By M.G. Vaidya
Is directing party cadres to go to Pakistan and take military training to handle arms for militancy an offence? Is it treason? Is it incitement to wage war against the State? Ignoramuses like you and me, may think that this is a very serious offence, this is treason, but not a learned judge of the J&K High Court. The name of this celebrity is justice O.P. Sharma. In J&K, it is common knowledge, that Shri O.P. Sharma was recommended to the high post of a High Court judge by no less a person than the then Chief Justice, Shri A.S. Anand, who at present is adorning the chair of the Human Rights Commission.
The case is in reference to a statement of Dr Farooq Abdullah, when he was out of office and Jagmohan was the Governor. Dr Abdullah had admitted that he had sent a few thousand National Conference workers to Pakistan for receiving training in arms handling for the purpose of triggering militancy in the State. The news of this statement appeared in the Times of India on February 6, 1990 as follows:
“Perhaps the most remarkable thing he said was that ´I directed my partymen to lie low, go across the border, get training in arms handling, do anything but do not get caught by Mr Jagmohan.´ For the former Governor was out to wipe out the National Conference and the Congress from the state so that he could prop up other political parties and hand them over the power.”
One citizen by the name of Sukesh Khajuria filed a PIL in the High Court at Jammu, alleging that the statement amounted to treason and waging war against the State. This petition was entertained by the court and proceedings was issued against all the respondents that included Dr Farooq Abdullah and also the Times of India. Other respondents were the J&K state and the Chief Secretary. By this time Dr Abdullah had fled to England. So the ex parte proceedings were initiated. Finding that the judge handling the case was not pliable, he was transferred and the case was given to another judge. It is interesting to note that by this time Dr Abdullah had returned and had become the Chief Minister.
The case came to Justice O. P. Sharma. It is not surprising that Dr Abdullah denied to have made the statement. What is surprising is the behaviour of the judge. Without confirming the veracity of the statement from the Times of India, he dismissed the petition as not maintainable. The learned judge observed in his judgment: “The statement as a whole has not been reproduced by the paper, but even if it is admitted to be correct, the question is whether it constitutes a cognisable offence.”
The contention of Justice Sharma appearing for the petitioner is that it constitutes an offence within the meaning of Section 121 of the Penal Code because of taking up the arms against the Government of India and waging war. “I am afraid such an inference is not permissible or cannot be read into the statement. At best, the statement amounts to asking the partymen to cross the border and get training in arms handling. A person who goes abroad commits an offence if he returns and is caught not otherwise. But if the statement as a whole is read, then perhaps it was a defensive measure against the alleged threat and elimination of the National Conference workers.
“The statement may be slanderous and may be malicious against the erstwhile Governor, Shri Jagmohan. However, it was for him to react and not for a public spirited person to come to his rescue. The statement does not disclose any commission of offence, much less a cognisable offence. There is absolutely no substance in the petition, which is dismissed.”
Is there any wonder that the militants became bold and carried their nefarious militant activities? Is it also a wonder that Dr Farooq Abdullah´s government, connived, if not sympathised, with the violence that killed thousands of people and drove out the Kashmiri Hindus from their homeland? And if the judiciary also takes such a palpably partisan view, why should not militancy get encouraged?