better occasion for us to remind ourselves of that trust and invite ourselves to reflect on this and respond accordingly?
In conclusion, what is there, then, to celebrate?
“Our Lord! Grant us what you did promise to us through your Prophets, and save us from the shame on the Day of Judgment: for you never break Your promise.” And their Rabb (Lord) has accepted of them, and answered them: “Never will I suffer to be lost the work of any of you, be he male or female: you are members, one of another; those who have left their homes, or been driven out therefrom, or suffered harm in My Cause, or fought or been slain; Verily, I will blot out from them their iniquities, and admit them into Gardens with rivers flowing beneath; A reward from the Presence of God, and from His Presence is the best of rewards. (Quran 3:194-195)
For all the toil and struggle, the hardship and sacrifice, the efforts and pursuits, is it not truly deserving of celebration that our works will not be in vain, will not suffer any loss? This is a guarantee from none other than God.
For me, that is more than good enough. With all the worldly promises, guarantees, and warranties that give us a sense of security, one tends to forget that there is also a vast world of deceptions. If we cannot have peace of mind with the promise from God, we have nowhere to turn to. Thus, what could be more worthy of our celebration than the invitation of God to an eternal life of peace, happiness, and prosperity, an invitation that comes with the unfailing promise of God. This, of course, requires that we commit ourselves to the positive and constructive pursuit of bringing peace, happiness and prosperity to the humanity.

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Opinion

The Observance of Eid ulAdha

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By Rida Ghaffar

Eid ulAdha is the second largest religious festival for Muslims worldwide. This occasion is also referred to as the “Festival of Sacrifice”. It is fervently celebrated and marks the remembrance of Hazrat Ibrahim’s (AS) willingness to sacrifice Hazrat Ismail (AS) as an act of obedience to the command that had been made by Allah (SWT). As Eid ulAdha falls on the 10th of DhulHijjah, this year the tentative dates are accounted as the 21st or the 22nd of August 2018, depending on the region.
That they may witness benefits for themselves and mention the name of Allah on known days over what He has provided for them of [sacrificial] animals. So eat of them and feed the miserable and poor. (22:28)
Eid is just around the corner and the shopping sprees for its preparations have begun by fellow Muslims across the globe. From the purchase of sacrificial animals such as goats, cows, lambs and camels to new outfits for this happy occasion. Apart from the embarkment of several Eid preparations, the extensive Ibadaah by Muslims is not behind at all. Muslims all over the world drape this cape of protection around themselves by immersing themselves into constant dhikr around this time.
And do not eat of that upon which the name of Allah has not been mentioned, for indeed, it is grave disobedience. And indeed do the devils inspire their allies [among men] to dispute with you. And if you were to obey them, indeed, you would be associators [of others with Him]. (6:121)
The day of Eid begins with the Eid prayer, offered on the morning of 10th DhulHijjah after the sun rises completely; before the time for the Zuhr prayer starts. This prayer consists of two rakats and is performed with complete devotion worldwide.
After offering the Eid prayer, Muslims are meant to sacrifice the animals and divide out the meat amongst people. As far as the meat distribution of the slaughtered animals is concerned; the meat division is split into three parts; poor, relatives and friends, and family respectively.
In regards to the sacrifices offered, the term Dhabiha is used to reflect the act of slaughtering the animals in the Halal way; pronouncing Tasmiyah (The name of Allah (SWT)) and Takbir; “BismillahAllahu Akbar”. The knife to be used in the slaughter must be razor sharp; straight and smooth. Moreover, the blood should be drained completely before the removal of the animal’s head. In Islam, flowing blood is considered to be impure and highly prohibited for food consumption. The reason behind this is that blood is a good medium for germs, bacteria, toxins, etc. Therefore, Dhabiha is to be done such that the meat is purified and suitable for consumption. Furthermore, the blood should ideally be drained in the corner area of the garden, so that the blood is absorbed by the land rather than being drained directly in gutters. For instance, a devastating sight of blood flooded across the streets of Dhaka was witnessed back in 2016.
Narrated Anas bin Malik: The Prophet said: “Whoever slaughtered the sacrifice before the prayer, he just slaughtered it for himself, and whoever slaughtered it after the prayer, he slaughtered it at the right time and followed the tradition of the Muslims.”
We hope that this Eid will bring immense joy for each Muslim individual and confer ease as they carry out their respective sacrifices. We wholeheartedly wish our fellow Muslim brothers and sisters a very happy Eid!

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Opinion

The Hajj ending in Eid-ul-Adha

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By Ashfaq Hussain

Eid-ul-Adha (‘Celebration of Sacrifice’), also known as the Greater Eid, is the second most important festival in the Muslim calendar. It marks the end of the Hajj, the annual pilgrimage to Makkah (Mecca). It takes place on the 10th day of Dhul-Hijjah, the last month of the Islamic calendar. Although only pilgrims to Makkah can celebrate it fully, Muslims elsewhere also mark the occasion of Eid-ul-Adha.
The Hajj is the Fifth Pillar of Islam and therefore a very important part of the Islamic faith. All physically fit Muslims who can afford it should make the visit to Makkah, in Saudi Arabia, at least once in their lives. Every year around 2 million Muslims converge on Makkah. They visit a shrine in the city known as the Ka’bah, built by Ibrahim (Abraham) and Isma’il (Ishmael) at the command of Allah (God). It is a place for all who want to reaffirm their faith.
Eid-ul-Adha celebrates the occasion when Allah appeared to Ibrahim in a dream and asked him to sacrifice his son Isma’il as an act of obedience to God. The devil tempted Ibrahim by saying he should disobey Allah and spare his son. As Ibrahim was about to kill his son, Allah intervened: instead Allah provided a lamb as the sacrifice. This is why today all over the world Muslims who have the means to, sacrifice a sheep (alternatively a goat or cow can be used), as a reminder of Ibrahim’s obedience to Allah. They usually share out the meat with family and friends, as well as the poorer members of the community. In Britain, the animal has to be killed at a slaughterhouse.
Eid-ul-Adha is a 1-3 day celebration and in Muslim countries is a public holiday. It starts with Muslims going to the Mosque for prayers, dressed in their best clothes, and thanking Allah for all the blessings they have received. It is also a time when they visit family and friends as well as offering presents. At Eid it is obligatory to give a set amount of money to charity to be used to help poor people buy new clothes and food so they too can celebrate.

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