Abrogating Article 370 – Legal Evaluation

Abrogating Article 370 is not something that the present Government of India (GOI) decided just at the tap of a hammer. It was much calculated and much weighed option by the Think Tank behind the execution of this step. Many of the people have marked this whole process as hasty decision by the Government after Pakistan's Prime Minister Imran Khan had a meeting with US President Donald Trump. In the press conference following the meeting the US President Donald Trump referred to some discussion between him and Indian Prime Minister Narendra Modi about Mediation for peace in Kashmir. This however would not be the case as we evaluate the steps by GOI.

We would also evaluate the legality of the Abrogation of Article 370 as well as Article 35A as there are almost 17 Petitions filed in the Supreme Court of India challenging the legality of the Abrogation of said articles through a Presidential Decree. But before that a brief history of Article 370 and Article 35A

Article 370 was adoption to the Constitution of India on October 17, 1949, almost 2 years after the Treaty of Accession was signed (October 26, 1947). This adoption was identified temporary in nature and provided autonomous status to the State of Jammu & Kashmir that included Ladakh, Jammu, Kashmir (including POK) as well as Gilgit Baltistan. This article became operative on November 17, 1952 while the Constitution of India was not yet adopted until 1956.

Article 35 A was added to the Constitution of India on 14 May 1954 through a Presidential Decree, -The Constitution Order, 1954, Applicable to Jammu and Kashmir. This discriminating article created the divide between Residents of Jammu and Kashmir as in 1947 v/s the refugees who migrated from Pakistan during the partition as well as the people from Valmiki Samaj who were brought to Jammu and Kashmir to do "menial" jobs. This article ensured that the later set of people are marked as "non-citizens" of state of Jammu and Kashmir with No rights at state level including jobs as well as Voting rights.

So, with regards to the Article 35 A, introduced by a Presidential Order and revoked / Abrogated through another Presidential Order, the legality doesn't;t make sense as neither the GOI followed Parliamentary Process then nor was it required on August 5, 2019 when it was abrogated.

That now brings us back to Article 370, abrogation of which is causing all the Noice in Parliament as well as Media by the opposition Parties as well as certain Opinions published across the Indian and Global Web and Print Media. For an evaluation of the Abrogation of Article 370, we review the now Abrogated clauses of Article 370, the article could not have been abrogated without the acceptance from the Legislative Assembly of Jammu and Kashmir, but the GOI did it. How did the GOI do that if the legality of the whole case can be questioned and when we have the Supreme Court that may review such passage of an Act in the Parliament. We know that if the Supreme Court would find the step to be illegal, there would be a Constitutional Disaster in the country including a defacement for the current Government. This calls for a review and evaluation of the pre-curser of the event with regards to Jammu and Kashmir -

1. Bhartiya Janta Party (BJP) supporting a Government with People's Democratic Party (PDP) and getting the detailed information on the overall Electoral base of PDP. With this step, BJP also ensured that PDP gets isolated from Indian National Congress (Congress) as well as National Conference (NC)
2. Background legal evaluation begins for abrogation of Article 370 under the then one Minister of India
3. BJP and PDP have a fallout, the state Legislative Assembly is dissolved and President's Rule is invoked in Jammu and Kashmir
4. Over a period of time the legal reviews are completed and strategy is formed to Abrogate Article 370
5. During its second term, under Narendra Modi led BJP Government, a bill is introduced in Parliament on the Reservation for Jobs in Jammu and Kashmir. Very aptly the rights of state Legislative Assembly are conferred to the Governor of the State, which most of the Opposition leaders do not oppose as the said bill was on "Reservation"
6. Once the Governor of State gets the rights of State Legislative Assembly, President doesn't have to then look for elected representatives forming the Legislative Assembly constituents and recommendation of the Governor is good enough as the recommendation of State Legislative Assembly
7. Governor of Jammu and Kashmir recommends Abrogation of Article 370 and a Presidential Order is issued to this effect
8. Bill is presented in the Parliament for Bifurcation of Jammu and Kashmir into two Union Territories of Jammu and Kashmir and Ladakh. This is passed by both the houses with required 2/3rd majority. Done deal, Constitutional process followed and adhered to

Now the above seven steps if evaluated and if understood would render any such petition as a mislead interpretation of the overall process and the two bills that paved the way to Abrogate Article 370. GOI achieved what it wanted to and to ensure better development in the region as well as counter the terrorism by limiting the trouble area.

Article 370 and Refugees

It is a very interesting case where the article 370 specifically crafted out at the time of JLN doesn't provide any rights of settlement in J&K to Indian citizens. Moreover, those who migrated to the state after a particular date or time haven't been given the right to vote and right to apply for government post in the state.  The gravity of the situation is so gross that the Kashmiri Brahmins were literally thrown out of the Kashmir Valley, their homes, to become refugees in own country and live in camps away from their rightful place in their homes in J&K.

Now, come the case of Rohingyas from either Bangladesh or Myanmar, all the rules and all the cases of cultural imbalance are being thrown out of the window by the state government to let the specific organizations settle these Refugees from altogether another country in J&K and more so in the Jammu & Laddakh areas.  

Why is the question that needs to be answered by the state government, supported by non other than BJP.  It indeed is a pretty serious or should I say precarious situation that would go long way to create more crisis in the state by actually creating an imbalance in the two belts that are predominantly non-muslim areas.  

Should we actually look at the case where both the Jammu as well as Laddakh had raised the concern of violence in Kashmir Valley to separate from the country. Representatives form the two regions went out to the extent of seeking separation from J&K into their own regions and still stay with India.

So, now why is the Secular sect of India so silent on this state sponsored migration to J&K region creating cultural imbalance? Why is media not highlighting the case and bringing out the facts to all of us.  Interestingly this very same media was at the forefront of reporting against palate guns and talking in favor of stone pelters; this media was the one fueling the fire and putting words in mouth of anti-India movement.

For me, it is the high time that article 370 itself is repealed and the state of J&K in itself welcomes all the citizens of India equally.  This will not just have flourishing trade, but also all round development of the region as a whole.

Ghost Writers of my Country

Kashmir has been the epic problem that the Indian Union is trying to solve from last almost 6 decades, but thanks to Pakistan to have been able to keep alive the sessions of terrorism in the Kashmir Valley.  Also, the so called intellects and the Ghost Writers of Creative Indian Fraternity have been supporting the cause of Pakistan (knowingly or unknowingly is left to their conscious).  Just recently one of the famous young politician of India - Jyotiraditya Scindia had made a bold statement in Parliament - "We should stop blaming only Pakistan and look within us!!" Well I totally agree with him and after listening to my friend Veer - A Kashmiri Pandit on Youtube, I tend to agree with Mr. Scindia more and more.

I had already tweeted following in agreement of Mr. Scindia - 

1. agreed, so let's unanimously agree that Keeping Sardar Patel away from #Kashmir issue was the biggest fault
2. Article 370 is the second big mistake we own from the point of view of #Kashmir and this needs to be eradicated
3. #Kashmir issue needs to expand to #GilgitBaltistan along with #POK and the state of #JammuKashmir.
4. both PDP and National Conference must be barred from elections and any political referendum
5. Bar Hurriyat as Anti National organization, just like SIMI and other terrorist outfits

However, after listening to Veer and the pain that emerges in his words and his voice, I was pushed to add the following points to look internally (yeah before blaming Pakistan) -

1. Refine the guidelines for media houses to speak on the various topics - 
1. They for now raise topics in a fashion that defines a terrorist as martyr and creates a wave of sympathy towards terrorism
2. Provides fuel to the leftist agenda causing more uproar against the government, certainly to hinder the overall government work and create a ruckus on the name of "Freedom of Speech"
3. Provide more fuel to the Government officials and Politicians in Pakistan on the way "India is acting against the general will of its public". Hell no, Media doesn't define the general will, its the opinion of the columnist only.
4. Create a negative impression on the India as a country with representation through negative statements against the Government
2. Refine the guidelines for the creative writers who tend to be Big time Socialites and Experts on various topics. Excuse me on this, I tend to totally disagree and the live example of that is Shobhaa De.A creative writer can't always provide solutions to real life problem and specifically Kashmir, hell no.

So, let's look at the role of Shobhaa De on Kashmir, she is a self proclaimed expert on Kashmir issue with half baked knowledge of the same. She herself doesn't know the way the issue crept up and is known to profess referendum in Kashmir. My question to her and all the likes of her is - "Why should referendum be conducted without fulfilling the base requirements for conducting referendum?"

More so, do the likes of Shobhaa De and other's like Rajdeep Sardesai, Rahul Kanwal, Rana Ayyub, Barkha Dutt, Sagarika Ghoshe etc even know that the Problem of Kashmir involves larger areas of Gilgil Baltistan rather than just the POK and J&K?? Do they even have a idea that Pakistan has given only a small portion to Kashmiris and called that as Azad Kashmir and swallowed a larger portion of Gilgit Baltistan within its territories to enable easy access to trade with China. Pakistan even went ahead to gift a portion of the Kashmir territory to China, now is this known and acceptable to these Pseudo Intellects??

Asking for referendum as per UN resolution is easy, but there is a strict need for them to go ahead and read the full resolution that includes -

1. Pakistan to demilitarize and stop offensive tactics from the entire Kashmir region including J&K, POK and Gilgit Baltistan
2. India to reduce military presence in J&K to ensure that it matches the positive development by Pakistan
3. Conduct referendum in the entire region not just J&K to ensure that the results are well balanced and represent 100% of the population to be considered and not just a few

It is also interesting to look at the overall composition of the region where the actual fraction creating and participating in the trouble making exercise is only around 35% to 40% of the entire population. And this fraction is said to be Sunni Muslim population. Shiites are said to have stayed away from participating in this controversy and have mostly condemned atrocities on Shias in Pakistan.

Moreover, the Pseudo Intellects to the likes of mentioned above also need to understand that Kashmir as a region has other religions and sects (namely Bodhha, Gujjars, Kashmiri Pandits, Mons etc) than just Sunni Muslims (who apparently get funding from ISI to terrorize the region).

These pseudo intellects also need to Read and be informed that Indian Army has captured 2 terrorists alive and they are of Pakistani Origin in just last 2 days or so. These terrorists have nothing to do with kashmir, they are just mercenaries to join the terrorist outfit for 72 virgins in the heaven (though they are hardly destined for that area).

May the Peace Prevail in the region!!!

Jammu Kashmir and Article 370 - An Assessment - Part II

Continuing from Jammu Kashmir and Article 370 - An Assessment - Part I

I hope you have had a good read from the Part I of this series. It would be important now to focus on the aspects of Article 370 from the Constitution of India that gives Autonomous Status to J&K with its on Penal Code and Constitution.

The Article 370 as it reads for itself "Temporary Provisions with respect to the State of Jammu and Kashmir" never proved to be temporary till date and day by day is becoming more permanent fixture to the Constitution of India.  Though way back in October 1949, Maulana Hasrat Mohini had raised a question - "Why this discrimination please?" to which the Answer by Mr. Ayyangar was "For a variety of reasons J&K , unlike other princely states was not ripe for integration as India and Pakistan had been at war over J&K, and although there has been a ceasefire, the conditions still were unusual and abnormal. Part of State's territory is in hands of rebels / enemies."

So that laid the foundation that was then casted over with some concrete agreements and negotiations leading to inclusion of Article 370 in the constitution of India.

The clause by clause coverage of Article 370 - 

1. Notwithstanding anything in this Constitution (a) the provision of Article 238 shall not apply in relation to the State of J&K;

Note: Article 238 has been Omitted by Constitution by 7th Amendment Act 1956. So this clause seems to automatically seem to stand Null & Void

1. (b) the power of Parliament to make laws for the said State shall be limited to,(i) those matters in the Union List and the Concurrent List which, in consultation with the Government of the State are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws far that State; and (ii) such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify.

Note: Since than a series of Presidential Orders have made most Union Laws applicable to the State of J&K, thus eroding this section in particular. Today there is NO institution of India that does not include I&K within its Jurisdiction.

1. (c) the provisions of article 1 and of this article shall apply in relation to that State; 

1. (d) such of the other provisions of this Constitution may apply in relation to that State subject to such exceptions and modifications as the President may by Order Specify: Provided that no such order which relates to the matters specified in the instruments of Accession of the State referred to in Paragraph (i) of sub-clause (b) shall be issued in consultation with the Government of State: Provided further that no such order which relates to matters other than those referred in the last preceding proviso shall be issued except with the concurrence of that Government.
2. If the concurrence of the Government of the State referred to in paragraph (ii) of sub-clause (b) of clause (1) or in the second proviso to subclause (d) of that clause be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon. 
3. Notwithstanding anything in the foregoing provisions of this article, the President may by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify: 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.

Note: Interesting portion here now is the Sub-clause 1 (d) was exercised in 1956 when the Constituent Assembly of J&K passed the resolution of Accession to India.  So now if we look at that sub-clause, it is another section that stands Null and Void.  So eventually the Clause (1) of the Article is practically defunct.....

To have a deeper look at the Clause (2) of the Article, J&K State Constitution as framed in 1956 and last amended in 2002 (29th Amendment) has a preamble - 

WE, THE PEOPLE OF THE STATE OF JAMMU AND KASHMIR, having solemnly resolved, in pursuance of the accession of this State to India which took place on the twenty sixth day of October, 1947, to further define the existing relationship of the State with the Union of India as an integral part thereof, and to secure to ourselves- JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and' worship; EQUALITY of status and of opportunity; and to promote among us all ; FRATERNITY assuring the dignity of the individual and the unity of theNation; IN OUR CONSTITUENT ASSEMBLY this seventeenth day of November, 1956, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION. 

Further in Part II of the Constitution of J&K it reads - 

Extent of executive and legislative power of the State:- The executive and legislative power of the State extends to all matters except those with respect to which Parliament has power to make laws for the State under the provisions of the Constitution of India.

So if we actually review the whole case, there is nothing from Article 370 that has anything that is valid for the date the controversy over it is brewing.  I am not sure what is the use of this particular Article 370 any more?

Why are politicians so whimsical to make statements that would help only insurgents and not the Citizens / Residents of the State.

The Article 370 for itself provides for omitting this article from Constitution by the way of a Presidential Order.  the only catch is with due support from the States Constituent Assembly....and with the both Ruling and Opposition Parties in J&K opposing that move....it seems a bit difficult a situation.

Overall, Article 370 is does neither seem to be standing relevant in present time, nor does it seem to be applicable to / favoring the situation of J&K.....It just is fueling further separatist sentiments and keeping the Kashmir Pandits away from where they belong.

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References:

• Article 370 of Constitution of India
• Constitution of Jammu & Kashmir
• Article 370: The untold story
• What is Article 370?
• Understanding Article 370