The highest court in Jammu and Kashmir is legally obliged to do so. In 1954, the Supreme Court's jurisdiction was extended to the state of J&K, and for the first time, under Art.32(2-A) of India's Constitution of India, the State High Court was given power to issue writs to enforce fundamental rights as applicable in J&K. And in 1957, an independent judicial body with the High Court at the apex, was created in J&K.
But the presence of the Muslim Personal Law (Shariat) Bill, with the Grand Mufti, as its titular law interpreter, results in a parallel dispensation of justice in many matters. Driving home the point that the state court has lacked judicial leadership in the last 30 years, Dr. Tahir Mahmood, Member, Law Commission of India, renowned Jurist specializing in Islamic Law, Hindu Law, Religion and Law and Law Relating to Minorities, in an exhaustive research paper, has concluded that the "judiciary in this [J&K] state has been committed to the principle of rigid taqlid, hardly leaving any room either for a judicious application of the principles of Muslim personal law or for the removal of popular ignorance about the true principles of the Sharia."
Dr. Mahmood says that state of Jammu and Kashmir is "mandated to combat 'ignorance, superstition, fanaticism, communalism, racialism and cultural backwardness,' but the Muslims have failed to secure constitutional protection of their personal law.' In the state, state laws are supreme over personal Islamic laws, and largely the the trial courts and the High Court have tried to enforce this legal position over the years.
But indicting the state's highest court, he also said, "While certain courts and some learned judges in the rest of the country have contributed their learning and judicial acumen to a systematic development and correct interpretation of the rules of Islamic law, the judges in this predominantly Muslim state have generally refrained from so doing."
In essence, in the absence of the activist element in J&K judiciary, the Supreme Court could have given directives to the Jammu and Kashmir High Court, officially or unofficially, to not to shy away from its responsibility to apply Muslim law rules in the right perspective - within the rationale of Islamic law. India is clear - Jammu and Kashmir is an integral part of India. But India is also a republic - swearing by the rule of law. This 'right to laws' and its protection as expected by a citizen, was tested by Mufti Bashiruddin, and the republic fell short of expectations. The sad irony was not lost on this citizen journalist . On visiting the Facebook page of Pragaash, the band has listed its personal interest' as 'Passionate about India.'
If the state can't guarantee law enforcement on the right to sing and create music - then a takeover of personal laws within a largely Muslim state is a threat to basic individual rights, and poses challenges of societal and cultural self and religious suppression.
Playing music, when and where, and to whose detriment - these fall strictly under purvey of civil law, and one can arrive at rules and regulations independent of geography, religion and other parameters of identity. The fatwa against the members of Pragaash is therefore a reminder that the long-standing Uniform Civil Code is lying in limbo. The Constitution of India has mandated that such a code be made as part of a Directive Principle. This wide-ranging code, after due deligence, will put in place neutral laws, and will supercede all personal laws governing a religion, caste or a tribe in areas such as marriage, divorce, property and adoption - absorbing much of the power and influence of personal laws.
Pragaash band members guitarist Aneeka Khalid, drummer Farah Deeba and vocalist-guitarist Noma Nazir, who, reportedly, in their first public appearance December 2012, gave a dazzling 'best performance' in the annual 'Battle of the Bands' competition held in Srinagar - will be hoping that the media noise and political din dies down so that they can string new tunes in peace.
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