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Jammu & Kashmir: What happens if India repeals Articles 35-A and 370 of its Constitution?

Amjed Jaaved

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India’s Union minister Jaitley declared, `Article 35 A [of India’s Constitution] was “surreptitiously” included in the Indian Constitution. It was a “historical blunder” committed by Jawaharlal Nehru”’. His rant stimulated former chief minister `Mehbooba Mufti to warn (March 31, 2019) ` if Article 370, which guarantees special status to J&K, is done away with, the state’s relation with India will be over’.

While addressing party workers in Srinagar, Mehbooba said, `Article 370 is a bridge and the Constitution of India applies to us through it. And when you break that bridge, how come this Mehbooba Mufti, who swears by the constitution of J&K and India, will take oath? Then you will have to redefine the relations between India and Kashmir’.

Article 35A empowers IHK puppet government to `define a class of persons as constituting “permanent residents” of the disputed state and `to allow the government to confer on these persons special rights and privileges with respect to matters of public employment and acquisition of immovable property in the state’. In addition, `it grants immunity to such special rights and privileges legislation from being annulled on the ground that they infringe one or the other of the fundamental constitutional rights’.

Article 35A was included into the Constitution of India in 1954 by a presidential order made under Article 370 of the Constitution of India. The basic principles committee of the J&K Constituent Assembly, which was set up in 1951, presented its report to the Constituent Assembly in February 1954. As a part of the report, an annexure which listed out the provisions of the Constitution of India, besides Articles 1 and 370, that should be made applicable to J&K. This annexure included, among other Articles, Article 35A.

Background

Sheikh Abdullah befooled

Pandit Jawahar Lal Kaul (assumed surname Nehru) befooled Sheikh Abdullah to stab Pakistan in the back. Barkha Dutt recalls (This Unquiet Land, p. 154) `In a 1948 speech to the United Nations, Sheikh Abdullah, the most formidable political leader the state of Jammu and Kashmir had ever seen, made a blistering defence of the accession to India. Sher-e-Kashmir (Lion of Kashmir) roared, :I had thought all along that the world had got rid of Hitlers…but what is happening in my poor country I am convinced that they have transmigrated their souls into Pakistan…I refuse to accept Pakistan as a party in the affairs of Jammu and Kashmir’.

Dutt says, “Sheikh Abdullah [later] began to talk about possibility of independent Kashmir….Soon after he changed his stance he was jailed and dismissed from office and was not able to lead the state for another twenty years’. Dutt analyses that even azadi (freedom) slogan was a ruse to push back `Jammu ko alag karo’ (separate the Jammu) slogan raised by Balraj Madhok’s Bharatiya Jana Singh (precursor to BJP). `The Sheikh’s clash was not just with Nehru, but closer home, with the praja parishad [local political party] of Jammu’.

How India whittled down `special status’?

India through a series of steps whittled down Kashmir’s special status under Article 370 and 35-A of India’s Constitution. Governor replaced sadr-e-riast (head of J&K State) who could conveniently dismiss wazir-e-riast (re-desgnated chief minister).

Indian government dismissed its own ally, Mehbooba Mufti’s government. She outlawed several parities including Jama’at-e-Islami under handy label `separatist’. Kaswhmiri pedestrian and vehicles were ordered not to go anywhere near military convoys. About 800,000 troops were directed to carry on day-and-night searches, pick-up `suspects; and consigns them to military custody incognito. To humiliate Kashmiri leaders, they were called upon to explain their source of income. Even religious leader, Mirwaiz of Kashmir was not spared. He was summoned to New Delhi to explain `are you with India, or without’. To me them fearful of assassinations, they were deprived of security cover.

`Special status’ on judicial anvil

A petition was filed in India’s Supreme Court to do away with so called `special status. While Kashmiri leaders begged for election, their fate of total integration hangs in hands of petition pending with India’s Supreme Court.

OIC’s veiw

Organisation of Islamic Countries expressed ennui at plight of Kashmiris under Indian yoke India. The OIC reminded India that her rhetoric about accession and `integral part’ is a hoax. OIC echoed renowned historian Alastair Lamb’s concerns. He regards the Instrument of Accession, ‘signed’ by the maharajah of Kashmir on October 26, 1947, as fraudulent (Kashmir – A disputed legacy 1846-1990).

United Nations’ view of `accession’

Aware of India’s intention to get the ‘Instrument of Accession’ rubber-stamped by the puppet assembly, the Security Council passed two resolutions to forestall the `foreseeable accession’ by the puppet assembly. Security Council’s Resolution No 9 of March 30, 1951 and affirmative Resolution No 122 of March 24, 1957 outlaws accession or any other action to change status of the Jammu and Kashmir state.

 Under hypnotic spell of Indian propaganda, readers naively accept IHK’s `assembly’ and preceding `instrument of accession’ as fait accompli. No sir, they aren’t. Aware of India’s intention to get the ‘Instrument of Accession’ rubber-stamped by the sham assembly, the Security Council passed two resolutions to forestall the foreseeable` accession’ by the puppet assembly. Security Council’s Resolution No 9 of March 30, 1951 and confirmatory Resolution No 122 of March 24, 1957 outlaws accession or any other action to change status of the Jammu and Kashmir state.

`Accession instrument’ is a myth, unregistered with the UN. Alastair Lamb, in his book Incomplete Partition (Chapter VI: The accession Crisis, pp.  149-151) points out that Mountbatten wanted India not to intervene militarily without first getting `instrument of accession’ from maharajah Hari Singh.  Not doing so would amount to `intervening in the internal affairs of what was to all intents and purposes an independent State in the throes of civil conflict’.  But, India did not heed his advice. It marched its troops into Kashmir without maharajah‘s permission _ an act of aggression. Lamb says `timing of the alleged Instrument of Accession undoubtedly affected its legitimacy'(p.172, ibid). She adds `If in fact took place after the Indian intervention, then it could well be argued that it was either done under Indian duress or to regularise an Indian fait accompli’.

He argues that the maharajah was travelling by road to Jammu (a distance of over 350 km). How could he sign the instrument while being on the run for safety of his life? There is no evidence of any contact between him and the Indian emissaries on October 26, 1947. Actually, it was on October 27, 1947 that the maharajah was informed by MC Mahajan and VP Menon (who had flown into Srinagar) that an Instrument of Accession is being fabricated in New Delhi. Obviously, the maharajah could not have signed the instrument earlier than October 27, 1947. The instrument remains null and void, even if the maharajah had actually signed it. The reason, as pointed out by Alastair is that the `signatures’ were obtained under coercion. Under law, any undertaking secured through coercion or duress is null and void. She points out Indian troops had already arrived at and secured Srinagar airfield during the middle of October 1947. On October 26, 1947, a further airlift of thousands of Indian troops to Kashmir took place. She questions: “Would the maharajah have signed the Instrument of Accession, had the Indian troops not been on Kashmiri soil?” Isn’t it funny that, in the summer of 1995, the Indian authorities reported the original document as lost or stolen?

Lamb concludes (p. 191, ibid):`According to Wolpert, V. P. Menon returned to Delhi from Srinagar on the morning of 26 October with no signed Instrument of Accession.  Only after the Indian troops had started landing at Srinagar airfield on the morning of 27 October did V. P.   Menon and M. C. Mahajan set out from Delhi from Jammu. The Instrument of Accession, according to Wolpert, was only signed by Maharajah Sir Hari Singh after Indian troops had assumed control of the Jammu and Kashmir State’s summer capital,  Srinagar’.

Historical blunder

The real blunder was not introduction of Article 35A, but accession to India, through a resolution of null-and-void constituent assembly. To forestall the `foreseeable accession’ by the puppet assembly, the Security Council passed two resolutions,  Security Council’s Resolution No 9 of March 30, 1951 and confirmatory Resolution No 122 of March 24, 1957. These resolutions outlawed accession or any other action to change status of the Jammu and Kashmir state. For one thing, even `Accession instrument’ is a myth, unregistered with the UN. Let us put aside above UN resolutions and let India repeal Article 35A. What will happen? This will revert the disputed state back to a quasi-sovereign status, with its own prime minister and president. The state subjects of disputed Kashmir will cease to be citizens of India. Entry of Indian nationals into disputed Kashmir will be obstructed. The goods from India will have to pass through a customs barrier to pay an import duty. And, above all, the Kashmiri people will not be legally obliged to uphold the integrity and sovereignty of India. By swoosh of repeal, India’s nemesis, Pro-freedom parties (so-called separatists) will become mainstream stakeholders.

Legal view

To quote A G Noorani (Dawn August 11, 2019), “Article 35-A is not a mere executive order under Article 370 but is itself a constitutional provision, a compact recorded in both constitutions. No court can ignore this. As the Privy Council held, ‘parliament could as a matter of abstract law’ repeal the statute of Westminster recognising the independence of the dominions. But that is theory and has no relation to realities.”

The threat to Article 35-A poses an existential threat to disputed Kashmir. Curbs on alienation of hereditary occupancy of lands existed in Kashmir since times immemorial.

In 1922, the princely state’s council of ministers imposed curbs on employment of outsiders in administration, as well as “all grants of land for agricultural and house-building purpose and grant of houses and other state property shall be made to state subjects only”. A notification in April 1927 defined them.

The basic principles committee set up by the J&K constituent assembly presented its report on Feb 3, 1954. “All these fundamental rights should be subject to the overriding condition that: (i) no law of [J&K] relating to [J&K] subjects to be hereafter called ‘permanent residents’ and regulating their rights and privileges; and (ii) no law hereafter to be made by the [J&K] legislature defining the permanent residents and conferring on them special rights and privileges in relation to acquisition and holding of property in [J&K] or in the matter of employment under [J&K] and imposing restrictions on citizens other than permanent residents for settling within [J&K] should become void on the ground that it is inconsistent with or takes away or abridges any of the rights conferred by Part III of Constitution of India.”

On Feb 11, 1954, the report of the drafting committee was presented to the constituent assembly, in which an annexure set out the provisions of the Indian constitution, besides Articles 1 and 370 that should apply to J&K. Obviously; this annexure had been settled with the Indian government. Article 35-A was among them. On Feb 15, Girdhari Lal Dogra moved that a copy of the annexure be sent to the Indian government “for appropriate action”. On May 17, the president’s order under Article 370 followed, inserting, among other provisions, Article 35-A in the constitution.

Article 370 of India’s constitution records a compact between the centre and Kashmir, so does Article 35-A. Articles 370 and 35-A are a symbiotic twin, which was negotiated over May to October 1949. It was agreed between Jawaharlal Nehru and J&K’s delegation headed by Sheikh Abdullah. Nehru recorded it in a note dated July 20, 1952. The terms of the agreement were explained to the Indian parliament (Lok Sabha) and to the J&K constituent assembly.

Article 35-A was added to the constitution of India through the presidential order of 1954 issued by the first president Rajendra Prashad on May 14, 1954 in exercise of the powers conferred by clause (1) of Article 370. Article 35-A empowers the J&K legislature to define permanent residents of the state. The J&K adopted its own constitution on 17th November 1956 and defined the person who could be the permanent resident of the state.

Background to state-subject law

The background of state subject law is as old as the geographical and cultural history of Kashmir exists. The permit system known as “Rahdari” for the exit and entry into the state existed even during medieval and ancient periods of Kashmir. The state subject provisions got the legal shape only when Maharaja Hari Singh in 1927 enacted a law known as state subject or permanent residency law. The dogras were apprehensive that better educated people from east and west Punjab would migrate to Kashmir and dominate government services due to their advancement in education. Major portion of government service posts were occupied by either KPs or dogras in J&K state during dogra  rule. A very negligible percentage of Muslims were given jobs in government. During dogra rule, the British Government used to send their medical teams from England to treat Kashmiri patients. Even they were not allowed to over-stay sis-monthly sojourn.  

Myopic Kashmiris did nothing to stop special-status erosion

Leaders of the mainstream political parties connived at erosion of the terms of accession through amendments to disputed-Kashmir constitution and Article 370

What to do?

The time is ripe for Kashmiris to review Kashmir-India relation. With one voice Kashmiris from all walks of life should annul so-called accession, stay standstill or accede to Pakistan. And then, review relation with Pakistan also in keeping with Pakistan’s-constitution Article: 257. The article states:  `When the people of the State of Jammu and Kashmir decide to accede to Pakistan, the relationship between Pakistan and that State shall be determined in accordance with the wishes of the people of that State’. It is time the Kashmiris woke up and grab the opportunity to correct their historical blunder.

Mr. Amjed Jaaved has been contributing free-lance for over five decades. His contributions stand published in the leading dailies at home and abroad (Nepal. Bangladesh, et. al.). He is author of seven e-books including Terrorism, Jihad, Nukes and other Issues in Focus (ISBN: 9781301505944). He holds degrees in economics, business administration, and law.

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South Asia

Is PTM Genuine to its Cause?

Syed Nasir Hassan

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Pashtun Tahafuz Movement (PTM) v/s Sate is a fiery tale which none can anticipate how it will end. Sparked from the extra judicial murder of model aspirant Naqeeb Ulllah Mahsud on January 13, 2018, the movement continue to get a constant hype on the political spectrum of Pakistan. Initially named Mahsud Tahafuz Movement turned into Pashtun Tahafuz Movement when the case was put forward to the court and Rao Anwar was arrested. However, things got transformed as PTM started taking a constant nudge with the state. From the protest in front of press club in Islamabad, in 2018 to different rallies across country things shifted vigorously. PTM’s defiance is mainly pointed at criticizing the military institution and falsely blaming the institution for their plight. But the question rises that is PTM another mainstream political movement subjected for the elites rather than addressing the actual issue? And are they trying to internationally politicize the issue in order to demoralize the efforts of Pakistan?

On April 29, 2019, DG ISPR Maj Gen. Asif Ghafoor, military spokesperson, addressed PTM leadership and apprised them that the time has come when legal actions is mandatory to be taken against them. He further claimed that the financial records makes the existence of PTM skeptical as they are directly being funded by the foreign factions from neighboring countries  for their protests and rallies.  He was also of the view that PTM is being used by the foreign factions to instigate instability when Pakistan has achieved relative peace. However, the fact should not be neglected that the Government of Pakistan and military establishment acknowledges the demands put forward by the leadership of Pashtun Tahafuz Movement. At various points both, government and military, tried to engage with them in a collaborative manner. Recently on April 16, 2019, Senate Special Committee met the PTM leadership along with the MNA Mohsin Dawar. Even before, when the movement was in its early phase military was the first one to engage with them. When a request was put forward by the PTM leaders to meet military in order to express their grievances, it was agreed. Meeting was held between PTM delegation of 15 members and DG, ISPR Maj Gen Asif Ghafoor on Feb 08, 2018, in which apart from primary demand of justice for Naqeeb Mahsud there were other 4 demands. The military showed consensus on all of them. But the duality of the PTM should not be unremembered as on one side it engages with the government and the military but at the same time the constant barraging on the state and its institutes continues through social media. Things got more complicated as the tone of PTM got discordant day by day. The relentless spewing of hate and impudent comments against the state and its institution clearly show as on whose side PTM is. Movement is kind of drifting away from the true cause when the anti-state and separatist slogans and hymns are openly vocalized in the rallies and are now directed to demoralize the standards of army rather than demanding the rights.

With constant efforts from both government and military the PTM appears reluctant to develop a consensus. Keeping this whole saga in mind One might consider that either PTM leaders are not well negotiator or they don’t want to negotiate and the picture is much larger then it seems.

In 2018, a commission was also formed to facilitate PTM which included high ranks from the military and reputable civilians. State was persistence in facilitating the PTM grievances. DG ISPR also highlighted in his briefing that in order to remove landmines, a team was formed and is currently putting every effort at their disposal. The team had cleared 45 percent of the area and in pursuit of the task 101 Jawans had lost their lives. State constantly acknowledges the demands of PTM but PTM and its virtual diaspora have failed to acknowledge the efforts made by the state.

Pashtun makes up to 15% of the total population of Pakistan. What will happen if this number of population, a province indeed is brought in confrontation with the state? It will be enough to vandalize the socioeconomic fabric of Pakistan. Pashtuns of Pakistan have always been delicate segment of Pakistan as they were in the crossfire between Pakistan’s efforts against eradicating terrorism. It makes them soft target and vulnerable to be used by animosities against Pakistan. The point to ponder is that despite the efforts, and acknowledgement of their grievances by the state why this matter is getting more intense whereas the fact should not be forgotten that both parties are on same line in terms of addressing the problem. The only way this can be resolved is when the PTM stop being patsy against Pakistan and show real concern to give solace to the Pashtun community rather than exploiting their grievances

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South Asia

RSS: Grim Reality under the Secular Veil of India

Syed Nasir Hassan

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Religious extremism is not something novel to mankind. Between 132-136 CE, Romans faced the confrontation with the Jews. A Jew extremist, Simon Bar Kokhba, led the revolt against Romans known as Kokhba Revolution. He succeeded in establishing a Jew state which lasted for just three years, ultimately falling again in to Roman hands.

Under constitutional veil almost every other nation has some sort of religious or ethno extremist factions in their ranks with mass support. India too, which claims to be a true secular model in the subcontinent has their own version of extremist militia and what is worth worrying is that it is well organized and well structured.

RSS or Rashtriya Swayamsevak Sangh is an extremist Hindu vigilante militia which is being nurtured by many political hands. It came into existence in 1925 by Keshav Baliram Hedgewar – a Hindu nationalist. Initially it was established to retaliate against the British raj and Muslims and unite Hindus to devise a Hindu Rashtra (Hindu nation) but in post-independence scenario it became a blot on the secular veil of India. Indian Constitution makes it a secular country but RSS finds it against the norms of Hindustan. It is not the RSS which shifted its discourse but it was India which became a secular state by constitution. Even before the inception of RSS various Hindu nationalist emphasized on the existence of solely Hindu nation. Vinayak Damodar Savarkar,the founder of Hindu nationalist ideology Hindutva (an ideology which aims to form hegemony of Hindus) stated that there is a dire need of a solely Hindu nation.

RSS was banned three times in its post-independence continuity. First it was banned in 1948 after the assassination of Mahatma Gandhi by a Hindu nationalist. The interesting fact is the man named Nathuram Godse, who murdered Gandhi, was not an active RSS member at that time but was once. In 1975 RSS came into scrutiny again when Indra Gandhi banned extremist organizations and imposed emergency across the country, and then in 1992 when dispute over Babri masjid erupted and it got demolished.

But what is making the organization function with full momentum? The organization has a fully functional website where one can recruit itself in the organization. Its proper hierarchical order makes it worth worrying as there is a National leader and then there are Regional leaders to oversee the local dealings. It also conducts daily quasi military exercises in parks and open spaces. On many occasions, the members of RSS were involved in the lynching of Muslims and lower casts Hindus. RSS’s Cow protection squad was constantly involved in various incidents during Modi’s reign.

Indian Prime minister, Narendra Modi, during an interview revealed that the personality and the discipline he has, RSS played a major role in shaping it. He also said that he became part of the organization at very young age. RSS also played major role in the putting the throne of Delhi under the Modi’s feet and is again playing a major role in running his election campaign for upcoming elections.

The institutionalized structure of the RSS makes it unique as it has a Cow protection squad, women wing, Labor union and a farmer union to outreach mass population. On its website, they claim that they have more than 50,000 shakhas, a Hindi word for branches, in villages and different cities across the country. Utar-pardesh, a city with largest population in India and major electoral club in the lower house; it is reported that there are 8000 shakahs only in UP which are there obviously to influence the elections and win majority in the house.

Embedded hate against Muslims and other minorities is not something new, in fact, it is in the core beliefs of the organization. M.S Golwalkar, the second Sarsanghchalak (head of RSS) wrote a book named Bunch of Thoughts which comprised of the lectures he had given to shakhas over the country. In his book he wrote that internal elements pose far greater threat to national security than outside aggressor. Golwalkar than identified three major “Internal Threats: i) Muslims; ii) Christians; iii) Communists. Not just this, in an article published in THE HINDU on November 26,2006 it was revealed that the murder of Mahatma Gandhi was somehow celebrated by the RSS. Moreover, giving reference to the secret documents which he had seen the writer divulged that Golwalker had called a meeting on December 6, 1947, where RSS workers of Govardhan, a town not very far from Delhi. As per the police report regarding the meeting, assassination of the leading persons of the Congress was discussed to create terror and panic among the public and to get hold over them. Just after two days. Golwalkar again addressed several thousand RSS volunteers at the Rohtak Road Camp, Delhi. The police reporter notified that the RSS leader had clearly said that Sangh would not rest content until it finishes Pakistan and if anyone was a hindrance in their way they would not spare them either whether it was Nehru’s regime or any other.

Having such militant Hindu organizations flexibly working without any state censorship and proliferating into Indian society is a threat to Indian secular dream. Aimed at making India a purely Hindu state such far-right groups in subcontinent will make exclusive societies rather than inclusive. Intra-state tensions will continue to mount. Which will create the so-called nonpolitical groups like RSS propagating into the Indian society through political interference and can make India’s future bleak. With such intra-state terror groups Indian vision for secular and inclusive India will remain a chimera.

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South Asia

IMF bailout package and public opinion

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The 22nd bailout package for Pakistan at its final stages. There exists a mix of public opinion on this package, some are in favor and some differ. Both lobbies have own reasons and strong justifications, which makes a common man even more confused.

PM Imran Khan was criticizing previous governments for seeking IMF bailout packages in the past and expressed that he will not go to IMF, and may prefer suicide over begging. In the early few months of his Government, he was hesitant to go to the IMF and tried his best to seek help from friendly countries alternatively. Some of the friendly countries extended helping hands too, which includes Saudi Arabia, UAE, and China.

But the economic situation was so serious and dangerous that the country was at the edge of collapse or default. Still some of his advisors of the opinion that there exist other options instead of going to IMF. The deal under consideration is US Dollars 6 billion over a period of 39 months. It means less than 2 billion a year, which it really too little. If we control our imports of luxury items and un-necessary item, we may reduce our import bill by US Dollars 5 Billion easily. Or with a little bite of our efforts, we may be able to increase our exports by US Dollars 5 Billion easily. Some experts are thinking only for US Dollars 2 billion a year, we should not accept the harsh terms and conditions of IMF.

In the 7 decades history of Pakistan, 21 prgrammes of IMF were not good enough to make Pakistan a sustainable economy. Why one should expect, this 22nd will do something good. During the previous 21 programmes, Pakistan was a very close non-NATO ally of USA. Pakistan was on the right side of the US, a partner in Cold War Era, Front Line State in War on Terror. Politically, Pakistan was one of the favorite nations of the US and secured all possible support.  But today the situation may be rather different, as, after the Abbottabad Incident and Salala Incident in 2011, Western World has almost written-off Pakistan. USA has signed Major Defense Partner (MDP) agreement with India. The USA has created the Indo-Pacific Alliance with India, Japan, and Australia, to counter China, where Pakistan is engaged with China under BRI/ CPEC.

Against the tradition, people of Pakistan have voted Imran Khan, who so ever was given ticket of PTI, the public has voted him or her blindly in good faith & trust to Imran Khan. A few of his candidates might not be having very high capabilities or very good reputation, but, the public has trusted Imran Khan blindly. Imran Khan is the third most popular leader in Pakistan, after Jinnah the father of nation, and Zulfiqar Ali Bhutto, the Former Prime Minister of Pakistan in 1970s.

Unfortunately, he failed to form his own team and was depending on a team lobbying for IMF, World Bank or Western World. They have encircled him and kept on lobbying for their agenda. They finally pushed him to a stage, where he agreed to accept IMF. Close to him, sources think, he was never convinced but was made to accept. We are afraid, if this lobby can isolate him from nationalists and patriots, may succeed in the implementation of their agenda.

PM Imran Khan, is honest, hardworking and people loving leader. He loves Pakistan and common citizens of Pakistan. He really wanted to bring a change in the Society, where common man’s welfare is a top agenda. He is sincere with the nation and wanted to establish a total comprehensive welfare state. Unfortunately, he was lobbied wrongly and opted for IMF.

People of Pakistan have blindly trusted in Imran Khan and possess very high expectations from him. I know, Imran Khan understands it very well. He is an honest, brave and visionary leader and I believe he will not disappoint his voters.

Hope PM Imran Khan may educate people of Pakistan about the details of the IMF package and try to convince the masses. The welfare of common man and all other promises made with the nation before elections may be explained to masses, this is required urgently before he loses credibility and popularity among the masses.

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