Rape of Article 370- PART I

Rape of Article 370-  PART I

To empower New Delhi with collection of taxes on goods and services “with the concurrence of the Government of the State of Jammu and Kashmir” is to surrender the exclusive powers enjoyed by the State to the Centre

THE Constitution (101st Amendment) Act, 2016, received the President’s assent on September 8, 2016. Its 20 sections made elaborate provisions on the Goods and Services Tax (GST), amended a host of provisions of the Constitution and established a Goods and Services Tax Council. It did not apply to the State of Jammu and Kashmir. The Act had been under discussion for long. Kashmir did not lag behind. The subject has been debated since at least 2013. The sole issue was whether to acquiesce in yet another unconstitutional Order by the President under Article 370 of the Constitution or make a State law bringing the tax structure in line with the tax system all over India.

The Bharatiya Janata Party (BJP) government at the Centre wanted to impose the law by a Central fiat in collusion with the ever-compliant People’s Democratic Party (PDP) in coalition with the BJP led by Mehbooba Mufti. The basic issue was Kashmir’s autonomy.

It was not only the opposition parties, the National Conference (N.C.) and the State Congress, that opposed the Centre’s plans. So did the Kashmir Traders and Manufacturers Federation (KTMF), the Kashmir Economic Alliance and the Kashmir Traders Federation. On July 1, they joined hands to observe a shutdown. The police detained scores of business leaders from a sit-down at Lal Chowk, Srinagar’s business hub. So much for civil liberties in Kashmir. The Centre had fixed June 30 as the deadline for the GST rollout. Finance Minister Haseeb Drabu, the architect of the coalition in talks with the Rashtriya Swayamsewak Sangh (RSS)-BJP pointsman Ram Madhav, was in a frenzy in view of the public opinion in Kashmir. The BJP had given an ultimatum—not later than July 6. By now the BJP had had the full measure of Drabu. On April 21 he flew to Jammu to present himself at the BJP’s office at Trikuta Nagar and received a rebuff on coalition issues. He attended the midnight launch of the GST in the Central Hall of Parliament.

But since public opinion had to be placated, motions of consultation had to be gone through with an all-party consultative group and a special session of the State Legislature from July 6-8. Drabu even attended a meeting of the GST Council in New Delhi besides meeting Union Finance Minister Arun Jaitley. He assured all that the Assembly would enact the law by July 6. A charade was enacted. The writer acknowledges here his debt to the excellent reportage in the Srinagar daily Greater Kashmirfrom which this resume is drawn.

Assembly resolution

The Resolution moved in the Assembly on July 4 read: “This House resolves that the Government of Jammu and Kashmir may give consent to the adoption of GST regime by application of relevant amendments made to the Constitution of India in a modified form to safeguard the existing constitutional position of J&K in the Union of India and the legislative powers under the Constitution of J&K.” It was passed on July 5.

On July 6, before the Assembly could vote on the government’s Bill, the President made the Order under Article 370. It had been prepared days earlier. Six pages long, it is the most elaborate Order made under Article 370 since 1954. On July 7, the Governor, N.N. Vohra, accorded his assent to the Jammu and Kashmir Goods and Services Tax Act, 2017, soon after it was passed by the Assembly and the Legislative Council. But Drabu did not inform the Assembly about the Order, as M.Y. Tarigami of the Communist Party of India (Marxist) pointed out before the Bill was put to vote in the Assembly.

An important point was made by a senior member of the N.C., Devender Singh Rana, on July 4. He proposed two models, the European Union (E.U.) model and the Quebec model, to provide an alternative GST framework for Jammu and Kashmir, which would protect the State’s special status. He said: “The solution to the issue is pending in the government files since 2013. A Committee constituted by the [Omar Abdullah] government that year had recommended implementation of GST regime similar to the E.U. model. We can also have the Quebec model [based on] the agreement between the Government of Canada and the Government of Quebec.”

The chair of that Committee was the Finance Member in the government, Abdul Rahim Rather, an able lawyer who is also skilled in matters of finance. On July 2 he said that the State was “constitutionally competent” to enact its own law on the GST. “We are not asking anything outside the Constitution.”

He reminded the government of its October 14, 2016, Cabinet decision in which the PDP-BJP had, according to him, empowered the Finance Department to formulate and discuss with New Delhi and the GST Council the modalities of extending the law to the State while keeping in view that Jammu and Kashmir’s special constitutional power to tax remained intact. The Cabinet had then also decided to frame its own legislation in consultation with the Department, the Union Finance Ministry and legal experts. “What have they done since then? Did they talk to anybody or consult the Union Finance Ministry or legal experts… they haven’t done anything till date.” Drabu told the media that the government was likely to implement the GST from July 6. “What for are they holding the Assembly session now when they have already decided to implement the GST from July 6?” Rather asked.

‘Surrender of exclusive powers’

Rebutting the assertion that the GST would not impact the State’s special position, Rather said that under the new tax regime New Delhi would be empowered to collect the sales tax though the GST, which was otherwise within the domain of the Jammu and Kashmir government. “It will mean the surrender of exclusive powers enjoyed by Jammu and Kashmir to the Centre.” According to him, when Drabu became the member of the GST empowered committee, he had, on the June 4, 2015, meeting of the committee, said that the PDP-BJP government would go by the stand taken by him [Rather] on the GST.

“My stand was that we should have our own law. Today he [Drabu] is saying that it isn’t possible. Then what is possible…. They are not even talking about that as well.” To a question, Rather said if the Government of India had to listen to the BJP only, which is talking about implementation of the GST in Jammu and Kashmir in the present form, then, it was “unfortunate”. “We are Indian like them. We have to find a solution.”

The obstacle was the Centre’s arrogant and ideologically driven anti-Kashmir attitude which Drabu faithfully accepted. Drabu said on July 5 that his government did not accept the Report of that committee. It was headed by the then Advocate General M.I. Qadri. It proposed a tax regime similar to the E.U. model as an alternative to the GST.

But Drabu’s defence of the Bill in the Assembly was a giveaway. “I think we have been using it [Article 370] as an obstruction,” he said on July 5. It is no mere coincidence that this is precisely the BJP’s line on Article 370. Significantly, he added: “J&K has acceded to India and India has not acceded to Kashmir” and “out of 97 entries in the Union List 94 are applicable to J&K”, implying that any further additions would not matter. In the same spirit of surrender, he said on July 7 citing Orders of 1979 and 1989: “Now, what residuary powers are you talking of?” Why then did he himself flaunt Section 5 of the State’s Constitution as a guarantee of residuary powers?

Since 1954, abuse of Article 370 by the Centre in collusion with Chief Ministers elected through rigged elections has become the norm. A stop had to be put to that destructive process. Kashmiri opinion is far more alert and assertive than ever before.

Inconsistently enough, Drabu claimed, in the same breath, that the President’s Order of July 6 protected Article 370. Here comes this masterpiece of sheer deceit: “If any violation takes place on [sic] Section 5 of the Constitution of J&K on the State’s special position, I will not come back to this House.” Section 5 is a residuary power. Once the bulk is chipped away, as he himself admitted, what remained? Ninety-four of the 97 entries (of topics of legislation) in the Central List have been applied to Kashmir. On the irrelevance of Section 5, more later.

Drabu was performing to a score set in New Delhi. On July 1 the Minister of State in the Prime Minister’s Office, Jitendra Singh of the Jammu agitation fame, declared in Jammu that “the State government has no option but to implement the GST in J&K, and I assure you that it will be implemented in the State within one week. Why any special and separate blueprint for J&K regarding GST and why should there be any autonomy? Jammu and Kashmir is as much part of India as any other State of the country, like Punjab, Haryana or any other State.”

Jaitley had warned in May of “a scenario where Jammu will want to come into the GST regime while Kashmir will not”. This logic can be extended to other issues and to a breakup of Jammu and Kashmir. That was not the only threat. The PDP was warned of a breakup of the coalition if it did not play ball on the GST. That would leave Mehbooba, Drabu & Co. unprotected to the tender mercies of the people who hate them.

 

S.P. Mookerjee’s plans fulfilled

However, Jaitley made a highly significant statement on July 6 which refutes Drabu’s claim that he has ensured that Article 370 is protected. Both cannot be right. The record shows that Jaitley is very right in his claims, and it exposes Drabu’s falsehoods. Here is that statement: “Jammu & Kashmir becoming a part of GST system was politicallysignificant, as it signalled integration of the State with the rest of the country.” Jaitley said the GST was the culmination of a process where Syama Prasad Mookerjee had spoken about complete integration of Jammu and Kashmir with India. “That time, Mookerjee had started a campaign for complete integration of J&K in India. Another big move in this direction started yesterday when J&K Assembly passed a resolution to adopt GST. It has political significance” (The Times of India, July 7).

The text of the President’s Order under Article 370 proves Jaitley right and Drabu wrong. Consider the background. The Delhi Agreement of 1952 did not settle the issue of Jammu and Kashmir’s financial integration with the Union. Nehru’s Note of July 20, 1952, recording the discussions with Kashmir’s delegation led by Sheikh Muhammad Abdullah, said: “The principle of financial integration was agreed to. The details would have to be worked out.” Sheikh Saheb resisted it. Nehru himself in an earlier Note of July 3, setting out his plans, conceded that, “It does not necessarily follow that the integration should be exactly of the kind we have got with other States.” Customs revenue was “the main source of income from Kashmir and if we take it, the whole State finances will collapse”.

In his statement to Kashmir’s Constituent Assembly on August 11, 1952, Sheikh Abdullah also said that “a detailed and objective examination of this subject would be necessary”. It is significant that among the 10 topics he listed, the very first was retention of the State’s “residuary powers”; that is, all powers which were not ceded to the Centre.

Mookerjee, who set up the Jana Sangh in 1951, launched an agitation in 1952 for the State’s full integration. Nehru secured his plans by dismissing Sheikh Abdullah from office as Premier of Jammu and Kashmir on August 9, 1953, and imprisoning him for 11 years. On May 14, 1954, came the “Major Order” under Article 370 on the federal setup. All the 47 Orders made subsequently are amendments to this Order.

Nehru succeeded in his designs. On November 27, 1963, he told the Lok Sabha that the State was “fully integrated” thanks to the “gradual erosion of Article 370”. On December 4, 1963, Home Minister G.L. Nanda said Article 370 was “neither a wall nor a mountain but it is a tunnel. It is through this tunnel that a good deal of traffic has already passed and worse will”. Ergo no need to abrogate it; rather use it to reduce Article 370 to a sham and render Kashmir’s autonomy hollow. With the President’s Order of July 6, 2017, that has come to pass, Mookerjee’s plans have been fulfilled thanks to a BJP regime at the Centre and in Kashmir, with the PDP as a submissive partner.

The very last Order under Article 370 was made 23 years ago. It is C.O. 154 by the President in 1994; by then militancy was in full swing and public opinion was awake and assertive. It was in the State’s interest to ensure an end to the process that was blatantly unconstitutional. Article 370 is not on a par with other provisions of the Constitution adopted by the Constituent Assembly. The Assembly simply put its formal seal of approval on a draft negotiated for five whole months from May to October 1949. Both Vallabhbhai Patel and his Cabinet colleague Mookerjee were party to it. Patel negotiated it.

 

Need for concurrence

Jammu and Kashmir acceded to India by the Maharaja’s Instrument of Accession on October 26, 1947, in respect only of three subjects: defence, foreign affairs and communications. Article 370 “limited” the powers of Parliament to those three subjects. The President was empowered to make an order extending to Kashmir these three subjects and the federal structure in “consultation” with the State government. But its “concurrence” was required if additional subjects or other provisions of the Constitution were to be applied to Kashmir. There was one overriding proviso. That concurrence was subject to ratification by the Constituent Assembly of Jammu and Kashmir (Article 370 [2]).

This was made clear beyond doubt by N. Gopalaswami Ayyangar, the mover of Article 370 in India’s Constituent Assembly on October 17, 1949. “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. …You will remember that several of these clauses provide for the concurrence of the Government of Jammu and Kashmir State. Now, these relate particularly to matters which are not mentioned in the Instrument of Accession, and it is one of our commitments to the people and Government of Kashmir that no such additions should be made except with the consent of the Constituent Assembly which may be called in the State for the purpose of framing its Constitution.”

In 1949, no one knew when Kashmir’s Constituent Assembly would be elected. Ayyangar therefore said: “The idea is that even before the Constituent Assembly meets, it may be necessary… that certain items which are not included in the Instrument of Accession would be appropriately added to that list in the Instrument… and as this may happen before the Constituent Assembly meets, the only authority from whom we can get consent for the addition is the Government of the State.”

He explained: “We are entangled with the United Nations in regard to Jammu and Kashmir and it is not possible to say now when we shall be free from this entanglement. That can take place only when the Kashmir problem is satisfactorily settled. …

“At present, the legislature which was known as the Praja Sabha in the State is dead. Neither that legislature nor a Constituent Assembly can be convoked or can function until complete peace comes to prevail in that State. We have therefore to deal with the Government of the State which, as represented in its Council of Ministers, reflects the opinion of the larger political party in the State.”

Once Kashmir’s Constituent Assembly was “convened” on October 31, 1951, the State government lost all authority to accord any “concurrence” to the Union. With the Assembly’s dispersal on November 17, 1956, after adopting the Constitution of Jammu and Kashmir, vanished the only authority that alone could cede (i) more powers to the Union and (ii) accept Union institutions other than those specified in the Instrument of Accession. All additions to Union powers since then are unconstitutional. So is the Order of July 6, 2017.

In fact, the abuse reduces Jammu and Kashmir to an inferior position. For, while in relation to other States, an amendment to the Constitution would require a two-thirds vote by both Houses of Parliament plus ratification by the States (Article 368), for Kashmir, mere executive orders by the President have sufficed since 1953 and can continue until doomsday. “Nowhere else, as far as I can see, is there any provision authorising the executive government to make amendments in the Constitution,” President Rajendra Prasad pointed out to Prime Minister Nehru on September 6, 1952. Is this the state of things we wish to perpetuate?