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Last Updated : Aug 09, 2019 06:54 PM IST | Source:

Digging Deeper | History in the making for Kashmir

In today’s edition of Digging Deeper, we’re looking briefly at the legal arguments for and against the govt’s actions, and what followed the NDA govt’s decision to abrogate Article 370.

Moneycontrol Contributor @moneycontrolcom

Unless you’ve been living under a rock, or in Kashmir, you’ve heard about the “repealing”/”revocation” of Article 370, which granted ‘special status’ to Jammu & Kashmir. We had an explainer earlier on the establishment of this Article and what the special provisions were.

In today’s edition of Digging Deeper, we’re looking briefly at the legal arguments for and against the govt’s actions, and what followed the NDA govt’s decision to abrogate Article 370.


What happened with 370?

The Article itself hasn’t been scrapped or modified. Renowned lawyer, and former Solicitor General of India, Harish Salve explained, “Article 370 provides that, by Presidential order, you may extend such provision of the Constitution from time to time as you consider necessary. Under this, a Presidential order had been issued in 1954, which extended certain provisions of the Constitution but...also added 35A. As is known, 35A was challenged in the Supreme Court and they said ‘yes, it does create discrimination but it was a political decision’ and they upheld it. Now, that Presidential order of 1954 has been superseded, exercising the power under Article 370...A new Presidential order has come where the entire Constitution has been applied to Jammu & Kashmir.”

And what about the bifurcation of the state into two union territories? Salve claimed, “Now that the full Constitution applies in the state...Articles 2 and 3 also apply. Which means there can be a state reorganization...Since J&K’s assembly is dissolved, Parliament will perform that duty for the state. So, they will consider it twice...once as the state assembly, and once again as the Parliament. Then the bill will become an Act.”

And that bit about being able to buy land in Kashmir? Salve explained, “...there are local laws that disallow outsiders from acquiring land in that state. If such laws are challenged as being in violation of Article 19.1(C), i.e, the right to freely move and settle in any part of India, or as violating the right to equality...the defence of 35A goes away.”

One thing to bear in mind here is that Article 35A does not appear in the main body of the Constitution but appears in Appendix I.

The Indian Express clarified that the Presidential Order has also ordered that references to the Sadr-i-Riyasat of Jammu and Kashmir shall be construed as references to the Governor of the state, and “references to the Government of the said State shall be construed as including references to the Governor of Jammu and Kashmir acting on the advice of his Council of Ministers”. So, this is the first time that Article 370 has been used to amend Article 367 (which deals with Interpretation) in respect of Jammu and Kashmir, and this amendment has then been used to amend Article 370 itself.

As another report explained, “The Presidential Order states that state government’s concurrence has been taken; it probably means the concurrence of the Governor, who is a nominee of the central government.” How does that work? To change the provision in the Jammu and Kashmir constitution regarding the Governor being elected by the state Assembly, Article 370 was used to convert the position into a nominee of the President.

The famous Parliament session on 370

The new Presidential Order needed an okay from Parliament. The Rajya Sabha session on Article 370 will be remembered for years, if not decades. Youtube will ensure that. It was also one of the most entertaining TV shows of 2019, thanks to Vice President Venkiah Naidu. Take, for instance, this nugget: Vaiko of Tamil Nadu expressed outrage at the Modi government’s gumption and authoritarianism, labeling the move the next Emergency. Naidu, refusing to give in to hyperbole, replied, “There is no emergency, only urgency.” How can you not be entertained?

The proposal was okayed in both houses of the Parliament. The Congress party, which was expected to mount a spirited challenge, made references to the book 50 Shades Of Gray, and looked like a divided house as many of its members voted in favor of the govt’s proposal. Yes, you heard that right, the records of the Indian parliament will contain, for posterity, a mention of the book 50 Shades Of Gray. I’d say the day didn’t go well fort the grand old party.

That said, as another renowned lawyer, Soli Sorabjee, claimed, “...there is nothing revolutionary about this.” And there’s good reason for Sorabjee to give a phlegmatic response when everybody around him is going nuts. A Presidential Order was passed in 1954 which ensured that nearly the entire Constitution (including most constitutional amendments) was extended to Jammu and Kashmir. Ninety-four out of 97 entries in the Union List are today applicable to Jammu and Kashmir as to any other state. Two hundred and sixty out of the 395 Articles of the Constitution have been extended to the state. Seven out of the 12 Schedules in the Constitution of India have also been extended to Jammu and Kashmir.

So why didn’t any of the governments prior to this one attempt to make this change? According to an analysis in the Indian Express, “Nehru probably lacked the political will, and wanted to honour the constitutional pact with Maharaja Hari Singh. He also had a sentimental connection with Kashmir. Atal Bihari Vajpayee’s idea was that of the healing touch — in the form of Kashmiriyat, Insaniyat and Jamhooriyat. The first Modi government was in an alliance with the PDP in Jammu and Kashmir till 2018. The Home Minister has said that once peace returns and the situation improves, the government will restore statehood to Jammu and Kashmir.”

Perhaps the final word on this issue could come from Jammu & Kashmir’s constitution itself. Article 3 of the Jammu & Kashmir constitution declares the state to be an integral part of India. The analysis in Express states that the preamble of the Jammu and Kashmir constitution does not contain claim to sovereignty. There is, instead, an acknowledgment that the object of the Jammu and Kashmir constitution is “to further define the existing relationship of the state with the Union of India as its integral part thereof”. Integration was, for all purposes, already complete. Article 370 merely gave some autonomy to Jammu and Kashmir, which has now been withdrawn.

All things considered, it could be a while before this issue is settled. The Supreme Court has upheld the ‘permanence’ of Article 370 on more than one occasion, so the legal proceedings should provide some interesting fireworks. That said, the Supreme Court will consider that Article 370 does give sweeping powers to the President. It could well take two to three years for a Constitution Bench of the court to decide such a challenge.

What’s happening now?

One question on everyone’s mind is, what do the Kashmiris think? Two of them, MPs from Kashmiri party PDP,  tore up a copy of the Constitution and were shown the door during the Rajya Sabha session. Farooq Abdullah, Omar Abdullah and Mehbooba Mufti were placed under house arrest, which led to rumours of a violent crackdown and some panic.

The centre had, of course, transported around 40,000 troops to the state, using the security of Amarnath Yatra as a pretext. All internet access has been blocked, mobile phone services are blocked, even landlines were blocked. Schools, colleges, shops etc were shut. It appeared Kashmir didn’t know history was being created in its name. However, given the large amount of security, it is an easy guess that trouble is expected. As of now, there’s a “calm before the storm” mood all around.

What did India’s politicians say about this big move?

The Congress party took objection to the stealthy approach of the government but it appeared to be divided. Ghulam Nabi Azad, a veteran politician from Kashmir, claimed the BJP had murdered the constitution. Ex-CM of J&K, Mehbooba Mufti, tweeted, “People like us who placed faith in Parliament, the temple of democracy have been deceived. Those elements in J&K who rejected the constitution & sought resolution under the UN have been vindicated.”

A fiery Derek O’Brien of Trinamool Congress claimed that the Constitution had been thrown into the dustbin. Surprisingly, Arvind Kejriwal tweeted in support of the govt and his party MPs backed the govt in parliament.

The reaction from across the border was quite strong. Pakistan prime minister Imran Khan chaired a meeting of the National Security Committee which was attended by civil and military leadership. Pakistan then downgraded diplomatic ties with India, expelled Indian High Commissioner Ajay Bisaria, suspended all bilateral trade, and announced its airspace would be partially closed to India for a month. This is important, given that India is one of Pakistan’s biggest trade partners. More strikingly, Hafiz Saeed, who is an accused in the 26/11 attacks on Mumbai and was recently arrested, has been released.

Okay, this one I didn’t see coming. So, the Afghan Taliban has a reaction to this issue, and it’s not what you’d expect. It’s press release states, “The Islamic Emirate...urges both India and Pakistan to refrain from taking steps that could pave a way for violence and complications in the region and usurp the rights of Kashmiris. Having gained bitter experiences from war and conflict, we urge peace and use of rational pathways to solve regional issues. We call on...OIC, Islamic countries, the United Nations and other influential institutions to...encourage both sides to prevent the spread of crisis and resolve the issue in a calm and composed manner. Linking the issue of Kashmir with that of Afghanistan by some parties will not aid in improving the crisis at hand.”

The Taliban is asking India and Pakistan to resolve matters peacefully. I did not make up any of that.

Reactions from other countries have been subdued. The US called the Article 370 issue an internal matter, as did UAE, Sri Lanka, and Maldives. China’s Foreign Ministry spokesperson Hua Chunying said the issue is a legacy of history between India and Pakistan, which is also the consensus of the international community. Their only objection was to, “...India's inclusion of Chinese territory in the western section of the China-India boundary under its administrative jurisdiction.” That means the Aksai Chin region, which is the border dispute we have on the border between Ladakh and China.

Those were the main events in the days immediately following the August 5 abrogation of Article 370. This promises to be a long, drawn out affair that could take a while to resolve.


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First Published on Aug 9, 2019 06:43 pm
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