Political and legal nuances of Modi’s statesmanship: The Kashmir diary

Reading time: 4-5 minutes.

By 1989 came the armed insurgency and Pakistan got involved. Its Kashmiri agents ensured that the Hizbul Mujahideen stole the struggle for ‘azadi’ from the secular JKLF so Jihadist Islam began to infuse a political movement.

Soon, Kashmir’s Pandits were ethnically cleansed from the Valley and in the streets of Srinagar appeared bearded young men who marched into liquor shops and forcibly closed them down by smashing bottles of liquor on the pavements.

They walked into hotels and ordered bars shut. Cinemas were forcibly closed and women who did not veil their faces risked having acid thrown at them. A new ‘identity’ was imposed on Kashmir. Tourists continued to come but the tranquility of the old Kashmir was gone.

Can it return? We are not sure. But, if anything can help bring it back, it is probably the abrogation of Article 370. With this hope the BJP government under the leadership of Modi treaded the constitutional path wherein they successfully abrogated the most heinous dent on the paradise land of Bharat mata.

The government of India, in order to address and terminate this hurdle for once and all, introduced a Presidential Order in Parliament now known as ‘The Constitution (Application to Jammu and Kashmir) Order 2019’ to supersede the previous Presidential Order of 1954, to the extent mentioned in the current order, exercising the power conferred under Article 370.

It must be duly noted that it has been erroneously contended by many legal scholars opposing the government’s move that Article 370 has been amended by way of a Presidential Order. It is important to emphasise that, that is not the case at all.

Article 370 has neither been modified nor repealed. What has been done is that a Presidential Order issued under Article 370 in the year 1954 has now been superseded and replaced by another Presidential Order of 2019. So, for those who have had been categorising this inevitable venture as a policy of unabashed majoritarianism, let us tell you, it’s actually not.

All those who are incessantly categorising this noble move as a dent on the Constitutional spirit are the same hypocrites who kept themselves mum during the swiftest forced exodus of a minority community- the Kashmiri Pandits of the region in 1990s.

This is instead a befitting reply to separatists and self-loathed local leaders to say the least. Their hue and cry can also be subsided if we listen to the speech delivered by the current Ladakh MP, Tamyang Tsering Namgyal and their demands that are much more tilted towards better governance, economic supplies, cultural connectivity and better education in and around the region.

With the issuance of Presidential order, the valley will not only observe stabilisers in their livelihood and lifestyle but will also take pride in equal treatment as other Indians do. Progressive Indian legislations will be implemented without making any distinction based on region.

This will in no way tarnish the image of their identity but will establish India as a nation celebrating cultural variants together, a land of diversity as we cherish. With this, the dream of millions of Indians along with the dream of Ambedkar, Patel and Shyama Prasad Mookerjee has come true.

Those who have all along vehemently defended the patently questionable use of the President’s powers under Article 370 in 1954 to insert an altogether new provision, namely Article 35A, in the Constitution without following constitutional due process under Article 368, are now found questioning the use of the very same power by the President to extend and apply the Indian Constitution to the State.

As for the legality of amending Article 367 through a Presidential Order under Article 370, the Government may have been inspired by the ruling of the Supreme Court in 1961 in Puranlal Lakhanpal v. The President of India.

Therein, it was held by a Constitution Bench that the power of the President under Article 370(1)(d) can even be extended to the insertion of an altogether new provision in the Indian Constitution in relation to the State of Jammu and Kashmir.

This decision was rendered in the backdrop of a challenge to Article 35A on the ground that the President could not have inserted Article 35A through powers under Article 370 since it was in violation of the procedure for Constitutional amendment prescribed in Article 368.

Since the Supreme Court upheld the validity of Article 35A by enlarging the scope of powers of the President under Article 370(1)(d), one suspects that the Government too can defend the amendment to Articles 367 and 370 by placing reliance on the very same judgment.

In other words, if the opponents of the current Presidential Orders wish to challenge the constitutionality of the amendment to Articles 367 and 370 on grounds of violation of Article 368, they cannot do so without conceding that even Article 35A was introduced in 1954 in violation of Article 368.

It is to be noted that Amit Shah, while coming up with the proposal of abrogating Article 370, also laid emphasis upon Article 363. As per article 363, neither the Supreme Court nor any other court shall have jurisdiction in any dispute arising out of any provision of a treaty, agreement, etc.

So, the role of the apex court in cases similar to them would be mere advisory in nature. In fact , a combined reading of Articles 363 and 143 would make it clear that any dispute which falls within the scope of Article 363, falls within the exclusive jurisdiction of the President, and the Supreme Court may at best perform an advisory role when such advice is sought by the President under Article 143.

So, all those laymen and journalists who have had been continuously augmenting and speaking against the deliberate decision of Modi government must look into what’s correct and plausible in law before laying themselves to be mocked by not only votaries of law of the land but by all those who think and accept this to be an important project ventured much later.

The Modi government has corrected a political mistake done by Nehru way back. It is just a legal progression against the political will keeping the needs and concerns of the region intact. Kashmir is now an integral part of India and it was a step towards strengthening the nation’s unity and integrity. 

-This article is brought to you in collaboration with Vishal Kumar and Aditi Sinha from Faculty of Law, University of Delhi. 

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