The dust is still flying around on Article 370 and the Narendra Modi government’s actions in Jammu and Kashmir. During the Lok Sabha debate on the subject, others spoke of our serious doubts about the constitutionality of the draft Bill – Jammu and Kashmir Reorganisation Bill 2019 – and the resolution abolishing Article 370. The Modi government made its predictable counter-arguments. Since I am not a lawyer, I decided to leave the debate to the courts and confined myself, in the limited time available, to the dangerous consequences of the government’s actions – to tourism, to the economy, to national security and to India’s international standing.
But it has become clear in the course of the week that the public, which has largely applauded the outcome, has been willfully misled about the process – and that the Modi government has successfully elided the entire issue of its own legal sleight of hand to bring about its objectives. By focusing on its goal of ending “one country, two Constitutions, two flags” (for which it won broad support) the government has danced around its legislative tricks and chicanery in playing fast and loose with the Constitution and with the rule of law.
Basic facts about Article 370
A few basic facts: Article 370 was conceived as a temporary measure until the Constituent Assembly of Jammu and Kashmir was formed, and it was left to the Constituent Assembly of J&K to determine the constitutional relationship between India and the state. It is because the primacy in such matters lies with the people of J&K, that Article 370 (3) states that Article 370 can only cease to exist through a Presidential order after obtaining the recommendation of the Constituent Assembly of J&K to end the operation of the article.
The Constituent Assembly of J&K enacted the Constitution of J&K, whose Article 147(c) places a bar on the legislative assembly from affecting the constitutional relationship with India, as provided in the Constitution of India. So, they accepted Article 370 as the permanent constitutional relationship between the Union and the state, an interpretation upheld in successive Supreme Court judgments.
The permission of the people of J&K through an elected body is a condition precedent to interfere with its special status under Article 370. Clause 3 of Article 370 makes it clear that you cannot amend the article without the recommendation of the Constituent Assembly.
Also read: Article 370 has put us in a dilemma: Should we choose Constitution’s letter or its spirit?
How Modi govt bypassed legalities
The Modi government has tried to be clever, by amending Article 367 to indirectly amend Article 370, saying that the Constituent Assembly shall mean the legislative assembly. What was the purpose of this amendment? Because it can then argue that due to the operation of President’s rule in the state, the role of the legislative assembly has devolved upon Parliament in New Delhi – which can give the recommendation instead of the legislative assembly, because the assembly has been dissolved.
However, the government has completely ignored the well-established position in law that whatever you cannot do directly, you cannot achieve indirectly. You do not have the right to amend Article 370 without obtaining the consent of the people; you cannot indirectly amend it in the absence of their consent.
The Supreme Court has recognised that while something can be formally legal, the substance of it can be a fraud on the Constitution. It is entirely possible to argue from this set of facts that this entire exercise is a fraud on the Constitution of India and a betrayal of the promise our founders made to the people of J&K.
There is another important point to be noted here. The Modi government also claims that the concurrence of the government of the state of Jammu and Kashmir has been received. However, Jammu and Kashmir has been under President’s rule for many months now. So, the consent of the state is that of the governor, who is in fact the appointee and representative of the Centre. In other words, the Centre has taken its own consent to carry out its agenda. The consent of Kashmiris is irrelevant to the government.
It is well known that President’s rule is a temporary mechanism, meant for situations in which there is a breakdown of constitutional machinery and meant to cover exigencies that may arise during the period before fresh elections are held and a new assembly constituted. Yet, permanent measures are now being taken under the cover of President’s rule – in the absence of a state government and a legislative assembly, New Delhi is using its powers to split the state and downgrade it into a union territory. It has completely ignored the letter and spirit of Article 3, which requires the government to consult the state assembly on such matters. Again, the claim is that since Parliament is, for all practical purposes, “the legislature”, the legislature is being consulted. But the spirit of Article 3 was clearly intended to involve consultation with the elected legislature of J&K, who represent the people of that state. The government might yet be able to persuade the Supreme Court that they have adhered to the letter of the law, but its action has betrayed the spirit of the Constitution.
Also read: Art 370 killed because Hindu Jammu, Buddhist Ladakh & Muslim Kashmir only benefitted Pakistan
An ominous move
In short, the Modi government has changed the basic constitutional relationship of the people of Jammu and Kashmir to the Republic of India without consulting them or their elected representatives. This blithe disregard for Article 370(3) and Article 3 is a breathtaking betrayal of our democracy and nothing short of legislative authoritarianism.
By claiming that the concurrence of the state of Jammu and Kashmir has been obtained, when it is under President’s rule; by translating “State” to mean the Governor they themselves have appointed; and by interpreting “legislature” to mean Parliament in New Delhi rather than the body elected to represent the views of the people of Jammu and Kashmir, our government has acted in utter contempt of the people of the state and of the value of democratic decency that is meant to animate our political culture. And the general public, in careless disregard of all this, has applauded our “bold” and “decisive” Prime Minister Modi for his actions. The precedent it sets for our democracy is ominous and worrying. Let no one say we have not been warned.
The author is a Member of Parliament for Thiruvananthapuram and former MoS for External Affairs and HRD. He served the UN as an administrator and peacekeeper for three decades. He studied History at St. Stephen’s College, Delhi University and International Relations at Tufts University. Tharoor has authored 18 books, both fiction and non-fiction; his most recent book is The Paradoxical Prime Minister. Follow him on Twitter @ShashiTharoor. Views are personal.
What do you mean by MODI GOVERNMENT….say your government….as a citizen of this country…..it reflects your hypocrisy …..don’t preach law ….legality …. constitution…..this Chaos is created by your party……you could have written just a para on this issue….better you focus on writing a book on bankruptcy and downfall of Congress and join BJP,this party needs writers of your calliber…don’t best your time and brain on showing loyalty to this damaged regime of Congress party
Whole INDIA is happy with MODI. 90% people have celebrated removal of article 370
The real authoritarianism was “when Nehru didn’t allow state funeral for the ex-president Rajinder Prasad”. It was when “Indira Gandhi manipulated the defeat of the official Congress party nominee Dr Sanjiva Reddy for Presidentship”. It was when ” Prime Minister Manmohan used to touch the feet of Rahul and Sonia”. I’m not touching “emergency”. Modi followed the complete democratic process of passing the Abrogation bill is Parliament and it was failure of your party that, not to speak of other opposition, even your own party persons voted for Modi.
Mr.tharroor must understand that Kashmir muslims are misguided by pak muslims &their Punjabi Muslim military to creat turmoil in lndia through Kashmir youngsters by their militants vim military madrassas near loc,wherePak lsl& military &jihadi training is given to young pok kashmiri &their blood relationship in j&k., that’s costing innocent lives of somany civilian &lndian army have to counter these atrocious actions of Pak to export.terror.to even Western countries through osamas still exists.pak don’t want Peace & that’s evident for last 70yrs as Congress failed to save somany civilians in the country sticking on to old 370 articles,unable to solve Kashmir problem. unless Pak.is silenced Kashmir problem. can’t be solved.
Congress is like Bheeshma, who knows Krishna is Paramatma , but he can’t stop taking Duryodhana’s side. This whole article is misleading.
Ab kay ko rote ho…move on…
I think somewhere along the line , we , perhaps , are not interested in appreciating the requirement of 370 at that juncture of post independence in relation to what ‘ Kashmir was ‘ and it’s identity in relation to India and Pakistan including the treaty signed by the then PM of India and Maharaja Hari Singh — we have come a long way since then and successive govts in Kashmir have failed to protect the said identity of Kashmir ( it’s exclusiveness ) including paving a way for it’s merger with the union of India . Overnight moves in total secrecy , clamping curfews , arresting leaders , transferring prisoners and putting the Armed Forces on hight alert with a large scale deployment of PMF have only created serious doubts amongst many and has annoyed our ‘ lovely neighbour ‘ tremendously resulting in a massive build up by him also so as to internationalize the issue to it’s advantage . Bold moves do involve risk but was it worth it , the coming days will tell us . As far as Legality goes , Shashi is right when he says that let the Honourable Supreme Court decide — and yes please stop hounding people as far as their personal lives are concerned —- I think the investigating / law enforcing agencies are doing their job fairly well as regards the death of the said high profile politician’s wife’s death . Incidentally , I do not know any politician of any party including not having met anyone / not inclined to meet , eithier .
A very bold step. For a long time, the J&K remained in a state of turmoil. The people there were always insecure. The relationship with the neighbors boiling. Doesn’t the people of J&K deserve peace. India for a long time used one method and was not effective for decades. Now another Government think of another method; time alone can say if this method works. However, there are legal and constitutional impropriety involved; those aspects need to be overcome.
I guess the learned man Mr. Shashi Tharoor is not understanding what temporary provision means.
Any legislation passed in parliament by tharoor definition is parliamentary authoritarianism or majoritarian. That is exactly what democracy is about.use English carefully than bombastically is the advice to the literate fools.
Please read Article 147 of J&K constitution. The Article 147(c) says that J&K legislative assembly cannot make amendment to J&K constitution which affects J&K relation with Indian Constitution.
So this article is to safeguard interests of Indian state not the opposite as suggested by the author. It prevents J&K assembly to ends its relationship with India on their own, but doesn’t curtails the power of Indian state to change its relationship with J&K.
Now Mr. Shashi Tharoor,
How looong we Indians (if you consider yourself “ONE”) should tolerate the local Political Leadership sitting on our heads and trying to piss in our Ears????
Print should be banned in India..are u with Pakistan on Kashmir or India… take a stand today n prove ur an Indian orgn… understand ur issues with PM, but Mr Shekar Gupta ur journalism has stooped to such a level that now when most opposition too supported the Govt on article 370 , ur still writing this this shit..u must be arrested to check if ur orgn is funded by any isi affiliated organisations..
The author is indeed a very learned politician. The argument that people of the state viz. J&K needed to be consulted is required to be interpreted in a democratic fashion. The people of J&K have been electing their representatives ever since the first general election in India. Under the fig leaf of ‘370’ the state leadership, however, has been robbing a large section of the common citizens residing in J&K of the very basic provisions of the constitution of India of which J&K is an integral part; pray Why? They have always been betraying separatist tendencies, some day some one had to call this bluff! Now that it has been done, the reasons advanced by the home minister in Lok Sabha are required to be addressed, if diplomat in Mr. Shashi Tharoor is still wanting to defend why ‘370’ was not abrogated by previous congress governments. The fact is, it was a much required action in the interest of entire nation and it must be welcomed. Congress party should actually say SORRY to large number of citizens of J&K, and then accept the abrogation whole heartedly as all nationalists are doing. Thank You!
Sir, today very few ppl are seen standing with the right.. thanku for being a voice of sanity in ghis growing madness..i have 1 question vis a vis the kashmir issue.. and that is why is the supreme court not taking this issue up.. why are the lives of so many people so cheap.. why is no protest happening for them.. why are they alone in this struggle..
Oh dear. Another example of the vaunted defeatist Indian mentality, cultured in the historic laboratory of endless, past defeats. Grow some spine Mr Tharoor. When it is time to mend or even break archaic laws break them. The future belongs to the bold, not to the furtive.
Before Tharoor decides the call the abolition of 370 a constitutional fraud, he may well review the frauds committed by British in league with Gandhi, Nehru and Congress to divide India. Let him also not forget the way Indira Gandhi abolished the princely titles and privileges. Was that in compliance with either the letter or the spirit to the erstwhile rulers? The professional achievements of Tharoor aside, let him be reminded of the Indian sentiment – Existence of Pakistan, it’s occupation of POK and all arguments in support are a constant reminder of the British atrocities committed on people of India in league with Gandhi – Nehru and subsequent Gandhi delinquents. It has been aptly articulated by Tharoor on different fora. The resolution of this issue will come with TOTAL integration of India. Rest is all – ‘bakchodi’.
With this view he has removed himself from the possibility of being considered as Prime Minister of India.
Sad that he has fallen for loyalty to the party instead of standing by an united country.
All the anthe bhakths are here. Desperate to justify fekuchand modi
Congress had 70 years to solve this problem they created, instead of bringing development and jobs to the region Shashi is talking politics.
This guy who is on bail for murdering his partner forgot to mention which parliament passed 35A . He will try to justify that I and only I is correct and all other Indians are stupid?
Ohh boy you guys in the Congress are so intent on pissing on yourselves!!!! Go on show the world how stupid you are Shashi!!!
As you said “Since I am not a lawyer, I decided to leave the debate to the courts and confined myself” stop writing about unconstitutionality and inlegality of Modi’s action.
The country is very much in need of eliminating terrorism. Only way that will happen is by changing the demography. Removing or eliminating 370 will get there, not today but for the next generation.
Shashi, This is exactly what Pakistan is also saying. Did you guys speak to each before writing this? The more Congress speak the language of Pakistan the more your party get decimated. Keep doing good work for Congress mukht Bharat.
Constitutional consultation with people of Kashmir is not relevant as most of the Hindus have been killed and over the years, Muslims have been infiltrated into Kashmir, thanks to the past Governments. Most important aspect is that Kashmir was anjintegral part of Hindu land India rather it includes not only PoK but even Pakistan itself.
Great. How did then Congress government bifurcate Andhra Pradesh unilaterally without consent of the Andhra Pradesh legislature? What happened to these arguments then?
Shashi, please stick to k!lling wifes. Let big boys play their game.
LOL!
Agree
If Modi government is authoritarian, Shashi Tharoor should had been arrested and put in Tihar Jail for murdering Sunanda Pushkar. Congress current stand on 370 would reduce it’s MP tally to 4 in 2024. In coming state Elections , Congress will be severally punished by People.
Just imagine how tragic it would have been if Congress had won elections (shudder) and Tharoor became some Minister. How lucky the people of India!
Congi traitor plan would be to continue bleed India. The way Congi traitors have been talking on this issue, they won’t win 10 seats next time.