In an important ruling, a UAPA Tribunal has declared that calling for a plebiscite in Jammu and Kashmir or supporting the 'Right of Self-Determination' constitutes a secessionist act and is an offence under the anti-terrorism legislation.

In a 148-page judgement dated June 22, the UAPA Tribunal upheld the ban on terrorist Masrat Alam’s organisation, the Muslim League Jammu Kashmir (Masrat Alam faction). The Centre had imposed the ban in December last year, and Alam is currently imprisoned in Delhi’s Tihar Jail. Alam’s organisation contested the ban before the Tribunal, arguing that it only advocates for the self-determination of the people of Jammu and Kashmir and a plebiscite as per the UN resolutions of 1948. However, the Tribunal rejected this argument.

The Tribunal stated that the outfit could not take refuge behind the UN resolutions of 1948 or any international treaty to justify its unlawful activities.

“The said UN resolution is in a peculiar historical context and susceptible to various interpretations,” the tribunal of Justice Sachin Datta at the Delhi High Court said.

The order further said that the sovereignty and territorial integrity of India is inviolable, and the same cannot be rendered violable in the “guise of any demand for a so-called plebiscite”. The ruling also said the contention that the peculiar background or circumstances of Kashmir legitimises the aforesaid objects or actions of Alam, “cannot be accepted”.

The Tribunal passed its judgement on June 22, but it was made public by the Ministry of Home Affairs (MHA) on Monday evening.

The Ministry banned the organisation on December 27, 2023, stating that it was involved in anti-national and secessionist activities in Jammu and Kashmir, supported terrorist activities, and incited people to establish Islamic rule in the state. To adjudicate the ban, a tribunal was established at the Delhi High Court on January 24. The tribunal conducted a hearing, considering representations by Indian investigative and intelligence agencies, as well as the lawyers of the MLJK-MA.

According to Indian agencies, Masarat Alam Bhat is known for his anti-India and pro-Pakistan propaganda. He became the chairman of the hardline faction of the Hurriyat Conference following the death of Syed Ali Shah Geelani. He has been in jail since 2010 for his alleged involvement in violent protests in the Kashmir Valley.

During the hearings before the tribunal, the outfit claimed that “since its inception in 2008 to the present day, MLJK-MA has maintained its status as a purely political entity, and has never indulged in or propagated violent or militant means of resistance”.

It further argued that its “core mission has revolved around implementing the resolution passed on January 5, 1949 by the United Nations Commission for India and Pakistan, which advocated for a plebiscite to determine the accession of the J&K to either India or Pakistan”. The outfit submitted that “seeking a plebiscite does not amount to an unlawful activity within the meaning of section 2(1)(o) of the UAPA”.

Appearing for the Central government, the Additional Solicitor General of India, Aishwarya Bhati argued that “advocating the right of self-determination is nothing but camouflage and a facade to advocate secessionism and cessation of part of the territory of Union of India”.

Bhati further argued, “Had the intention of organisation was to bring political reform in the territory of Jammu and Kashmir while it being a part of India, it would not have advocated plebiscite as per UNCIP since the territory of J&K is an integral part of India as per Article 1 read with Schedule I of Indian Constitution. The only natural corollary of demand of plebiscite is to have secession of the territory of J&K from India so that it can merge with Pakistan,” Bhati said in her arguments before the tribunal.

Agreeing with the government, the Tribunal ruled that the MLJK-MA is, by definition, an “unlawful association” as outlined in the UAPA.

“The association in J&K cannot be permitted to blatantly indulge in secessionist activities or activities inimical to the territorial integrity of India and claim legal immunity on account of such actions. There is simply no warrant or basis either in UAPA or in the Constitution for claiming such immunity,” the tribunal said in the order.

On the demand for plebiscite, the tribunal said, “The contention on behalf of MLJK-MA that seeking a plebiscite does not amount to an unlawful activity within the meaning of section 2(o) of the UAPA, is thoroughly misconceived.”

“The demand for a so-called plebiscite is nothing but a devise or a mechanism to undermine the territorial integrity of India and to encourage secession of part of the territory of India. The attempt on the part of the association to legitimise the same cannot be countenanced in law. Moreover, the views that may have been expressed by authors/political personalities in the years immediately following the Independence, cannot impart any legal basis to propagate secessionism. There is no gainsaying that the sovereignty and territorial integrity of India is inviolable; the same cannot be rendered violable in the guise of any demand for a so-called plebiscite or the like,” the judge said.

The Tribunal, under Justice Datta, also confirmed the ban on another Kashmir-based organisation, Tehreek-e-Hurriyat (TeH). Formed by separatist leader Syed Ali Shah Geelani in 2004 and currently headed by Amir Hamza Shah, TeH was banned by the Ministry of Home Affairs on December 31.

Image source: ANI