J&K: PAGD Releases 'White Paper' on the Many Wrongs in Reading Down Article 370

J&K: PAGD Releases 'White Paper' on the Many Wrongs in Reading Down Article 370

The group of political parties has said that the prime minister and home minister were part of the misinformation campaign that followed the August 5, 2019 announcement.

New Delhi: The People’s Alliance for Gupkar Declaration (PAGD) has said in a “white paper” on the “assault on the autonomy of Jammu & Kashmir” that a canard was created about misgovernance in the erstwhile state to justify the reading down of Article 370 and J&K’s “dismembering and downgrading”.

The document, titled “The Betrayal”, has claimed that it was in “flagrant disregard of the pledges made, the essence of National Emblem, the letter and the spirit of the Constitution and violation of its basic structure, that the State of Jammu and Kashmir was in August, 2019 denuded of its special constitutional status”.

`Course correction needed, restore autonomy’

While giving a detailed account of why Jammu and Kashmir enjoyed a special status and how it was deprived of the same through “mistruths and untruths” and a “propaganda smokescreen”, the PAGD has demanded that the Government of India undertake a dispassionate appraisal of the August 2019 decision. Also, it has called upon the Centre to “urgently undertake an exercise of introspection and course correction, revoke all the decisions taken in August 2019 and restore the autonomous status of Jammu and Kashmir”.

“The least, the Government of India could do, is to grant real autonomy to the J&K state as envisioned by the Constituent Assembly of India and ratified by the Constituent Assembly of Jammu & Kashmir,” it has said.

Tracing the background in which Jammu and Kashmir was granted autonomy except in the matters conceded to the Union and the constitutional mechanism devised to guarantee its autonomy or special status, the white paper has, as per the preface to the document, made an endeavour to “contest, on the basis of legal-political arguments and reliable and convincing data, the mistruths on which the August 2019 unconstitutional and unethical decisions are marketed”.

J&K was only state to have negotiated terms of accession

It said “the State of Jammu and Kashmir was the only State amongst the princely States that negotiated terms of accession with the dominion of India.” The Constituent Assembly with complete consensus incorporated Article 370 in the Constitution to govern the relations between Jammu and Kashmir and the Union. “The constitutional provisions restricted jurisdiction of Parliament to legislate as regards Jammu and Kashmir to three subjects namely External Affairs, Defence and Communications. The State Legislature was to have power to legislate on all other matters.”

Also, it said, “any constitutional provision beyond these three subjects could be made applicable only with concurrence of Constituent Assembly of Jammu and Kashmir. Consequent to the Accession and Constitutional Framework of J&K with the Indian Union, the Constituent Assembly adopted a separate Constitution for Jammu and Kashmir.”

`State was promised limited or residuary sovereignty’

Stating that apart from Article 370, which is a self-contained code, Article 1 was made applicable to Jammu and Kashmir, the white paper recalled how the Delhi Agreement 1952 between the Union and the state government reaffirmed that while in case of all other states the residuary powers vested with the Centre, for Jammu and Kashmir the residuary powers would vest with the state. “The State was, thus, promised limited or residuary sovereignty,” it said.

The Delhi Agreement 1952, it said, also reaffirmed the constitutional position that the special status guaranteed to the state could not be interfered with, except with the concurrence of the Constituent Assembly of Jammu and Kashmir. Thereafter, the citizenship law was extended to the state and all other measures provided under the Agreement were taken. And Article 35A was incorporated to provide a protective umbrella to existing and future laws conferring special rights.

Gradual and arbitrary erosion of Article 370

However, the white paper pointed out that over the years, Article 370 was arbitrarily eroded and this encroached on the agreed autonomy of the state. “To illustrate, the President of India issued an order in July 1986 extending Article 249 of the Constitution empowering Parliament to legislate on state list through the resolution of Rajya Sabha. Centre’s own appointee Mr Jagmohan, the then Governor of J&K gave the concurrence to such an assault on State autonomy. Thus from a special status Jammu and Kashmir was eventually deprived off even those rights and powers which are provided to other states,” it said.

Such a gradual and arbitrary erosion of Article 370 has had implications on the political landscape and resulted in alienation, which became a fundamental reason for the political uncertainty in the state, the document said, adding that “the contraction of autonomy provided an opportunity to those who wanted to undermine the relationship of J&K state with the Union”.

Developments of 2018 were a “breach of the promise”

The white paper said when the president imposed presidential rule in Jammu and Kashmir in December 2018, it was the eighth such occasion in the state. With this, it said, the powers of Jammu and Kashmir Legislature were made exercisable by or under the authority of the Parliament. This also suspended operation of the first proviso to Article 3 of the Constitution that relates to the reference by the President to the Legislature of the State and the second proviso to the article 3 that makes consent of the Jammu and Kashmir State Legislature necessary before its area, boundary or name of the State is altered.

“The Presidential proclamation of 19th December 2018 thereby laid foundation for the constitutionally impermissible, division and downgrading of the State that was to happen a few months later,” it added.

`President’s August 5, 2019 order was in violation of letter and spirit of Constitution’

Then, it said, after the President’s Rule was on July 3, 2019, extended for a further period of six months, the President on August 5, 2019 passed The Constitution (Application to Jammu and Kashmir) Order 2019 C.O. 272 which superseded the Constitution (Application to Jammu and Kashmir) Order 1954 thereby making the Constitution of India applicable in its entirety to the State of Jammu and Kashmir.

This 2019 Order, the white paper said, was “in clear violation of the letter and spirit of the Constitution”. The purpose of adding Clause (4) to Article 367, the Interpretation clause of the Constitution, it said, was obviously “to obviate the requirement of `recommendation’ by the Jammu and Kashmir Constituent Assembly” under clause (3) of Article 370.

The same day, on August 5, the white paper said, Rajya Sabha passed the Jammu and Kashmir (Reorganisation) Bill, 2019. It said this Bill “in gross violation of the letter, spirit and mandate of the Constitution and the State Constitution, downgraded the State of Jammu and Kashmir and bifurcated it into two Union territories.”While giving a detailed account of why Jammu and Kashmir enjoyed a special status and how it was deprived of the same through “mistruths and untruths” and a “propaganda smokescreen”, the PAGD has demanded that the Government of India undertake a dispassionate appraisal of the August 2019 decision. Also, it has called upon the Centre to “urgently undertake an exercise of introspection and course correction, revoke all the decisions taken in August 2019 and restore the autonomous status of Jammu and Kashmir”.

“The least, the Government of India could do, is to grant real autonomy to the J&K state as envisioned by the Constituent Assembly of India and ratified by the Constituent Assembly of Jammu & Kashmir,” it has said.

Further, it said, the President on August 6, 2019 while making use of this “unconstitutionally acquired” power under The Constitution (Application to Jammu and Kashmir) Order of the previous day and on the recommendation of the Parliament declared that all the clauses of article 370 shall cease to be operative except the clause making all provisions of the Constitution applicable to the State of Jammu and Kashmir.

Thus, it said, the state of Jammu and Kashmir was “not only denuded of its special status and autonomy but downgraded and fragmented into two parts.”

J&K Reorganisation Bill was ultra vires the Constitution

The white paper said, “the Jammu and Kashmir Reorganisation Bill, 2019 downgrading and dividing the State into two Union Territories is without jurisdiction and ultra vires of the Constitution, in as much as Article 3 does not provided for or allow division of a State into Union Territories.”

The paper said “the failure to seek consent of the State Legislature before the Bill was introduced in the Parliament may be attempted to be explained, unconvincingly though, on the ground that in the wake of President’s rule the State Legislative Assembly was dissolved and that the Proclamation of 19th December 2018, by the President in exercise of powers under article 356 imposing President’s rule on the State of Jammu and Kashmir also suspended “so much of the first proviso to article 3 of the Constitution as relates to the reference by the President to the Legislature of the State and second proviso to that article” and therefore compliance with Proviso to article 3 was not required.”

However, it said, the president’s rule has inherent limitations as it is limited in time and scope and normally is to end within six months – by the time the democratically elected government is to take the reins and run affairs of the State. As such, the white paper said, “the constitutional functionaries therefore cannot take policy decisions for the State with far reaching consequences much less downgrading and dividing the State during the Presidential rule.”

`Centre weaved mistruths, untruths around decision to strip J&K of its special status’

The white paper said “the Central Government, fully conscious that August 2019 decisions stripping State of Jammu and Kashmir of its special constitutional status and downgrading it and dividing into Union Territories was constitutionally impermissible and morally un-condonable, weaved a number of mistruths, untruths and half- truths to justify and market the unconstitutional decisions.”

It said one of the mistruths was that Article 370 that embodied constitutional guarantees to the State was of a “temporary” nature and so it was not an impediment in changing the constitutional status of the State. The paper said the “argument is specious” because J&K was the only state to negotiate terms of its accession to the dominion of India and got this advantage because of its historical background and the events at the time of Partition.

It said the chain of events would indicate that the decision as regards grant of special status to the State of Jammu and Kashmir was negotiated and settled alongside the accession and it was agreed that the special status would be constitutionally guaranteed by incorporating a provision in the Constitution of India being discussed in the Constituent Assembly and also allowing the State to have its own Constitution, defining its relation with the Union.

The document added that “the people of J&K had opted to become a part of secular India not simply by virtue of the Instrument of Accession, which is the legal basis of the association of the state with India, but also because of those promises of building a progressive, pluralist, secular India in which the people of J&K were to have a very special status and the maximum degree of Autonomy within the Union.”

These these promises were reflected in Article 370 and contained in the Constitution of J&K itself, the document said. “There are constitutional obligations without which the Instrument of Accession itself is rendered meaningless,” it added.

However, to deny this historical fact, it said the BJP and its affiliates undermined the functionally the Union itself. “The August 2019 decisions are marketed by the Union Government on the plank that the articles 370 and 35A put some segments of society to disadvantage. The special status, it is argued, in particular discriminated against the West Pakistan Refugees (WPR) and denied them constitutional rights.”

To this end, the white paper argued that “the problem if any experienced by any segment of population can be addressed by employing the available legal device and not denuding 13 million people of the State of their identity and invaluable rights.”

`Article 370 did not impede upon progressive, welfare legislation’

It said another untruth that was propagated was that Article 370 stood in the way of progressive and welfare legislation. The assertion, the white paper said, is belied by the facts.

Jammu and Kashmir, it said, had been ahead of all other states in legislation protecting rights of children, women, small farmers, workmen and other weaker sections and insular groups. Further, it said, in every aspect of human activity and any segment of society, the state of Jammu and Kashmir was more progressive and had more effective laws and institutions than any other state.

The Jammu and Kashmir Big Estates Abolition Act 1950 brought an end to absentee landlordism and facilitated distribution of half a million acres of agricultural land under ‘land to tiller’ program without compensation to 7,50,000 small farmers and agricultural workers and the Jammu and Kashmir Agrarian Reforms Act 1976 provided a land to tiller program and further reduced the ceiling area of land holdings.

Citing other laws enacted by the State and the various Commissions it constituted, the white paper said, “the mistruths are cooked up and lies weaved to lay foundation of disinformation campaign that the State lagged behind in progressive and welfare legislation. The facts speak otherwise.”

 

`Articles 370, 35A facilitated uniform empowerment’

It added that another untruth around Article 370 causing disparity and administrative laxity was propagated whereas “Articles 35A and 370 by facilitating uniform empowerment of disempowered and deprived masses across the regions and communities promoted regional harmony and united the people.”

It cited renowned economist and civil rights activist Jean Dreze as saying, refuting the claim that as Jammu and Kashmir was a backward State article 370 was required to be removed, by saying, “because of Article370, Jammu and Kashmir has its own constitution and this constitution allowed distribution of land which the constitution of India would not have allowed. I think it played an important part in reducing poverty and in laying the foundation of a relatively egalitarian economy in rural areas”.

Propaganda blitz launched by supporters of Centre, J&K administration

The report added that “ever since the abrogation of Article 370 and 35A in August 2019, alongside the suppression of dissent and democratic functioning and partly to divert attention from that, the spokespersons and supporters of the government at the Centre and in the Union Territory of Jammu and Kashmir have launched a propaganda blitz.”

It said these groups have been trying to paint a picture of poor economic performance in the state prior to August 2019 and argue that steps initiated since have been transforming the region, advancing economic development and improving the well-being of the people.