The HINDU Notes – 06th August 2019 - VISION

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Tuesday, August 06, 2019

The HINDU Notes – 06th August 2019

📰 J&K loses its special status, divided into two UTs

J&K loses its special status, divided into two UTs
Ladakh will not have a legislature while Jammu & Kashmir will have one

•Ending Jammu & Kashmir’s special status in the Indian Union, the BJP government extended all provisions of the Constitution to the State in one go, downsized the State into two Union Territories and allowed all citizens to buy property and vote in the State.

•Leading the charge, Home Minister Amit Shah piloted two special resolutionsand a Bill creating the Union Territories of Jammu & Kashmir and Ladakh through the Rajya Sabha on Monday. While the Union Territory of Jammu and Kashmir will have a legislature, the one in Ladakh will not.

•The first resolution informed the House that the President had used his powers under Article 370 to fundamentally alter the provision, extending all Central laws, instruments and treaties to Kashmir. However, the drastically altered Article 370 will remain on the statute books.

•The government’s surgical strike on the State’s autonomy came as telephone and Internet services in the Valley were suspended, former Chief Ministers Omar Abdullah and Mehbooba Mufti remained under arrest and thousands of additional Central security personnel were deployed in the area.

•Mr. Shah said that if the Union Territory model worked well, the government would also consider giving Jammu and Kashmir the status of a State again and “no constitutional amendment would be required.” Prime Minister Narendra Modi was present during the proceedings.

•Mr. Shah said the Resolution for Repeal of Article 370 of the Constitution of India “would pass every legal scrutiny” and he was aware that an “NGO brigade” supported by some parties would challenge it.

•Slamming the Congress, Mr. Shah said, “It was your policy that has killed so many people, more than 41,000, since 1988. Why aren’t youth in Rajasthan, Gujarat or Odisha misguided? Because there is no Article 370 in these States.”

•Dismissing concerns that there would be “bloodshed” in the Valley, Mr. Shah said this was a “new experiment” and everyone should support it. “Terrorism cannot end in the State till Article 370 or 35A continue. They are an obstacle to development. We want to embrace the Kashmiri youth. The move will bring development, tourism and industries to the State. These opportunities till now were controlled by only three families,” he said.

•Governor Satya Pal Malik on Monday night reviewed the security situation with top officials in Jammu and emphasised the need for constant vigil to deal with any eventuality. The Army’s Northern Command chief Lt. Gen. Ranbir Singh met the Governor and briefed him about the security situation.

•Reacting to the developments, U.S. State Department spokesperson Morgan Ortagus said, “We call on all parties to maintain peace and stability along the LoC.”

•The provisions of Article 370 will cease to exist from the date the President of India issues a notification after the Lok Sabha passes the resolution on Tuesday.

•He termed Article 370 discriminatory on the basis of gender, class, caste and place of origin, adding it was “temporary in the first place and it has to go in the larger interest of the people of the State.” He said that from 2004 to 2019, the Centre sent over ₹2,77,000 crore to the State, but it did not percolate to the masses.
J&K loses its special status, divided into two UTs
•“In 2011-12, Centre spent ₹3683 per person in rest of India and Rs 14,255 per person in J&K. In 2017-18 Centre spent ₹8,227 per person in rest of India whereas in J&K it spent ₹27,258 per person. Even then there was no development in the State because of corruption. 370 stopped anti corruption bodies to function in the State. A monopoly was there,” Mr. Shah said.

•Congress leader and Leader of the Opposition Ghulam Nabi Azad described the move as murder of the Constitution and the democracy by the BJP-led government, stating that the accession of J&K to India had happened through Article 370. He said in the past 70 years, lakhs of people, many leaders and workers of the mainstream parties had made sacrifices, thousands of police and security personnel lost their lives in the State.

•Responding to Mr. Azad, Mr. Shah said the State was assimilated into India through the Instrument of Accession signed by Maharaja Hari Singh on October 27, 1947, and Article 370 came later. He said the Congress government had also amended Article 370 through the same process in 1952 and 1962.

📰 Explained | President’s Order scraps its predecessor and amends Article 370

The August 5 notification has been issued under Article 370 of the Constitution.

•The President’s notification of the Constitution (Application to Jammu and Kashmir) Order of 2019 of August 5 amends Article 370 of the Indian Constitution and scraps its 65-year-old predecessor, The Constitution (Application to Jammu and Kashmir) Order of May 14, 1954.

•By junking the 1954 Order, the notification takes away the special rights and privileges enjoyed by the residents of Kashmir. It has effectively allowed the entire provisions of the Constitution, with all its amendments, exceptions and modifications, to apply to the area of Jammu and Kashmir. This is evident from the text of the August 5, 2019 notification. For one, the 2019 notification “supersedes” the 1954 Order. And two, it declares that “all the provisions of the Constitution, as amended from time to time, shall apply in relation to the State of Jammu and Kashmir”.

•The August 5 notification has been issued under Article 370 of the Constitution. In short, the government has employed Article 370, which had once protected the 1954 Order giving special rights to the people of Jammu and Kashmir, to scrap the sexagenarian Order.

•So far, the Parliament had only residuary powers of legislation in J&K. This included enacted of laws to prevent terror and secessionist activities, for taxation on foreign and inland travel and on communication. Now, the Centre has proposed the Jammu and Kashmir Reorganisation Bill of 2019, which says the new Union Territory of Jammu and Kashmir would be administered/governed like the Union Territory of Puducherry.

•The Bill proposes wide powers to the Lieutenant Governor of the proposed Union Territory of Jammu and Kashmir and makes it the "duty" of the Chief Minister of the Union Territory to “communicate” all administrative decisions and proposals of legislation with the LG. Moreover, all Central laws and State laws of J&K would apply to the new Union Territories of J&K and Ladakh. Assets and liabilities of J&K and Ladakh would be apportioned on the recommendation of a Central Committee within a year. Employees of State public sector undertakings and autonomous bodies would continue in their posts for another year until their allocations are determined. The police and public order is to be with the Centre.

•The tabling of the proposed Reorganisation Bill is also proof that the long reign of the 1954 Order has ended. The 1954 Order had introduced a proviso to Article 3, namely that “no Bill providing for increasing or diminishing the area of the State of Jammu and Kashmir or altering the name or boundary of that State shall be introduced in Parliament without the consent of the Legislature of that State". That power of the State Legislature to give prior consent does not exist anymore. This has provided a free hand to the Centre to table the Reorganisation Bill.

•The 1954 Order had also brought into existence Article 35A. This Article gave the State Legislature of Jammu and Kashmir exclusive power to define classes of persons who are/shall be permanent residents of the State; to confer permanent residents special rights and privileges and impose restrictions upon other persons from outside the State; make laws and conditions for State government employment, acquisition of immovable property, settlement rights, scholarships and other forms of aid from the State government.

•With the removal of the 1954 Order, the power of the State Legislature ceases to exist and Parliamentary laws, including that of reservation, would apply to Jammu and Kashmir as it does in other parts of the country. The government called this the end of “positive discrimination” and the closing of the “chasm” between residents of J&K and citizens of other parts of the country.

•The removal of the 1954 Order further also negates a clause which was added to Article 352. The Order had mandated that no proclamation of Emergency on grounds “only of internal disturbance or imminent danger shall have effect” in the State unless with the concurrence of the State government.

•The second part of the August 5, 2019 notification deals with the addition of a new clause to Article 367 which amends the proviso to clause (3) of 370. Article 367 deals with the applicability of the General Clauses Act 1897 to interpret the provisions of the Constitution,.

•The August 5 notification amends the expression “Constituent Assembly”, contained in the proviso to clause (3) of Article 370, to mean “Legislative Assembly”.

•Clause (3) of Article 370 gives the President power to end the special rights and privileges of the people of Jammu and Kashmir under the 1954 Order. However, the clause carries a rider. That is, the President would have to first get the consent of the Constituent Assembly of J&K before issuing such a notification. This rider or check on the President’s power was intended to give the people of the State a say in their own future.

•Now, the Constituent Assembly has ceased to exist since 1956, when it was dissolved. The Assembly, at the time of its dissolution, had said nothing about the abrogation of Article 370. Consequently, Article 370, though it resides among the ‘temporary provisions’ of the Constitution, is deemed have become a permanent feature of the Constitution.

•The August 5 notification has tided over this obstacle of a non-existent ‘Constituent Assembly’ by amending the expression in the proviso to ‘Legislative Assembly’. Ideally, any such amendment to the name of the ‘Constituent Assembly’ would require the assent of the Constituent Assembly itself. Besides, an amendment in Article 370 should have undergone the constitutional amendment procedure envisaged under Article 368 of the Constitution.

•But the government can, on the other hand, argue that the amendment made in its August 5 notification only applies to Jammu and Kashmir and not the entire Dominion of India, and so, does not require a constitutional amendment. This point of contention may reach the Supreme Court, where several petitions on the constitutionality of Article 35A, and in consequence Article 370, are pending for adjudication.

📰 Bills against lynching, honour killing passed

Rajasthan Assembly nod for stringent provisions of punishment and penalties for the offences

•The Rajasthan Assembly on Monday passed two separate Bills against mob lynching and honour killing, making stringent provisions of punishment and penalties for these offences that were made cognisable and non-bailable. While honour killing will be punishable with death sentence, those convicted of lynching will be punished with life imprisonment and a fine of up to ₹5 lakh.

•With the passage of the Protection from Lynching Bill, 2019, Rajasthan has become the second State after Manipur to have a dedicated legislation that criminalises mob lynching as a special offence. The Manipur Assembly had passed a similar Bill in December 2018.

•The State has witnessed several incidents of mob lynching since April 2017, when Haryana’s dairy farmer Pehlu Khan was killed allegedly by a mob of cow vigilantes on the Jaipur-Delhi national highway. The Bill was introduced by Parliamentary Affairs Minister Shanti Dhariwal in the Assembly on July 30.

•The Bill was passed in the House by a voice vote amid protest by the Opposition BJP, which wanted it to be referred to a select committee for getting public inputs. Speaker C.P. Joshi put the Bill to voice vote thrice on the demand of BJP MLAs that the members supporting and opposing the Bill be counted.

Opposition stand

•During the debate on the Bill, Leader of the Opposition Gulab Chand Kataria said the Indian Penal Code already had sufficient provisions to penalise the offenders, while the Bill had changed an important definition by describing just two persons as a mob. He alleged that the Bill had been brought to please a particular community.

•Other BJP MLAs said the Supreme Court had made a recommendation only to Parliament to enact such a law and it contradicted the related provisions of IPC. BJP legislator and former Jaipur Mayor Ashok Lahoti said the Bill seemed to be “in favour of cow smugglers” and had been brought as a move against the majority community.

•Replying to the Opposition’s objections, Mr. Dhariwal said the Bill’s subject was part of the concurrent list and the State government had the power to bring such a legislation. He defended the definition of mob as two or more persons, saying two people had the ability to grievously harm the third person. He also described the Bill as a “progressive law”, which would promote social harmony.

Nodal officer

•The Bill provides for appointment of a nodal officer of the rank of Inspector-General of Police to prevent lynchings and establishment of relief camps in safe zones for the victims. It defines lynching as an act of violence, whether spontaneous or planned, by a mob on the grounds of religion, race, caste, sex, place of birth, language, dietary practices, sexual orientation, political affiliation and ethnicity.

•The Bill against honour killing, titled the Rajasthan Prohibition of Interference with the Freedom of Matrimonial Alliances in the Name of Honour and Tradition Bill, 2019, was passed after making a few amendments on the basis of suggestions given by some MLAs during the discussion.

•The Bill has laid down death penalty or life sentence and a fine up to ₹5 lakh for killing a couple or either of them on the basis that their marriage had dishonoured or brought disrepute to the caste, community or family.

•Chief Minister Ashok Gehlot had announced enactment of laws against mob lynching and honour killing while replying to the debate on the 2019-20 State budget on July 16.

📰 Lok Sabha passes Surrogacy (Regulation) Bill

The Bill regulates altruistic surrogacy, prohibits commercial surrogacy.

•The Lok Sabha on Monday passed the Surrogacy (Regulation) Bill, 2019 by a voice vote. The Bill, introduced by Union Health Minister Harsh Vardhan, seeks to ban commercial surrogacy and provides for constituting a National Surrogacy Board, State Surrogacy Boards, and the appointment of appropriate authorities for the regulation of the practice and process of surrogacy.

•Speaking on the Bill, Dr. Vardhan said: “The Bill is aimed at ending the exploitation of women who are lending their womb for surrogacy, and protecting the rights of children born through this. The Bill will also look after the interests of the couple that opt for surrogacy, ensuring that there are laws protecting them against exploitation by clinics that are carrying this out as a business.”

•“There are very few countries in the world which allow commercial surrogacy, with experts arguing that this is exploitation and abuse of human dignity. We cannot allow women in our country to be exploited without them actually understanding what is happening with them. The government has a duty to protect the interests of these women,” added the Minister.

•The Surrogacy (Regulation) Bill regulates altruistic surrogacy and prohibits commercial surrogacy. It defines surrogacy as a practice where a woman gives birth to a child for an eligible couple and agrees to hand over the child to them after the birth. The Bill allows altruistic surrogacy, which involves a surrogacy arrangement where the monetary reward only involves medical expenses and insurance coverage for the surrogate mother. Commercial surrogacy is prohibited under the Bill. This type of surrogacy includes a monetary benefit or reward (in cash or kind) that exceeds basic medical expenses and insurance for the surrogate mother.

Close relative

•The couple intending to commission a surrogacy arrangement must be a close relative of the surrogate mother. In addition, the couple have to be Indian citizens who have been married for at least five years and are in the age group of 23-50 years (female partner) and 26-55 years (male partner), and secure a medical certificate stating that either or both partners are infertile. The couple also should not have any surviving child (whether biological, adopted or surrogate), except if the surviving child is mentally or physically challenged or suffers from a fatal illness, among other provisions.

•The surrogate mother, apart from proving that she is a close relative of the couple intending the surrogacy, has to married with a child of her own, in the age bracket of 25 to 35 years old, and should not have been a surrogate mother before. The Bill states that any child born out of a surrogacy procedure shall be the biological child of the intending couple and will be entitled to all rights and privileges that are available to a natural child.

📰 Lok Sabha passes transgender protection Bill

The Bill provides a mechanism for their social, economic and educational empowerment.

•The Lok Sabha on Monday passed the Transgender Persons (Protection of Rights) Bill 2019 by a voice vote. The Bill provides a mechanism for social, economic and educational empowerment of transgenders and was passed amid noisy protests by some Opposition parties over Congress leader Adhir Ranjan Chowdhury not being allowed to speak on his adjournment notice. The protesters came into the well of the House and shouted slogans demanding that Prime Minister Narendra Modi make a statement about the Kashmir issue in the Lower House.

•Meanwhile replying to suggestions and queries on the Transgender Persons (Protection of Rights) Bill 2019, Minister of State for Social Justice Rattan Lal Kataria said the Bill makes provision for establishing a national authority for safeguarding rights of transgenders.

•"According to the 2011 Census there are more than 4.80 lakh transgenders in the country. These people are often discriminated upon and humiliated in public for being transgender. The Bill also has provisions for penalty and punishment in cases of offences and sexual harassment against transgender persons," he said.

•According to the Bill, a transgender is a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman (whether or not such person has undergone sex reassignment surgery or hormone therapy or laser therapy or such other therapy), person with inter-sex variations, gender-queer and person having such socio-cultural identities as ‘kinner’, ‘hijra’, ‘aravani’ and ‘jogta’.

•Going by the Bill, a person would have the right to choose to be identified as a man, woman or transgender, irrespective of sex reassignment surgery and hormonal therapy. It also requires transgender persons to go through a district magistrate and district screening committee to get certified as a transperson.

•A contentious provision that criminalised begging by transgender people has been removed from the Bill. The provision was part of the Bill when it was introduced by the previous government. The Bill had lapsed. 

📰 External Affairs Minister Jaishankar to visit China ahead of Modi-Xi summit

He will hold talks with his Chinese counterpart Wang Yi on bilateral, regional and global issues of mutual interest.

•External Affairs Minister S. Jaishankar will travel to China on August 11 on a three-day visit ahead of the second informal summit between Prime Minister Narendra Modi and Chinese President Xi Jinping in India in October.

•The Ministry of External Affairs (MEA), announcing the visit on Monday, said Mr. Jaishankar would hold talks with his Chinese counterpart Wang Yi on bilateral, regional and global issues of mutual interest.

First visit

•It will be Mr. Jaishankar’s first visit to China after becoming External Affairs Minister.

•The MEA said the two Foreign Ministers would also discuss upcoming high-level visits later this year.

•In Beijing, Mr. Jaishankar will also co-chair the second meeting of the India-China High Level Mechanism (HLM) on cultural and people-to-people exchanges on August 12 with Mr. Wang.

Wuhan meet

•The decision to establish the HLM was taken during the first informal summit between Mr. Modi and Mr. Xi in Wuhan in April 2018.

•The inaugural HLM meeting was held on December 21 last year here.

•“The second HLM meeting will provide an opportunity to follow up on the outcomes of the 1st HLM meeting and discuss new initiatives for enhancing people-to-people exchanges between our two countries,” the MEA said.

Greater synergies

•It said the HLM reflected the desire on both sides to build greater synergies in the people-to-people ties between the two countries through enhanced exchanges in areas such as tourism, art, films, media, culture and sports.

•In the second informal summit, Mr. Modi and Mr. Xi are likely to focus on further broadening India-China ties.

•The two leaders held their first informal summit in April last year in the Chinese city of Wuhan months after bilateral ties came under severe strain following a 73-day stand-off between the Armies of the two countries in Doklam.

📰 Scrapping J&K's special status is the wrong way to an end

The special status of J&K was never meant to be permanent, but it should not have been scrapped without wider consultations

•Jammu and Kashmir has been a theatre of muscular Hindutva nationalism, in the early decades in script and since 2014 in performance. Adopting a highly militarist approach to separatism, and shunning political process entirely since 2014, the BJP has now delivered on a promise it has long made, by abrogating the special status that Jammu and Kashmir had enjoyed in the Constitution through a combination of executive and parliamentary measures. Additionally, the State is being downgraded and divided into two Union Territories. The mechanism that the government used to railroad its rigid ideological position on Jammu and Kashmir through the Rajya Sabha was both hasty and stealthy. This move will strain India’s social fabric not only in its impact on Jammu and Kashmir but also in the portents it holds for federalism, parliamentary democracy and diversity. The BJP-led government has undermined parliamentary authority in multiple ways since 2014, but the passing of legislation as far-reaching as dismembering a State without prior consultations has set a new low. The founding fathers of the Republic favoured a strong Centre, but they were also prudent in seeking the route of persuasion and accommodation towards linguistic and religious minorities in the interest of national integration. The centralising tendencies increased in the following decades, but Hindu nationalists always argued for stronger unitary provisions and viewed all particular aspirations with suspicion. For them, Jammu and Kashmir’s special constitutional status was an impediment, not an instrument, for the region’s integration with the rest of the country.

•The entire exercise of getting Article 370 of the Constitution effectively abrogated has been marked by executive excess. The first step was to declare by a presidential decree that the ‘Governor’ — without regard to the fact that he has no Council of Ministers now to aid and advise him — can speak for the State government and give his concurrence to any modification in the way the Constitution of India applies to Jammu and Kashmir. Second, on the basis of this ‘concurrence’, the latest Presidential Order scraps the previous one of 1954, abrogating the separate Constitution of Jammu and Kashmir. Third, the fact that the State is under President’s Rule has been used to usher in a new dispensation under which Jammu and Kashmir becomes a Union Territory with a legislature and Ladakh another such territory without a legislature. In sum, a purported process to change the constitutional status of a sensitive border State has been achieved without any legislative input or representative contribution from its people. The bifurcation of States in the past cannot be cited as a binding precedent as, under Article 3 of the Constitution, the President seeks the views of the legislature of the States concerned, even if concurrence is not mandatory. In the present scenario, J&K has been represented by an unelected Governor appointed by the Centre, while Parliament has ventured to ratify the conversion of a State into two Union Territories without any recommendation from the State.

•If there is a legal challenge to these measures, it would centre around whether such far-reaching steps could be achieved in the absence of a representative government by assuming that its gubernatorial administrator is constitutionally capable of using his consent as that of the entire State. Further, there is a self-enabling aspect to the Presidential Order. It performs a hop-step-and-jump feat. It hops over the requirement of the State government’s consent by declaring that the Governor is the State government. It steps over the need for aid and advice by the ministerial council by saying the Governor’s opinion is enough. And it jumps over the fact that there is no constituent assembly now by merely reading the term as ‘legislative assembly’, and letting Parliament perform the role of the State legislature. Thus the President’s power under Article 370 has been used both to create an enabling provision and to exercise it immediately to modify the Order, thereby dispensing with the role envisaged for the State Assembly. While it is true that in 1961 the Supreme Court upheld the President’s power to ‘modify’ the constitutional provisions in applying them to J&K, it is a moot question whether this can be invoked to make such a radical change: a functioning State has now been downgraded and bifurcated into two Union Territories. It is inconceivable that any State legislature would ever have recommended its own demotion in status.

•True, the special status of J&K was meant to end, but only with the concurrence of its people. The Centre’s abrupt move disenfranchised them on a matter that directly affected their life and sentiments. Moreover, that this was done after a massive military build-up and the house arrest of senior political leaders, and the communications shutdown reveals a cynical disregard of democratic norms. It appears that the current government values J&K for its demonstrative impact before the rest of the country, as a place where a strong nation and its strong leader show uncompromising political will. But that may have other unintended consequences. Geographically and metaphorically, Jammu and Kashmir is the crown of secular India — a Muslim majority region in a Hindu majority country. Its people and leaders had chosen secular India over Islamic Pakistan, a fact that Islamists never reconciled with. The BJP’s adventurous route also has as backdrop an impending U.S. withdrawal from Afghanistan that will trigger an unforeseeable churn in Islamist politics in the region. Islamists have always viewed Kashmir as a component of their global grievances. Whatever its intent in enabling the full integration of Jammu and Kashmir with India, Monday’s decision to alter the State’s status could have unintended and dangerous consequences.

📰 Piecing together Kashmir’s audacious road map

The new doctrine will have to persuade Jammu and Kashmir that greater integration with India holds promise

•In 1948, the tallest leader of Jammu and Kashmir, Sheikh Abdullah, greeted Prime Minister Jawaharlal Nehru at Lal Chowk, Srinagar, with a couplet from the Sufi poet, Amir Khusro: “Mun tu shudam tu mun shudi,mun tun shudam tu jaan shudi; Taakas na guyad baad azeen, mun deegaram tu deegari (I have become you, and you me, I am the body, you soul; So that no one can say hereafter, that you are someone, and me someone else”). Five years later, Abdullah was dismissed from office and interned on the instructions of Nehru. Since then the body of Kashmir and the soul of the rest of the country have cohabited restlessly.

•On Monday, August 5, 2019, the Narendra Modi government made arguably the most audacious decision of its tenure and probably the boldest decision made by any government on Kashmir since Indira Gandhi arrived at a modus vivendi with Sheikh Abdullah in 1975. By moving to revoke the ‘special status’ granted to the State under Article 370, and by reorganising the State into two Union Territories — Jammu and Kashmir and Ladakh —it demonstrated unprecedented chutzpah, but it may have unleashed a chain of events difficult to predict or contain. For one, while even the founding fathers recognised that Article 370 was a transitional or temporary provision, there was a clear subtext; that its revocation would only happen once the acquiescence of the people of the State was obtained.

•There is no doubt that the move will be legally challenged on grounds of procedural infirmities and, more substantively, that it undermines the basic feature of the compact between Delhi and Srinagar that was agreed upon in 1947. But beyond the legality, the real test will be on the streets of Srinagar, Jammu and Delhi once the security cordon is lifted from the State. What was unbecoming is the unwillingness to enter into consultation with the mainstream political leaders; in no other State would former Chief Ministers have been dealt with so cavalierly. Similarly, the impression that the move on Article 35A is designed to engineer demographic change rather than to protect the rights of women and other marginal groups of the State, will need to be corrected.

A mirror to geopolitics

•The move is clearly embedded in the larger geopolitics of the region and the manner in which regional alliances are marginalising Indian interests in the heartland of the region. With the United States seeking a quick exit from, and willing to let the Inter-Services Intelligence-sponsored Taliban to control Afghanistan (and China deeply embedded in the power play), the heartland of central Asia has rarely been as adverse to Indian interests since 1989, when the Soviet Union withdrew from Afghanistan. Kashmir could, in these circumstances, become even more vulnerable to external elements than it was in the 1990s.

•On top of it, the new camaraderie between U.S. President Donald Trump and Pakistan Prime Minister Imran Khan and the repeated ‘offer’ by Mr. Trump to meditate in Kashmir may have precipitated the decision, which would, however, have in any case taken months of preparation. A decision to cancel the Amarnath yatra and take hard decisions, with both domestic and international ramifications, suggests that the government believed that a settlement in Jammu and Kashmir and its ‘pacification’ was vital for India’s national security. This was, of course, a marked departure from recent history.

The Gupkar model

•Internally, for nearly 70 years, New Delhi managed Jammu and Kashmir (or more precisely the Kashmir Valley) through Srinagar’s Gupkar Road. Gupkar Road became a metaphor for the Centre’s approach, historically, towards Kashmir. New Delhi’s follies and its firmness; its cleverness and its calculations; its vacillating largesse and its ubiquitous Leviathan-like presence, were part of Gupkar’s landscape and legacy. Gupkar Road is the meandering gateway to the vistas of the Dal Lake, which runs from the desolate offices of the United Nations Military Observer Group in India and Pakistan at Sonwar to the fading charms of erstwhile royal palaces on the banks of the lake. It is here that security agencies are nested in close comfort with the political and business elite, and where interrogation centres have morphed into “haunted” guest houses.

•As a model, Gupkar Road reflected itself in a series of policies that had become predictable; a network of patronage and power that had been gamed by friends and adversaries alike. It sustained a politics of entitlement; be it politicians or newspaper editors or bureaucrats who were kept in good humour on the basis of some chimera-like national interest. The Gupkar model, it was obvious, had become redundant and counter-productive and had incentivised bad politics and the attendant rent seeking and other despicable forms of corruption.

•Now, shorn of its ideological fervour, what is seemingly being put in place is a new audacious plan beyond the constitutional interventions. As a start, the Modi plan is fundamentally about directly reaching out to the people without the mediation of either separatist groups or mainstream politicians.

Grass-root reach

•Reaching out to the people is seen as being best done by empowering local democracy to its fullest. In the past, the devolution of powers to the panchayats and urban local bodies carried little popular appeal with elected members of the Legislative Assembly, who saw this as directly eroding their authority and had a vested interest in centralising power. One of the key factors, it may be recalled, behind the Centre’s disconnection with the Mehbooba Mufti government was its continued unwillingness to hold elections to local bodies.

•Since the imposition of Governor’s (and now President’s) Rule, the State Administrative Council has acted with remarkable alacrity to devolve powers to panchayati raj institutions in the State. Implementation of important schemes such as the Mahatma Gandhi National Rural Employment Guarantee Act, the Pradhan Mantri Awas Yojana, the Mid-Day Meal scheme, Integrated Child Development Services and social forestry projects has been devolved to the panchayats.

•The monitoring and supervision of schools and health institutions has also been passed on to the panchayati raj institutions. In addition, panchayats shall also be conducting a quarterly social audit of works and programmes in their area.

•Almost in parallel is the Savonarola-like campaign against corruption where no one — powerful or influential — is ‘untouchable’ or beyond the scope of investigation by law enforcement agencies, but directed at the power elite of the State.

Graft crackdown

•Corruption is thus being addressed not just at the fringes; but the very core of a rotten system is now being targeted where a few families are seen to have usurped power and economic benefits — not just in Kashmir but in Jammu as well. Indeed, almost every popular survey in Jammu and Kashmir reveals that one of the leading causes of youth angst and alienation was nepotism and corruption among the ruling elite.

•This anti-corruption drive is accompanied by attempts to fast track development to create institutions of academic and extra-curricular excellence and to generate skilled employment in a manner that the youth are gainfully employed and weaned away from radical thought. This, of course, is easier said than done.

•In the interim, the new doctrine will have to persuade the majority of the people of Jammu and Kashmir that greater integration with India will provide them with more opportunities, provide more freedom and space, and strengthen their rights much more than the alternatives proposed by other mainstream parties or separatists.

•Will the Modi plan lead to greater harmony between New Delhi and Srinagar, bringing enduring peace to the body and the soul? If it does, it will have performed an extraordinary national service and resolved one of New Delhi’s greatest challenges. For the moment, however, we have to live with the uncertainty that is germane to all high-risk, almost adventurous undertakings.

📰 Jammu and Kashmir: an integration without integrity

More than forced homogenisation with India, Kashmir needs a moral disposition towards truth and honesty

•Yesterday the Ministry of Law and Justice issued a notification titled The Constitution (Application To Jammu And Kashmir) Order, 2019 overriding the Order of 1954, and in effect scrapping Article 370 of the Constitution. Nowhere in the world of constitutional-democracies can one see an executive government passing orders to amend the Constitution. This order lacks legality as well as moral legitimacy. I concur with the President of the Jammu & Kashmir Peoples Democratic Party (PDP), Mehbooba Mufti’s claim that the government’s decision is illegal, based on insincere politics and constitutional abuse.

•Let us backtrack to the political moves that have led to yesterday’s notification: On June 20, 2018, under Article 92 of the Constitution of J&K, the State was placed under Governor’s Rule after the Bharatiya Janata Party (BJP) withdrew support to its alliance partnership with the PDP. Six months later, in December 2018, Governor’s Rule got converted into President’s Rule (Article 356 of the Indian Constitution).

•Let us be clear about the implications of these tactical manoeuvres of carefully transferring power from a democratically elected Assembly, to Governor’s Rule and then President’s Rule. It implies that all the powers of the Government of the State are now vested in the Governor under the superintendence of Prime Minister Narendra Modi. Given these conditions of severe democratic deficit, the government wrote up an order scrapping Article 370, sent it to itself for “concurrence”, and had it signed by the President.

On concurrence

•Let us then turn to Article 370(3) which lays down the procedure to amend or repeal Article 370. It states that the President may by notification declare that the article shall cease to be operative provided that it is confirmed by the Constituent Assembly of the State before the President issues such notification. It says that only with the prior consent of the Constituent Assembly of J&K the presidential order will be valid. But the Constituent Assembly framed the Constitution of J&K and got dissolved. How then must we interpret Article 370(3) if the literal interpretation is not useful? By reading it in terms of its legislative history.

•N. Gopalaswami Ayyangar who introduced the provision in the Constituent Assembly of India on October 17, 1949 states: “We have also agreed that the will of the people through the instrument of the Constituent Assembly will determine the Constitution of the State as well as the sphere of Union jurisdiction over the State...the President may, on the recommendation of that Constituent Assembly, issue an Order that this Article [370] shall either cease to be operative, or shall be operative only subject to such exceptions and modifications as may be specified by him. But before he issued any order of that kind, the recommendation of that Constituent Assembly will be a condition precedent.”

A selective reading

•To make a complicated legal history short, there was an acknowledgment that the Constituent Assembly, as a representative of the people of J&K, had to give concurrence before a Presidential Order is passed. But how does the Home Minister Amit Shah read Article 370(3)? He has read down the words “Constituent Assembly” to mean “Legislative Assembly of the State”; having cleverly dissolved the Assembly and usurped its power, in effect it is the government that is giving solipsistic concurrence to itself. Such self-indulgent narcissism has led to short-circuiting the entire process in letter and spirit.

•The reason the Notification lacks moral legitimacy is because of the way BJP has read down ‘Constituent Assembly’ to include even ‘President’s Rule’. More jurisprudentially, one needs to ask this: what is ‘Constituent Assembly’? It is a body of representatives who are the embodiment of the ‘constituent power’ that is needed to co-constitute a nation-state into existence. So, at the core of constituent power is democratic consent. India derives its legitimacy from its Constitution, and the Indian Constitution in turn is legitimate because it is supported by a constituent power in the form of democratic consent. Where in Mr. Shah’s interpretation of the words ‘Constituent Assembly’ is there even an iota of acknowledgment of a constituent power?

•Article 370(2) clearly mentions that the concurrence of the State Government needed to be taken only before the Constituent Assembly was convened. There is no mention that the State Legislative Assembly will have these powers after the dissolution of the Constituent Assembly. To read it so is absurd. The Constituent Assembly as the embodiment of constituent power is what creates and authorises, gives birth and grants the power to the legislative assembly. There is no equivalence between a Constitutent Assembly and Legislative Assembly. If at all the words ‘constituent assembly’ in Article 370(3) have to be read down, it has to be done in such a way that its core meaning is saved. For example, it can be read down as meaning a ‘special majority’ of the State Legislative Assembly constituted by free and fair elections.

•The fact of the matter is that given the democratic deficit, the BJP knows well that legal manipulations are not enough to scrap Article 370. What it needs is the use of force, which is what it has been surreptitiously preparing for over weeks and months. The government has given Kashmiris two options: either assimilate into the mainstream, where mainstream is a code for Hindi, Hindu, Hindustan, or be banished, and evicted by force. That is the tragic state of affairs we have come down to in the name of national unity and integrity.

•Salman Rushdie parodies the word ‘integrity’ in Shalimar The Clown: “The key to understanding this position was the word ‘integral’ and its associated concepts... the Indian effort was to preserve the integrity of the nation. Integrity was a quality to be honoured and an attack on the integrity of the nation was an attack on its honour and was not to be tolerated... Kashmir was an integral part of India. An integer was a whole and India was an integer and fractions were illegal. Fractions caused fractures in the integer and were thus not integral... When truth and integrity conflicted it was integrity that was to be given precedence.” Mr. Shah conflates ‘integrity’ with ‘integration’. Integration may involve forced homogenisation but integrity is moral disposition towards truth and honesty.