#Article370 is not Scrapped (yet) but the ground has been laid
While the media coverage has been rife that Article 370 is no more, the truth is far darker.
TL;DR: Article 370 hasn’t been abrogated (yet), but a path has been set to make its abrogation easy (provided Supreme Court caves in)
Part 1: No abrogation of Article 370; Presidential Order of 1954 superseded
Much and more has been written about the new government order i.e. the Presidential Order titled The Constitution (Application to Jammu & Kashmir) Order, 2019. While much of the discussion has centered around the romantic feeling that Article 370 has been scrapped, a closer look at the order reveals otherwise, an even darker picture — one of deceit, abuse of power and constitutionality impropriety.
To understand it, let us first start with the text of Article 370, specifically Article 370(1)(d) and clause 3.
Effectively, what Clause 1(d) states is that aside from Article 1 and Article 370 of the Indian Constitution, only those provisions will be applicable in the state which has been passed by the President in consultation (if subject belongs to Instrument of Accession) or in concurrence (if not belonging to IoA) with the state government.
Similarly, the second part of Clause 3 specifies that in order to repeal or scrap Article 370 itself, the same can be done by a Presidential Order issued on the recommendation of the Constituent assembly (which you would be aware is no longer present since 1956 passage of Jammu and Kashmir’s Constitution).
Once you have understood that, let’s get back to today’s Presidential Order.
As one can see, the present order has been issued under Article 370(1)(d) that allows other constitutional provisions to make their way to J&K (and not under 370(3) which is what is required to abrogate Article 370 itself).
And what the order basically does is amend Article 367 which contains general rules regarding the interpretation of the Indian Constitution. Now, let us look at the amendments introduced.
- Any reference in the Constitution to the Government of Jammu & Kashmir = a reference to the Governor of the State i.e J&K constitution is the Governor himself/herself.
- Any reference to the Sadar-i-Risayat (elected head of State) of Jammu & Kashmir = a reference to the Governor of J&K. i.e Sadar-i-Riyasat is the Governor
- Constituent Assembly of Jammu & Kashmir referred to in the proviso to clause (3) of Article 370 shall be read as Legislative Assembly of Jammu & Kashmir.
The third point is the most important one. Now, you get where we are going. The order basically tries to go back and change the nomenclature so that when the time comes or if this order survives the test of the judiciary, all that they need to do is issue a presidential order under 370(3) and Article 370 will cease to exist.
There is this another technical issue. Constituent assembly and legislative assembly are two different things. While the former is a sovereign body tasked with drafting and adopting the constitution, the latter comes into effect after a constitution has been passed and elections are done. Replacing one by the other solely through a presidential order is nothing short of criminal.
Other than these two inferences, there are two broad questions:
- Since any Order under Article 370(1)(d) only applies to provisions other than those mentioned in Article 370 itself (i.e. Article 1, 370 and 368) how come these be used to insert something that applies to some provision that is within it? (Article 367 changes the interpretation of “Constituent Assembly” which is present in Article 370 itself).
- Since the amendment to Article 367 amounts to a Constitutional Amendment, how can these be effected using an executive order? It will require a special majority with 2/3rd members in RS and LS present and voting.
Part 2: Bifurcation
Alongside amending Article 367 surreptitiously to make way for the future 370 abrogations, the Home Minister also announced a bifurcation plan to break the state into two — Large but sparsely populated Ladakh and densely populated but restive Kashmir. While the former will be a UT administered from the center, the later will be a UT with its own legislative assembly. Though no one knows if elections will ever happen. It is perhaps the first time that a state has become a union territory. Usually, it's the other way round.
The plan is to separate Buddhists, Muslims and Hindu vote banks into separate parts. There have been rumors about a possible delimitation exercise too. If that goes the way the rest of the things happen in this government, we might very well see a Hindu dominated Kashmir. The end game is not to bring peace in Kashmir or solve its problem, the real aim is to gain power, whatever be the cost.
It begs the question, is it democratically sound to alter a state boundary without taking the will of the state into account? To take advantage of a president rule to push state reorganization is unethical, undemocratic and possibly, unconstitutional.
Furthermore, since some parts of the state i.e. POK is under foreign occupation with even UNSC having stakes in the rules governing that area too, what will happen to them? Are they lost forever? How will they be integrated in the future? All agreements regarding integration of POK, Aksai Chin and POK areas leased to China by Pakistan rest on the premise that they will be resolved pending resolution of border disputes. If the state of J&K as it is known doesn’t even exist, aren’t all these agreements in limbo?
The Day is Dark and there is no Silver Lining
On the face of it, one might think how clever they are. But a closer look will reveal the true nature of the order, one which is full of deceit and low cunning. Furthermore given the fact that most of the pro-India politicians in the state were house-arrested prior to the announcement, that the communication system was virtually paralyzed with Internet and phone services switched off and that millions of people were kept in dark about the very laws that will severely impact their livelihood, the order reeks of constitutional impropriety that can’t be described in words.
It is a heavy-handed legislative sleight of hand from a government who has no regard for parliamentary procedures, no respect for the constitution, is derisive of opposition and dialogue and above all, is drunk on power. And if you think that this script — break down of civil liberties, the house arrest of politicians and a general communication blackout, will remain confined to J&K, think again.
Now, only the time will tell how this ploy works out in the long run, but one thing is clear. Kashmir, which has been burning since 2016 will see no respite. People will continue to suffer and by lumping everyone (pro-India politicians, loyalists, secessionists, nationalists, and militants) together, India lost all semblance of democracy in its affairs vis-a-vis Jammu and Kashmir.
The state of Kashmir is in a lockdown, with more than 4 lakh troops on the ground with clear instructions to keep the streets clear. Internet is down, Phone services are fobbed off, electricity is intermittent, schools are closed, Colleges are shut off, and Section 144 (a permanent feature of Kashmir life) is on. Think of the challenges being faced by the common people there. They can’t get food, can’t get to hospitals, can’t look for help in emergency conditions.
In the face of that, all we can hear around are the cheers — from politicians, media and people. They are sharing memes, laughing gleefully as if they have gained something. Little do they realize that once again, their problem of jobs has been masterfully diverted. For most of the Indians, Kashmir issue is exactly what they claim it is — a territorial dispute. It’s the land they covet, people just don’t matter.
If you wanna know the (il)legality of this, read these two articles below.
https://www.livelaw.in/columns/the-governments-article-370-move-is-unconstitutional-146962
