Kashmir: Constitutional Coup: A Selection of Responses and Analyses
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Sukla Sen
Aug 7, 2019, 11:07:09 AM8/7/19
to foil-l
[The whole episode, the cloak-and-dagger operation carried out at the very fag end of the extended parliamentary session without due notice, has essentially two dimensions - (i) Political and (ii) Constitutional/Legal/Procedural.
The two are, of course, not hermetically separated.
Nevertheless.
The party said commitment made by govt of India at time of J&K’s accession ‘deserved to be honoured until it was amended strictly in accordance with Constitution of India’
NH Web Desk
Article 370 is the Constitutional recognition of the terms of the Instrument of Accession between the state of Jammu & Kashmir and India. It deserved to be honoured until it was amended, after consultation with all sections of the people, and strictly in accordance with the Constitution of India,” it added.
BJP’s way of abrogating Art 370 raises question on very idea of India: Congress
What the BJP government accomplished yesterday in the Rajya Sabha and today in the Lok Sabha has grave implications going well beyond J&K and calls into question the very idea of India being a Union of States. Jammu & Kashmir acceded to India as one state and no government has the power to change its status or divide it or reduce any part of it to a Union Territory.
The Indian National Congress pledges to stand with the people of Jammu, Kashmir and Ladakh and to fight the BJP and its divisive and diabolical agenda with every power in its hands. We urge the people of J&K to maintain peace and calm.
The CWC strongly reaffirmed the consistent and stated position of the Indian National Congress that J&K, including the areas under the illegal occupation of Pakistan and the part ceded by it to China, are integral part of the Republic of India. The integration of J&K with India is final and irrevocable. CWC firmly asserted that all issues pertaining to J&K are internal matters of India and no outside interference will be tolerated.
Written by Pratap Bhanu Mehta |
Updated: August 7, 2019 10:49:10 am
--
The two are, of course, not hermetically separated.
Nevertheless.
I. Politically, it's a part of the onward march towards a "Hindu Rashtra".
By triggering off division of the Indian populace into mutually warring camps, across religious divides.
That's why deliberately create a Palestine - throttling all forms of legitimate protests and irretrievably alienating the local population, create a permanent hotbed of militancy, to hold it up as a mortal threat to the mainland and thereby trigger vicious Hindu reaction.
That's why so much of state repression.
The issues of the NRC and Mandir-Masjid also are broadly geared to that end.
II. A. Article 370 has been neutralised.
B. Via a procedure of deeply doubtful validity.
C. The state has been overnight bifurcated without any formal request to that end from anyone.
D. A full-fledged state, that too with special status, has overnight been reduced to the status of Union Territory, with all its attendant implications.
This, in fact, alters the basic, "federal" (or quasi-federal?), structure of the Indian state.
The federal essence of the state had to be strengthened via persistent struggles over years and decades.
By triggering off division of the Indian populace into mutually warring camps, across religious divides.
That's why deliberately create a Palestine - throttling all forms of legitimate protests and irretrievably alienating the local population, create a permanent hotbed of militancy, to hold it up as a mortal threat to the mainland and thereby trigger vicious Hindu reaction.
That's why so much of state repression.
The issues of the NRC and Mandir-Masjid also are broadly geared to that end.
II. A. Article 370 has been neutralised.
B. Via a procedure of deeply doubtful validity.
C. The state has been overnight bifurcated without any formal request to that end from anyone.
D. A full-fledged state, that too with special status, has overnight been reduced to the status of Union Territory, with all its attendant implications.
This, in fact, alters the basic, "federal" (or quasi-federal?), structure of the Indian state.
The federal essence of the state had to be strengthened via persistent struggles over years and decades.
Now, it stands more than reversed.
For the first time ever, a state is dismembered and its statehood snatched away, just like that.
If it can happen to J&K today, it can happen to any other tomorrow.
If it can happen to J&K today, it can happen to any other tomorrow.
There's also a third dimension.
The state now stands opened up to a bevy of sharks in the name of investments and ecologically destructive "developments".
The state now stands opened up to a bevy of sharks in the name of investments and ecologically destructive "developments".
That's what the Home Minister hinted at in the parliament.
It's precisely in this context the compartive chart between Gujarat and J&K displayed by the eminent economist Jea Dreze at a public protest (link provided at at sl. no. VI.) assumes added significance.
It's precisely in this context the compartive chart between Gujarat and J&K displayed by the eminent economist Jea Dreze at a public protest (link provided at at sl. no. VI.) assumes added significance.
The PUCL statement, issued yesterday, takes a commendable comprehensive look, albeit with the important gap on how the federal structure of the Union of States stands severely undermined.
The video clip of Mr. P Chidambaram's speech, for which the link is provided at sl. no. II. below, deals, pretty persuasively, with this gap. Though, rather surprisingly, it doesn't touch upon the aspect of the statehood being snatched away.
The video clip of Mr. P Chidambaram's speech, for which the link is provided at sl. no. II. below, deals, pretty persuasively, with this gap. Though, rather surprisingly, it doesn't touch upon the aspect of the statehood being snatched away.
At sl. no. III. below is the full text of the CWC resolution on the issue.
At sl. no IV. is a professional view on the "legality" of the act.
At sl. no. V. is a comment on the political intent and implications of the move by a mainstream analyst of some considerable repute.
At sl. no. V. is a comment on the political intent and implications of the move by a mainstream analyst of some considerable repute.
And, last but not the least, the response from the UN human rights office (OHCHR), at sl. no. VII. below.]
I.
Lives, rights, aspirations, hopes of people of Kashmir are 'biggest' casualties: PUCL
Counterview Desk
India’s well-known human rights organization, People’s Union for Civil Liberties (PUCL), has said that the decision to drop the special status to Jammu and Kashmir (J&K) is “a coup against the Constitution and the Kashmiris”, adding, the change in the status of J&K from a state to a Union territory is “an unethical and undemocratic act”, as it “robs the people of Kashmir the little democratic space they have.
Pointing out that the steps would “further alienate the people of Kashmir from the Indian State”, PUCL, in a statement signed by Ravi Kiran Jain, national president, and Dr V Suresh, national general secretary, has asked the Government of India to reverse its steps, remove prohibitory orders in J&K, and “undertake any action” it wants to on Kashmir “only after consulting the Kashmiri people.”
PUCL, in particular, strongly condemns the planned and sinister manner by which the Government of India has gone about arresting at midnight of Sunday, 4-5th August, 2019 important leaders of political parties in J&K, including former Chief Ministers Omar Abdullah, Mehbooba Mufti and others, soon after airlifting over 35,000 troops and suddenly and abruptly asking all Amarnath Yatris and holiday visitors to leave the state creating acute sense of fear and panic.
Simultaneously, the Government in a concerted manner, also shut down all communication and telecom services to and from the valley, effectively ghettoizing the entire state into a state of forced silence, while also imposing curfew in the state preventing movement of people, thereby creating chaos, distress and disruption of normal life. Students from other states were asked to leave Kashmir while Kashmiris outside the state continue to live in panic unable to communicate with their families in the Valley.
The ulterior plan behind such unprecedented action became apparent on Monday, 5th August, 2019, with the Government quickly pushing through legislations to abrogate major portion of Art. 370thereby discontinuing Special Status to J&K and bifurcating the State into two Union territories: J&K and Ladakh.
It is pertinent to point out that Article 370 of the Constitution of India is a self-contained Article. It determined how the Constitution of India would apply to J&K and also specifically provided for the procedure for the abrogation of Article 370 itself. The President can pass an order under Article 370 (3), removing article 370 only if the Constituent Assembly of J&K recommended the same.
Since the Constituent Assembly of J&K ceased functioning in 1957, the Supreme Court in its judgement in `SBI vs Santosh Gupta’, (2017)’, held that the Article 370 has become permanent unless another Constituent Assembly of J&K was constituted. In order to get over this constitutional roadblock, the present BJP Government adopted a rather devious and unconstitutional route.
Article 370 (1) (d) of the Constitution empowers the President, from time to time, to issue notifications modifying the manner in which the constitutional provisions can be made applicable to the State of J&K. Article 367 of the Constitution of India explains how phrases in the Constitution are to be interpreted. The issue, in case of abrogation of Article 370, was the need for recommendation of 'Constituent Assembly of the State’.
India’s well-known human rights organization, People’s Union for Civil Liberties (PUCL), has said that the decision to drop the special status to Jammu and Kashmir (J&K) is “a coup against the Constitution and the Kashmiris”, adding, the change in the status of J&K from a state to a Union territory is “an unethical and undemocratic act”, as it “robs the people of Kashmir the little democratic space they have.
Pointing out that the steps would “further alienate the people of Kashmir from the Indian State”, PUCL, in a statement signed by Ravi Kiran Jain, national president, and Dr V Suresh, national general secretary, has asked the Government of India to reverse its steps, remove prohibitory orders in J&K, and “undertake any action” it wants to on Kashmir “only after consulting the Kashmiri people.”
Text:
The PUCL condemns the abrogation of key portions of Article 370 of the Indian Constitution and the bifurcation of the State of J&K and taking away its statehood. While the deed by itself is deceitful, the manner in which it was done is even more so. All the constitutional provisions, procedures, safeguards and values have been disregarded. What pains us most is that this change of status of the erstwhile state of J&K, was carried out with stealth, completely unilaterally, without even talking or consulting the people of J&K, even as part of Government tokenism.PUCL, in particular, strongly condemns the planned and sinister manner by which the Government of India has gone about arresting at midnight of Sunday, 4-5th August, 2019 important leaders of political parties in J&K, including former Chief Ministers Omar Abdullah, Mehbooba Mufti and others, soon after airlifting over 35,000 troops and suddenly and abruptly asking all Amarnath Yatris and holiday visitors to leave the state creating acute sense of fear and panic.
Simultaneously, the Government in a concerted manner, also shut down all communication and telecom services to and from the valley, effectively ghettoizing the entire state into a state of forced silence, while also imposing curfew in the state preventing movement of people, thereby creating chaos, distress and disruption of normal life. Students from other states were asked to leave Kashmir while Kashmiris outside the state continue to live in panic unable to communicate with their families in the Valley.
The ulterior plan behind such unprecedented action became apparent on Monday, 5th August, 2019, with the Government quickly pushing through legislations to abrogate major portion of Art. 370thereby discontinuing Special Status to J&K and bifurcating the State into two Union territories: J&K and Ladakh.
It is pertinent to point out that Article 370 of the Constitution of India is a self-contained Article. It determined how the Constitution of India would apply to J&K and also specifically provided for the procedure for the abrogation of Article 370 itself. The President can pass an order under Article 370 (3), removing article 370 only if the Constituent Assembly of J&K recommended the same.
Since the Constituent Assembly of J&K ceased functioning in 1957, the Supreme Court in its judgement in `SBI vs Santosh Gupta’, (2017)’, held that the Article 370 has become permanent unless another Constituent Assembly of J&K was constituted. In order to get over this constitutional roadblock, the present BJP Government adopted a rather devious and unconstitutional route.
Article 370 (1) (d) of the Constitution empowers the President, from time to time, to issue notifications modifying the manner in which the constitutional provisions can be made applicable to the State of J&K. Article 367 of the Constitution of India explains how phrases in the Constitution are to be interpreted. The issue, in case of abrogation of Article 370, was the need for recommendation of 'Constituent Assembly of the State’.
What the BJP Government did was very insidious and cunning. On 5th August, 2019, they introduced a 3-stepAmendment process. In the first step a Presidential Notification under Article 370 (1)(d) was issued amending Article 367 by introducing a new Sub-clause (4) which stated that the expression “Constituent Assembly” in Article 370(3) shall be read as “Legislative Assembly of the State”. The effect was that after this change, Article 370 of the Constitution could be amended removing the necessity to obtain the recommendation of the ‘Constituent Assembly’.
It is most troubling that political leaders of Kashmir who never disputed the accession of Kashmir with India have been placed under preventive detention
Now, since J&K has been under President’s Rule since December 2018, it means that the powers of the State Legislature are being exercised by the President of India. This, in effect, results in a farcical situation in which the President of India has consented to permit himself (as Head of the State Government of J&K) to recommend abrogation of Art. 370 of the Constitution!
In other words, what could not be done directly was done indirectly and the constitutional provisions have been undermined. This is a clear subversion of the constitutional provisions by the BJP government.
What is shocking is the utter contempt that the current dispensation has been exhibiting for constitutional procedures and democratic processes, which actually is a consistent pattern we have witnessed in the recent past with the passing of a slew of legislations which have serious ramifications, as a Money Bill.
The change in the status of the erstwhile state of J&K from a State to a Union Territory is an unethical and undemocratic act. It robs the people of Kashmir the little democratic space they have and will only further alienate the people of Kashmir from the Indian State.
The argument that Article 370 is a clause which obstructed the complete integration of Kashmir with the rest of India and prevented development is a totally flawed logic. The unamended Article 370 was put in place to recognise in principle the distinct identity and autonomy of the Kashmiri people. This was necessitated by the history and the context of accession of Kashmir with India.
It is most troubling that political leaders of Kashmir who never disputed the accession of Kashmir with India and who participated in the Indian democratic process have been placed under preventive detention and were kept completely in the dark when decisions which impacts the state were taken. In this entire exercise the lives, rights, aspirations and hopes of the people of Kashmir are the biggest casualties.
PUCL apprehends that there is another insidious dimension in taking away the statehood of the J&K. It is a ploy to take control of their natural resources, their water, mountains, the hills and fields and forests. It is yet another act to aggrandise and deprive the common Kashmiri and convert the valley into a real estate venture.
In other words, what could not be done directly was done indirectly and the constitutional provisions have been undermined. This is a clear subversion of the constitutional provisions by the BJP government.
What is shocking is the utter contempt that the current dispensation has been exhibiting for constitutional procedures and democratic processes, which actually is a consistent pattern we have witnessed in the recent past with the passing of a slew of legislations which have serious ramifications, as a Money Bill.
The change in the status of the erstwhile state of J&K from a State to a Union Territory is an unethical and undemocratic act. It robs the people of Kashmir the little democratic space they have and will only further alienate the people of Kashmir from the Indian State.
The argument that Article 370 is a clause which obstructed the complete integration of Kashmir with the rest of India and prevented development is a totally flawed logic. The unamended Article 370 was put in place to recognise in principle the distinct identity and autonomy of the Kashmiri people. This was necessitated by the history and the context of accession of Kashmir with India.
It is most troubling that political leaders of Kashmir who never disputed the accession of Kashmir with India and who participated in the Indian democratic process have been placed under preventive detention and were kept completely in the dark when decisions which impacts the state were taken. In this entire exercise the lives, rights, aspirations and hopes of the people of Kashmir are the biggest casualties.
PUCL apprehends that there is another insidious dimension in taking away the statehood of the J&K. It is a ploy to take control of their natural resources, their water, mountains, the hills and fields and forests. It is yet another act to aggrandise and deprive the common Kashmiri and convert the valley into a real estate venture.
In the three speeches in the Rajya Sabha made by the Home Minister, he continuously spoke of how the state was in the dark ages and needed to be brought into the main stream with hotels and other people of India having an opportunity to buy land, build houses and live there.
Lastly the actions of the BJP government not to have provided with at least two days’ notice to the MPs to study the Reorganization of J&K Bill or the President’s resolution to repeal Article 370, shows that the BJP not only does not want scrutiny and deliberation, which is the key to any democratic process but also just wants to convert the Parliament to a rubber stamp, which is what the first session of Parliament of the 17th Lok Sabha has become.
The passage of 32 bills, in haste, without pre-legislative consultation with public or discussions with those to be impacted by the concerned bills or denying the right to send bills to the select committee, not only confirms this but also indicates what await us in the near future.
The PUCL would urge the people of India to see yesterday’s process in Parliament as one more effort to repress and subjugate the people of Kashmir and should oppose this decision of the Government peacefully. We would also like our sisters and brothers in Kashmir to know that we are with them and share their loss and grief against this latest attack by the GOI on them.
PUCL demands:
Lastly the actions of the BJP government not to have provided with at least two days’ notice to the MPs to study the Reorganization of J&K Bill or the President’s resolution to repeal Article 370, shows that the BJP not only does not want scrutiny and deliberation, which is the key to any democratic process but also just wants to convert the Parliament to a rubber stamp, which is what the first session of Parliament of the 17th Lok Sabha has become.
The passage of 32 bills, in haste, without pre-legislative consultation with public or discussions with those to be impacted by the concerned bills or denying the right to send bills to the select committee, not only confirms this but also indicates what await us in the near future.
The PUCL would urge the people of India to see yesterday’s process in Parliament as one more effort to repress and subjugate the people of Kashmir and should oppose this decision of the Government peacefully. We would also like our sisters and brothers in Kashmir to know that we are with them and share their loss and grief against this latest attack by the GOI on them.
PUCL demands:
- That the clampdown on telecom services and communication and restrictions on movement be immediately lifted.
- All political/opposition leaders be released.
- Normalcy be restored in the Valley.
- All the troops be withdrawn.
- The three legislation introduced on 5th August, 2019, viz., the (i) The Constitution (Application to J&K) Order, 2019 - Presidential order CO 272, (ii) Statutory Resolution introduced in the Rajya Sabha and (iii) The J&K Reorganisation Bill be rolled back. And
- Undertake any action with regard to Kashmir only after consulting the Kashmiri people.
II.
(P Chidamabaram in Rajya Sabha.)
III.
III.
BJP’s way of abrogating Art 370 raises question on very idea of India: Congress
The party said commitment made by govt of India at time of J&K’s accession ‘deserved to be honoured until it was amended strictly in accordance with Constitution of India’
NH Web Desk
Published: 7 Aug 2019, 12:46 AM
Slamming the Narendra Modi government for abrogating Article 370 of the Constitution in a “unilateral, brazen and totally undemocratic manner”, the Congress on Tuesday said that the way whole thing was done “calls into question the very idea of India being a Union of states”.
A resolution passed by the Congress Working Committee (CWC), the highest decision making body of the party, appealed to the people of Jammu and Kashmir to maintain peace, while underlining its stated position that J&K is an integral part of India and that “all issues pertaining to J&K are internal matters of India” with no scope for any outside intervention.
Here is the full text of the Resolution:
The CWC deplores the unilateral, brazen and totally undemocratic manner in which Article 370 of the Constitution was abrogated and the State of Jammu and Kashmir was dismembered by misinterpreting the provisions of the Constitution. Every principle of Constitutional law, states’ rights, Parliamentary procedure and democratic governance was violated,” the CWC Resolution said.
Article 370 was conceived and crafted by Pandit Jawaharlal Nehru, Sardar Vallabhai Patel and Dr. B.R. Ambedkar, assisted by N. Gopalaswamy Iyengar and V.P. Menon.
Slamming the Narendra Modi government for abrogating Article 370 of the Constitution in a “unilateral, brazen and totally undemocratic manner”, the Congress on Tuesday said that the way whole thing was done “calls into question the very idea of India being a Union of states”.
A resolution passed by the Congress Working Committee (CWC), the highest decision making body of the party, appealed to the people of Jammu and Kashmir to maintain peace, while underlining its stated position that J&K is an integral part of India and that “all issues pertaining to J&K are internal matters of India” with no scope for any outside intervention.
Here is the full text of the Resolution:
The CWC deplores the unilateral, brazen and totally undemocratic manner in which Article 370 of the Constitution was abrogated and the State of Jammu and Kashmir was dismembered by misinterpreting the provisions of the Constitution. Every principle of Constitutional law, states’ rights, Parliamentary procedure and democratic governance was violated,” the CWC Resolution said.
Article 370 was conceived and crafted by Pandit Jawaharlal Nehru, Sardar Vallabhai Patel and Dr. B.R. Ambedkar, assisted by N. Gopalaswamy Iyengar and V.P. Menon.
Article 370 is the Constitutional recognition of the terms of the Instrument of Accession between the state of Jammu & Kashmir and India. It deserved to be honoured until it was amended, after consultation with all sections of the people, and strictly in accordance with the Constitution of India,” it added.
BJP’s way of abrogating Art 370 raises question on very idea of India: Congress
What the BJP government accomplished yesterday in the Rajya Sabha and today in the Lok Sabha has grave implications going well beyond J&K and calls into question the very idea of India being a Union of States. Jammu & Kashmir acceded to India as one state and no government has the power to change its status or divide it or reduce any part of it to a Union Territory.
The Indian National Congress pledges to stand with the people of Jammu, Kashmir and Ladakh and to fight the BJP and its divisive and diabolical agenda with every power in its hands. We urge the people of J&K to maintain peace and calm.
The CWC strongly reaffirmed the consistent and stated position of the Indian National Congress that J&K, including the areas under the illegal occupation of Pakistan and the part ceded by it to China, are integral part of the Republic of India. The integration of J&K with India is final and irrevocable. CWC firmly asserted that all issues pertaining to J&K are internal matters of India and no outside interference will be tolerated.
IV.
https://indconlawphil.wordpress.com/2019/08/05/the-article-370-amendments-key-legal-issues/?fbclid=IwAR2h12Puu6pOx9MRjZnkz2OvPd342VJAI6uYOmg_onX22htwVfmXzQpgyqU
The Article 370 Amendments: Key Legal Issues
Monday
05 Aug 2019
Posted by Gautam Bhatia
In this post, I will attempt to break down the constitutional changes to Article 370, and highlight some key legal issues surrounding them. In essence, to understand what has happened today, there are three important documents. At the heart of everything is Presidential Order C.O. 272, which constitutes the basis for everything that follows. The second is a Statutory Resolution introduced in the Rajya Sabha, which – invoking the authority that flows from the effects of Presidential Order C.O. 272 – recommends that the President abrogate (much of) Article 370. The third is the Reorganisation Bill, that breaks up the state of Jammu and Kashmir into the Union Territories of Ladakh (without a legislature) and Jammu and Kashmir (with a legislature).
To understand the legal issues, we need to begin with the language of unamended Article 370. Article 370, as is well known, limited the application of the provisions of the Indian Constitution to the state of Jammu and Kashmir. Under Article 370(1)(d), constitutional provisions could be applied to the state from time to time, as modified by the President through a Presidential Order, and upon the concurrence of the state government (this was the basis for the controversial Article 35A, for example). Perhaps the most important part of 370, however, was the proviso to clause 3. Clause 3 itself authorised the President to pass an order removing or modifying parts of Article 370. The proviso stated that:
Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.
In other words, therefore, for Article 370 itself to be amended, the recommendation of the Constituent Assembly of J&K was required. Now, the Constituent Assembly of J&K ceased functioning in 1957. This has led to a long-standing debate about whether Article 370 has effectively become permanent (because there is no CA to give consent to its amendment), whether it would require a revival of a J&K CA to amend it, or whether it can be amended through the normal amending procedure under the Constitution.
C.O. 272, however, takes an entirely different path. C.O. 272 uses the power of the President under Article 370(1) (see above), to indirectly amend Article 370(3), via a third constitutional provision: Article 367. Article 367 provides various guidelines about how the Constitution may be interpreted. Now, C.O. 272 adds to Article 367 an additional clause, which has four sub-clauses. Sub-clause 4 stipulates that “in proviso to clause (3) of Article 370 of this Constitution, the expression ‘Constituent Assembly of the State referred to in clause (2)” shall read “legislative Assembly of the State.”
In other words, this is what has happened. Article 370(1) allows the President – with the concurrence of the government of J&K (more on that in a moment) – to amend or modify various provisions of the Constitution in relation to J&K. Article 370(3) proviso states that Article 370 itself is to be amended by the concurrence of the Constituent Assembly. C.O. 272, therefore, uses the power under 370(1) to amend a provision of the Constitution (Article 367) which, in turn, amends Article 370(3), and takes out the Constituent Assembly’s concurrence for any further amendments to Article 370. And this, in turn, becomes the trigger for the statutory resolution, that recommends to the President the removal of (most of) Article 370 (as the Constituent Assembly’s concurrence is no longer required).
This is very clever. Is it legal? One serious objection is Article 370(1)(c). Article 370(1)(c) (unamended) stated that “notwithstanding anything contained in this Constitution, the provisions of Article 1 and this Article shall apply in relation to that State.” This is absolutely crucial, because it makes clear that the power of the President to amend provisions of the Constitution in relation to J&K does not extend to Article 1 and “this Article”, i.e., Article 370 itself. 370(1)(d) makes it even clearer where it refers to the “other provisions” of the Constitution that may be altered by Presidential Order (and this is how the present Presidential Order is different from previous ones, such as those that introduced Article 35A). Article 370 itself, therefore, cannot be amended by a Presidential Order such as C.O. 272 (the one exception was a clarificatory amendment, which is not analogous to this one).
Now, it may be immediately objected that C.O. 272 does not amend Article 370: it amends Article 367. The point, however, is that the content of those amendments do amend Article 370, and as the Supreme Court has held on multiple occasions, you cannot do indirectly what you cannot do directly. I would therefore submit that the legality of C.O. 272 – insofar as it amends Article 370 – is questionable, and as that is at the root of everything, it throws into question the entire exercise.
There is a second important point to be noted here. C.O. 272 says – as it must – that the concurrence of the government of the state of Jammu and Kashmir has been taken. However, Jammu and Kashmir has been under President’s Rule for many months now. Consequently, actually, the consent is that of the Governor. However, there are two serious problems with basing C.O. 272 upon the consent of the Governor. The first is that the Governor is a representative of the Central Government – like the President. In effect, therefore, Presidential Order 272 amounts to the Central Government taking its own consent to amend the Constitution.
There is, however, a more important issue. President’s Rule is temporary. It is only meant to happen when constitutional machinery breaks down in a state, and an elected government is impossible. President’s Rule is meant to be a stand-in until the elected government is restored. Consequently, decisions of a permanent character – such as changing the entire status of a state – taken without the elected legislative assembly, but by the Governor, are inherently problematic. Formally, they may be within the bounds of legality; however, as the Supreme Court held in D.C. Wadhwa, on the question of re-promulgation of Ordinances, formal legality can nonetheless, in effect, amount to a fraud on the Constitution. Using the Governor to sign off on a Presidential Order that fundamentally alters the constitutional character of a federal unit appears, to me, to be straying dangerously close to the constitutional fraud line.
For these two reasons, therefore – first, on the indirect amendment of Article 370(3) proviso via 370(1), and secondly, on the use of the Governor as a substitute for the elected assembly in a matter of this kind – I would submit that there are serious legal and constitutional problems with Presidential Order C.O. 272 – which, of course, forms the basis of both the statutory resolution and the Reorganisation Bill.
The Article 370 Amendments: Key Legal Issues
Monday
05 Aug 2019
Posted by Gautam Bhatia
In this post, I will attempt to break down the constitutional changes to Article 370, and highlight some key legal issues surrounding them. In essence, to understand what has happened today, there are three important documents. At the heart of everything is Presidential Order C.O. 272, which constitutes the basis for everything that follows. The second is a Statutory Resolution introduced in the Rajya Sabha, which – invoking the authority that flows from the effects of Presidential Order C.O. 272 – recommends that the President abrogate (much of) Article 370. The third is the Reorganisation Bill, that breaks up the state of Jammu and Kashmir into the Union Territories of Ladakh (without a legislature) and Jammu and Kashmir (with a legislature).
To understand the legal issues, we need to begin with the language of unamended Article 370. Article 370, as is well known, limited the application of the provisions of the Indian Constitution to the state of Jammu and Kashmir. Under Article 370(1)(d), constitutional provisions could be applied to the state from time to time, as modified by the President through a Presidential Order, and upon the concurrence of the state government (this was the basis for the controversial Article 35A, for example). Perhaps the most important part of 370, however, was the proviso to clause 3. Clause 3 itself authorised the President to pass an order removing or modifying parts of Article 370. The proviso stated that:
Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.
In other words, therefore, for Article 370 itself to be amended, the recommendation of the Constituent Assembly of J&K was required. Now, the Constituent Assembly of J&K ceased functioning in 1957. This has led to a long-standing debate about whether Article 370 has effectively become permanent (because there is no CA to give consent to its amendment), whether it would require a revival of a J&K CA to amend it, or whether it can be amended through the normal amending procedure under the Constitution.
C.O. 272, however, takes an entirely different path. C.O. 272 uses the power of the President under Article 370(1) (see above), to indirectly amend Article 370(3), via a third constitutional provision: Article 367. Article 367 provides various guidelines about how the Constitution may be interpreted. Now, C.O. 272 adds to Article 367 an additional clause, which has four sub-clauses. Sub-clause 4 stipulates that “in proviso to clause (3) of Article 370 of this Constitution, the expression ‘Constituent Assembly of the State referred to in clause (2)” shall read “legislative Assembly of the State.”
In other words, this is what has happened. Article 370(1) allows the President – with the concurrence of the government of J&K (more on that in a moment) – to amend or modify various provisions of the Constitution in relation to J&K. Article 370(3) proviso states that Article 370 itself is to be amended by the concurrence of the Constituent Assembly. C.O. 272, therefore, uses the power under 370(1) to amend a provision of the Constitution (Article 367) which, in turn, amends Article 370(3), and takes out the Constituent Assembly’s concurrence for any further amendments to Article 370. And this, in turn, becomes the trigger for the statutory resolution, that recommends to the President the removal of (most of) Article 370 (as the Constituent Assembly’s concurrence is no longer required).
This is very clever. Is it legal? One serious objection is Article 370(1)(c). Article 370(1)(c) (unamended) stated that “notwithstanding anything contained in this Constitution, the provisions of Article 1 and this Article shall apply in relation to that State.” This is absolutely crucial, because it makes clear that the power of the President to amend provisions of the Constitution in relation to J&K does not extend to Article 1 and “this Article”, i.e., Article 370 itself. 370(1)(d) makes it even clearer where it refers to the “other provisions” of the Constitution that may be altered by Presidential Order (and this is how the present Presidential Order is different from previous ones, such as those that introduced Article 35A). Article 370 itself, therefore, cannot be amended by a Presidential Order such as C.O. 272 (the one exception was a clarificatory amendment, which is not analogous to this one).
Now, it may be immediately objected that C.O. 272 does not amend Article 370: it amends Article 367. The point, however, is that the content of those amendments do amend Article 370, and as the Supreme Court has held on multiple occasions, you cannot do indirectly what you cannot do directly. I would therefore submit that the legality of C.O. 272 – insofar as it amends Article 370 – is questionable, and as that is at the root of everything, it throws into question the entire exercise.
There is a second important point to be noted here. C.O. 272 says – as it must – that the concurrence of the government of the state of Jammu and Kashmir has been taken. However, Jammu and Kashmir has been under President’s Rule for many months now. Consequently, actually, the consent is that of the Governor. However, there are two serious problems with basing C.O. 272 upon the consent of the Governor. The first is that the Governor is a representative of the Central Government – like the President. In effect, therefore, Presidential Order 272 amounts to the Central Government taking its own consent to amend the Constitution.
There is, however, a more important issue. President’s Rule is temporary. It is only meant to happen when constitutional machinery breaks down in a state, and an elected government is impossible. President’s Rule is meant to be a stand-in until the elected government is restored. Consequently, decisions of a permanent character – such as changing the entire status of a state – taken without the elected legislative assembly, but by the Governor, are inherently problematic. Formally, they may be within the bounds of legality; however, as the Supreme Court held in D.C. Wadhwa, on the question of re-promulgation of Ordinances, formal legality can nonetheless, in effect, amount to a fraud on the Constitution. Using the Governor to sign off on a Presidential Order that fundamentally alters the constitutional character of a federal unit appears, to me, to be straying dangerously close to the constitutional fraud line.
For these two reasons, therefore – first, on the indirect amendment of Article 370(3) proviso via 370(1), and secondly, on the use of the Governor as a substitute for the elected assembly in a matter of this kind – I would submit that there are serious legal and constitutional problems with Presidential Order C.O. 272 – which, of course, forms the basis of both the statutory resolution and the Reorganisation Bill.
V.
The story of Indian democracy written in blood and betrayal
BJP thinks it is going to Indianise Kashmir. Instead, we will see, potentially, the Kashmirisation of India.
BJP thinks it is going to Indianise Kashmir. Instead, we will see, potentially, the Kashmirisation of India.
Written by Pratap Bhanu Mehta |
Updated: August 7, 2019 10:49:10 am
There are times in the history of a republic when it reduces itself to jackboot. Nothing more and nothing less. We are witnessing that moment in Kashmir. But this moment is also a dry run for the political desecration that may follow in the rest of India. The manner in which the BJP government has changed the status of Jammu and Kashmir by rendering Article 370 ineffective and bifurcating the state is revealing its true character. This is a state for whom the only currency that matters is raw power. This is a state that recognises no constraints of law, liberty and morality. This is a state that will make a mockery of democracy and deliberation. This is a state whose psychological principle is fear. This is a state that will make ordinary citizens cannon fodder for its warped nationalist pretensions.
The narrative supporting a radical move on Kashmir is familiar. Article 35(a) was a discriminatory provision and had to go. Article 370 was not a mechanism for integration but a legal tool for separatism. The Indian state, despite the horrendous violence it has used in the past, has never had the guts to take a strong stand on Kashmir. The radicalisation within Kashmir warrants a crackdown. The treatment meted to Kashmiri Pandits has never been recompensed either through justice or retribution. The international climate is propitious. We can do what China is doing: Remake whole cultures, societies. We can take advantage of the fact that human rights is not even a hypocrisy left in the international system. We can show Pakistan and Taliban their place. Let us do away with our old pusillanimity. Now is the time to seize the moment. Settle this once and for all, if necessary with brute force.
The narrative supporting a radical move on Kashmir is familiar. Article 35(a) was a discriminatory provision and had to go. Article 370 was not a mechanism for integration but a legal tool for separatism. The Indian state, despite the horrendous violence it has used in the past, has never had the guts to take a strong stand on Kashmir. The radicalisation within Kashmir warrants a crackdown. The treatment meted to Kashmiri Pandits has never been recompensed either through justice or retribution. The international climate is propitious. We can do what China is doing: Remake whole cultures, societies. We can take advantage of the fact that human rights is not even a hypocrisy left in the international system. We can show Pakistan and Taliban their place. Let us do away with our old pusillanimity. Now is the time to seize the moment. Settle this once and for all, if necessary with brute force.
There are kernels of truth to many of these arguments. The status quo was a double whammy: It did nothing to address the well-being of Kashmiris who have now endured two generations of what was effectively military occupation. And it increased the gulf between Kashmir and the rest of the nation. So some movement was inevitable. But the kernel of truth is being deployed with an armoury of evil. The solution being proposed is an annihilation of decency. The fact that these measures had to be done under stealth, with a tight security noose and informational blackout is a measure of the evil of the step taken. This is not the dawn of a new constitutional settlement, designed to elicit free allegiance. It is repression, plain and simple, reminiscent of the Reichstag or Chinese constitutional ideology that sees federalism as an obstacle to a strong state and homogenous culture.
Think of the proposal’s broader ramifications. India has betrayed its own constitutional promises. India has many asymmetric federalism arrangements outside of Kashmir. This act potentially sets the precedent for invalidating all of them. How can we justify offering Nagaland asymmetric federalism but deny it to Kashmir? Its implication is that the government can unilaterally declare any existing state to be a Union Territory. This is a constitutional first. We are simply a union of Union Territories that happen to be a state at the discretion of the Centre.
Let us also not put too fine a point on this. Even if Article 370 were to be scrapped, the proposal to alter Jammu and Kashmir’s status to Union Territory, even if temporarily, is designed to humiliate an already subjugated population. How dare a Muslim dominated state exist in India? Kashmir can now not even be trusted to be a state. The optics of this measure is not integration, it is humiliation, of a piece with subtle and unsubtle reminders to minorities of their place in India.
Let’s take the argument that this pain is worth the price, if it actually solves the problem. But will it? There will be a sullen peace, militarily secured, that we will mistake for victory. The very army, behind whom every patriot now hides, will now potentially be put in even more harm’s way: To be used more and more as the sole basis for keeping India together. And even if we concede to the tragic necessity of force, that force can work only in the context of a larger political and institutional framework that inspires free allegiance, not fear. But even if Kashmir resigns to its fate, pummelled by military might, the prospect of radicalisation in the rest of the country cannot be ruled out. There are already incipient signs of that. The theatre of political violence will shift. In the context of the communally sensitive arc from UP to Bengal and in Kerala, India will seem more fragile.
For, fundamentally, what this change signals is that Indian democracy is failing. It is descending into majoritarianism, the brute power of the vote; it will no longer have the safety valves that allowed inclusion. The feckless abdication of the Opposition will only deepen the sense of alienation. There are no political avenues for protest left. Most of the so-called federal parties turned out to be more cowardly than anyone anticipated; the Congress can never stand for any convictions. Not a single one of us can take any constitutional protections for granted. Parliament is a notice board, not a debating forum.
Let us see what the Supreme Court does, but if its recent track record is anything to go by, it will be more executive minded than the executive. Kashmir is not just about Kashmir: In the context of the UAPA, NRC, communalisation, Ayodhya, it is one more node in a pattern hurtling the Indian state towards a denouement where all of us feel unsafe. Not just Kashmiris, not just minorities, but anyone standing up for constitutional liberty.
The larger worry is the fabric of our culture that is making this possible. There is a propaganda machinery unleashed with the media that builds up a crescendo baying for blood and calls it nationalism. There is the coarsening of human sentiments that makes empathy look worse than violence. There is the sheer political impatience with any alternative. The old Congress system of dealing with these issues appears so decrepit and corrupt that even a total carpet bombing of institutions and morality will be better. There is a kind of cruel aestheticism in our politics where audacious evil will be celebrated for its audacity, and mundane goods will invite contempt because they are mundane.
These proposals are not about solving a problem. What is playing out in Kashmir is the warped psyche of a great civilisation at its insecure worst. The BJP thinks it is going to Indianise Kashmir. But, instead, what we will see is potentially the Kashmirisation of India: The story of Indian democracy written in blood and betrayal.
Think of the proposal’s broader ramifications. India has betrayed its own constitutional promises. India has many asymmetric federalism arrangements outside of Kashmir. This act potentially sets the precedent for invalidating all of them. How can we justify offering Nagaland asymmetric federalism but deny it to Kashmir? Its implication is that the government can unilaterally declare any existing state to be a Union Territory. This is a constitutional first. We are simply a union of Union Territories that happen to be a state at the discretion of the Centre.
Let us also not put too fine a point on this. Even if Article 370 were to be scrapped, the proposal to alter Jammu and Kashmir’s status to Union Territory, even if temporarily, is designed to humiliate an already subjugated population. How dare a Muslim dominated state exist in India? Kashmir can now not even be trusted to be a state. The optics of this measure is not integration, it is humiliation, of a piece with subtle and unsubtle reminders to minorities of their place in India.
Let’s take the argument that this pain is worth the price, if it actually solves the problem. But will it? There will be a sullen peace, militarily secured, that we will mistake for victory. The very army, behind whom every patriot now hides, will now potentially be put in even more harm’s way: To be used more and more as the sole basis for keeping India together. And even if we concede to the tragic necessity of force, that force can work only in the context of a larger political and institutional framework that inspires free allegiance, not fear. But even if Kashmir resigns to its fate, pummelled by military might, the prospect of radicalisation in the rest of the country cannot be ruled out. There are already incipient signs of that. The theatre of political violence will shift. In the context of the communally sensitive arc from UP to Bengal and in Kerala, India will seem more fragile.
For, fundamentally, what this change signals is that Indian democracy is failing. It is descending into majoritarianism, the brute power of the vote; it will no longer have the safety valves that allowed inclusion. The feckless abdication of the Opposition will only deepen the sense of alienation. There are no political avenues for protest left. Most of the so-called federal parties turned out to be more cowardly than anyone anticipated; the Congress can never stand for any convictions. Not a single one of us can take any constitutional protections for granted. Parliament is a notice board, not a debating forum.
Let us see what the Supreme Court does, but if its recent track record is anything to go by, it will be more executive minded than the executive. Kashmir is not just about Kashmir: In the context of the UAPA, NRC, communalisation, Ayodhya, it is one more node in a pattern hurtling the Indian state towards a denouement where all of us feel unsafe. Not just Kashmiris, not just minorities, but anyone standing up for constitutional liberty.
The larger worry is the fabric of our culture that is making this possible. There is a propaganda machinery unleashed with the media that builds up a crescendo baying for blood and calls it nationalism. There is the coarsening of human sentiments that makes empathy look worse than violence. There is the sheer political impatience with any alternative. The old Congress system of dealing with these issues appears so decrepit and corrupt that even a total carpet bombing of institutions and morality will be better. There is a kind of cruel aestheticism in our politics where audacious evil will be celebrated for its audacity, and mundane goods will invite contempt because they are mundane.
These proposals are not about solving a problem. What is playing out in Kashmir is the warped psyche of a great civilisation at its insecure worst. The BJP thinks it is going to Indianise Kashmir. But, instead, what we will see is potentially the Kashmirisation of India: The story of Indian democracy written in blood and betrayal.
(Jean Dreze.)
VII.
Kashmir developments risk further impacting on people's rights: UN
United Nations, Aug 7 (UNI) The Indian Government’s decision to revoke part of the Constitution relating to the special status of Indian-administered Kashmir risks worsening democratic freedoms there, the UN human rights office (OHCHR) said on Tuesday.
Amid reports that “hardly any information at all” is emerging from the Indian-administered side of the long-disputed territory, spokesperson Rupert Colville cited a UN report alleging that authorities suppressed communication networks, conducted arbitrary detentions, and punished opponents.
“We are seeing again blanket telecommunications restrictions – perhaps more blanket than we’ve ever seen before - the reported arbitrary detention of political leaders and restrictions on peaceful assembly”, he said. “These restrictions will prevent the people of Indian-Administered Kashmir and their elected representatives from participating fully in democratic debate about the future status of Jammu and Kashmir.”
Tensions over Kashmir – which rose sharply after a deadly suicide bombing in February targeting Indian security forces in Pulwama - continue to have a “severe impact” on people’s rights, including the right to life, according to the UN human rights office.
India and Pakistan fought several conflicts over the disputed region and the UN has been mandated since 1949, to monitor the ceasefire between the two countries.
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