Anatomy of a fraud

Article 370 of the Indian constitution, which forms the basis of the accession of the state of Jammu and Kashmir to the Indian Union and provides for the manner in which the said constitution shall apply to Jammu and Kashmir, has not been repealed or made inoperative. Not yet.

However, a fraud with the Indian constitution and the people of Jammu and Kashmir has been played. This fraud would have been laughable were it not so deeply venomous. Not only has Article 370 been denuded of immediate significance the scene has also been set for a final assault on its existence. Consider.

In forging a temporary relationship between the people of Jammu and Kashmir and the Indian Union, Article 370 of the Indian constitution, enacted in 1949, had reflected India's commitments to the world community and the people of Kashmir that Kashmiris would have a decisive voice in all matters concerning them, even prior to self-determination through a plebiscite. The fraud played out on August 5 had a precise purpose: the silencing of Occupied Kashmir. That the fraud will fail in the hearts of the people of Kashmir and on the streets and in the meadows is a tragedy foretold.

Article 370(1)(d) states that the provisions of the Indian constitution shall apply to Jammu and Kashmir with such exceptions and modifications as the president may by order specify. As regards matters with respect to which authority was not ceded to the Union of India (all matters other than foreign affairs, defence and communications) in the Instrument of Accession, a presidential order creating exceptions or modifications to the constitution of India in its application may only be made with the concurrence of the Government of Jammu and Kashmir.

On December 18, 2018 the state of Jammu and Kashmir was placed under presidential rule in terms of Article 356 of the Indian constitution. The elected government had earlier been ousted in June 2018 when governor’s rule was imposed. In November 2018 the elected legislative assembly of Jammu and Kashmir was dissolved. The powers of the Jammu and Kashmir assembly thereby became vested in the union legislature.

Article 3 of the Indian constitution permits, through an act of the union parliament, alterations to the area comprised in a state. However, such a bill may be introduced in either house of parliament only on the recommendation of the president. The president may not make such recommendation without first having referred the proposed bill to the legislature of the state whose area is to be altered.

With the powers of the dissolved legislative assembly of Jammu and Kashmir having been placed in the union legislature in New Delhi, the requirement to make referral to the state legislature was purportedly satisfied on August 5, 2019 through the reference made by Amit Shah, the union interior minister, to the Lok Sabha. The intent of the Indian constitution to not allow variations in the territory of a state without the elected house of that state having a say has been thwarted by what can only be described as a fraud played on the rights of the people of Kashmir. With this the legislative route to carving Ladakh out of the State of Jammu and Kashmir as a distinct union territory was laid bare. The fraud does not stop here.

With the elected government removed, the concurrence of the Government of Jammu and Kashmir required by Article 370(1)(d) for exceptions or modifications to the Constitution of India in its application to Jammu and Kashmir was obtained by the president of India, presumably, through consultations with himself acting as the Government of Jammu and Kashmir, following the proclamation of of December 18, 2018.

Pursuant to the concurrence with himself, the president of India issued on August 5, 2019 the Constitution Application Order 2019 that supersedes the Constitution Application Order 1954. The Order of 2019 applies the Constitution of India in its entirety to Jammu and Kashmir, except for an insidious modification made to Article 367 of the said constitution in its application to Jammu and Kashmir. The most important immediate effect of the supercession as aforesaid is to abolish Article 35A that was added as a constitutional safeguard to the Constitution of India as applied to Jammu and Kashmir by the Constitution Application Order 1954.

Article 35A stated that laws made by the Jammu and Kashmir legislature defining persons that are to be considered permanent residents of that state, and restricting ownership of immovable property, government jobs, settlement in the state and right to scholarships and other forms of aid from the state government to such permanent residents would not be considered void on account of the exclusion of other Indian citizens from such privileges.

With the supercession of the Constitution Application Order 1954 and the consequent abolition of Article 35A the laws made by the Jammu and Kashmir legislature reserving for permanent state residents the privileges and rights previously protected by Article 35A can now be challenged and declared void on account of discrimination against other citizens of India. Jammu and Kashmir stands absorbed fully as a state within the common political and economic union of India. This, however, is for internal purposes. The status of Jammu and Kashmir as disputed territory in international law is not affected.

Article 367 of the Indian constitution lays down rules for interpreting the provisions of that Constitution. By modifying Article 367 of the Indian constitution in its application to Jammu and Kashmir, the Constitution Application Order 2019 has held that the reference in Article 370 to the constituent assembly of Jammu and Kashmir shall be taken to mean reference to the legislative assembly as may exist from time to time. The effect of this modification is to pave the way for the abolition of Article 370.

Article 370(3) of the Indian constitution states that the president may, by public notification, declare that Article 370 would no longer be operative or would be operative only with such exceptions and modifications as the President may specify. However, for such a public notification to be issued the President must have received the recommendation of the Constituent Assembly of the state of Jammu and Kashmir.

The constituent assembly that was convened in for framing a constitution for Jammu and Kashmir served out its tenure in 1957. It is clear that the power to recommend that Article 370 be declared inoperative or operative with modifications was specific to the constituent assembly. No such power survived the demise of the Constituent Assembly of Jammu and Kashmir.

The Constitution Application Order 2019 has relied on Article 370(1) to modify Articles 367 and 370(3) so as to, in effect, replace the words 'Constituent Assembly' with the words legislative assembly. While the demise of constituent assembly and its ability to recommend the termination or modification of Article 370 is an event firmly in the past, the election of a legislative assembly is a recurring event. This opens up the possibility of a future legislative assembly of Jammu and Kashmir recommending to the president of India the issuance of a notification declaring the formal demise of Article 370. The spirit of Article 370 and with it the voice of the people of Kashmir already stands snuffed out on August 5, 2019.

Matters will now surely come up before the Indian judiciary. Will the Indian courts hold firm as guardians of the rights of a beleaguered minority against the majoritarian might of the Indian state and society? It is always a sad day when courts look upon themselves as purveyors of state projects backed by the powers that be. Courts are not instruments of power. Nor are they implements for engineering the polity. All courts would do well to remember that they are chambers in which principles alone must speak.

The writer is an advocate of the SupremeCourt of Pakistan.

Email: salmanr2002@hotmail.com

Twitter: @salmanAraja