By Meghnad S| Aug 5, 2019
Narendra Modi’s government has used its historical mandate to spring the first big surprise of this term and it was targeted at the state of Jammu & Kashmir: a sensitive state where surprises like these might lead to ugly consequences. On Monday, the government scrapped Article 370 of the Constitution, partially, through a President’s order.
But if you’ve been following the news and Parliament proceedings since Monday morning—ever since the news first broke that something was brewing—I’m quite certain you’re confused about how this happened so fast and furiously.
Well, in that case, read on.
It’s important, for this particular story, to set some context. Jammu & Kashmir has been in the news in the past few days for three main reasons:
(1) The Jammu & Kashmir (J&K) administration issued a security advisory on Friday for Amarnath Yatra pilgrims and advised them to curtail the Yatra. The Governor, Satya Pal Malik, said there is a terror threat in the Kashmir Valley, which is why this advisory is being issued.
(2) On Sunday at midnight, Section 144 was imposed on the state and the internet was snapped off. Mehbooba Mufti and Omar Abdullah, two leaders from J&K and former chief ministers, were simultaneously put under house arrest.
(3) What’s more, there has been massive troop deployment in the Kashmir valley in the past week, signalling that something major was about to go down.
Which essentially means, the central government created a communication blackhole in the state before revealing its next move. On Monday morning, this sequence of events took a dramatic turn when Home Minister Amit Shah gave a statement in the Rajya Sabha announcing the scrapping of Article 370 of the Constitution.
Before I get into how this was done, allow me to quickly explain what Article 370 is. Simply put, it gives special status to the state of Jammu & Kashmir. What this means is the Indian Constitution does not apply to the state of J&K and permits the state to draft its own Constitution. Article 370 restricts any laws passed by the Indian Parliament from being applied in J&K unless the J&K state government itself wants those laws to be applied in the state.
Essentially, this ensured that J&K was both a part of India but also a state that has a separate identity reflected through its separate laws.
Fun fact: This special status has also been given to 10 other states like Arunachal Pradesh, Assam, Himachal Pradesh, Manipur, Meghalaya, Mizoram, Nagaland, Sikkim, Tripura and Uttarakhand under other articles of the Constitution. Just throwing it out there.
Unfurling the madness
Now hold on to your hats because I’m about to explain how this 370 scrapping was done. First, an order was passed on Monday, August 5, by the President of India called “Constitution (Application to Jammu and Kashmir) Order, 2019” which scraps 370 by using 370 itself. Yep. You heard that right, they used a subclause within 370 to scrap the clause!
Particularly, 370(3). Here is what Article 370 sub-clause (3) says (emphasis added):
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 the words “Constituent Assembly” here. This refers to the J&K Constituent Assembly, which was dissolved in 1957. Since this particular body doesn’t exist, one interpretation of Article 370 was that this law is now permanent. I mean, if there is nobody to give a recommendation, then the law can’t be removed only. Right? Right?!?
“WRONG!” said the Modi government.
This government found a way around this. Through the President’s order I mentioned earlier, they replaced the words “Constituent Assembly” with the J&K Legislative Assembly—meaning the elected state Assembly. Now here’s where things get … um … interesting.
J&K has been under President’s rule from June 2018 till date. Which effectively gives all powers of the State Assembly to the central government, through the President. Which also means that 370 sub-section (3) is now effectively talking about the President!
Since there is no state government, the central government and Parliament has total power to remove the Article. So yeah… #370Gone #370Scrapped #ConstitutionalTrolling #ModiHaiTohMumkinHai.
Fun fact: The first time President’s rule was imposed in Kashmir was 33 years ago in 1986.
There is another side-effect of this action, which actually might be the real motive of the whole thing. The scrapping of Article 370 also effectively means that Article 35(A) will not apply to J&K. Which means now any Indian from outside the state can buy and sell property in Jammu & Kashmir. Earlier, this was only allowed for Jammu & Kashmir’s permanent residents.
Meanwhile, in Parliament…
In the Rajya Sabha, there was a resolution which was also tabled to approve the presidential order. Other than this, two other Bills were introduced.
The first was on J&K Reservations which provides reservation in government jobs to persons belonging to the Pahari community. The second was on J&K re-organisation which says Jammu and Kashmir will be a Union Territory with a legislature, while Ladakh will be a Union Territory without a legislature. The second one is the Bill that we should pay attention to.
Members of Parliament protested about how the Reorganisation Bill was not circulated to members, is not available publicly and until this morning, was not even a part of the list of business of the Rajya Sabha. For all intents and purposes, it appeared out of nowhere and is being discussed in Rajya Sabha as I write this piece. All of these—the resolution and two Bills—were clubbed together and given time by the Chairman of the Rajya Sabha to be discussed together in four hours. He also said that any issue about the situation in the state can be discussed during the allotted time. The time given for filing amendments was till 12.30 pm, which means 1.5 hours from the commencement of the day at 11 am.
The Reorganisation Bill is now publicly available and I’d ask you to just click on this. Just to see how long it is.
That’s 57 pages of legal jargon which the MPs were supposed to understand in under 1.5 hours so that they can file amendments and discuss it in Parliament in the time allotted before voting, which is four hours. This is a Bill that is creating a whole new Union Territory, that too a territory which has immense historical baggage and geopolitical consequences. But the government, in all its wisdom, wants to encourage the skill of … speed reading?
Anyway, as of now, it seems like all of these—the resolution and two Bills—will sail through Parliament since a bunch of regional parties have emphatically expressed their support, namely: the AAP, TDP, BJD, BSP, AIADMK, TRS, YSRCP and AGP.
All three items—the resolution, the Reservation Bill and the Reorganisation Bill—were cleared by Rajya Sabha on Monday evening.
A law which fundamentally alters the way the people of Kashmir will live was changed by the Modi government while communication in the state was cut off, military presence was increased and leaders were under house arrest. This was done through a legally dubious Presidential order, a thick Bill and an additional resolution that was not circulated to MPs till the last moment.
Now all this will go to the Lok Sabha, where passage will be easy enough and maybe then the final word will be that of the Supreme Court. Article 370 has been dismantled and the trajectory of the people of J&K has fundamentally changed. The cat is out of the bag and there’s no going back.
For a video recap of what went down, check out our cheatsheet.