The Uncared-for Plight of Uighur Muslims in China | Guest Post by Mahak Agarwal

  

Seven decades ago, the world witnessed a dreadful Human Rights violation. Hitler's regime pledged to wipe out every human belonging to the Jewish sect residing on the German Land. People were tormented, put in concentration camps, locked in gas chambers, and sometimes even executed publicly. After some of those deadly years, the international community lambasted Hitler's actions and pledged to prevent targeted hate crimes against communities. 

 

Seventy years later, here we are again. With its head buried in the sand, the international community chose to remain silent while Uighur Muslims in China face religious, cultural, and ethnic Genocide.

 

China, mainly dominated by the Han Chinese community, is also home to several ethnic minorities. The Uighurs are one such ethnic community, residing in Xinjiang province, which is also the largest autonomous province of China. Given the nature of China's powerful dictatorship regime, even a large population of around 10 million Uighurs living in this region could not escape the abominable cruelty that it subjects these people to.

There's no denying that the Dragon's actions, on many fronts, are becoming inhumane and barbaric. 

 

Who are Uighurs?

Uighurs are Sunni sect Muslims of Turkish ethnicity, recognized as native to the Xinjiang region. They constitute around 45% of the population of this region. They declared themselves independent in the 20th century; China took control of the area in 1949. Since then, the process of Sinicization (a method of bringing people of non-Chinese descent under the influence of Chinese culture) is getting into high gear. 

 

A look into Xinjiang Province

Xinjiang, as mentioned earlier, is the largest autonomous province of China. Since its annexation, the Chinese have been cautious about protecting Xinjiang due to its strategic importance. Landlocked from all sides, it is home to China's most important resources, i.e., one-third of China's natural gas and oil reserves, 60% of China's total cotton output, 38% of China's coal reserves, to name a few. Xinjiang sits at the heart of China's Belt and Road Initiative and acts as Beijing's gateway to Europe and Central Asia. This may be one reason for the insecurity of China's Communist Party (CCP) of lending out this region to a community of non-Chinese ethnicity. 

 

China's actions 

To be precise and apt: It is mercilessly killing, torturing, and wiping off a whole class. The persecution has been going on for a long time now. From demolishing over ten-thousand mosques to making Uighurs a victim of forced assimilation, CCP has manifested its diabolical character to the world. Humanity has again been forgotten as Uighurs are being looked down on by China's ruling party. 

 

The Uighur Muslims have been put in concentration camps, popularly called by CCP as "Re-Education Camps," "Joyful Training Schools," where Uighurs are forced to speak and act Chinese. In the name of 'Correcting Extremist Behaviour,' China subjects these Muslims to political indoctrination. The state surveillance system in the region doesn't let the Muslims carry out their religious and traditional practices. People aren't allowed to chant the Quran; men and women can't wear their formal dresses. Such is the stolidity exhibited in this country, seen nowhere else.

 

In order to shrink the Uighur population, women are either made to sleep with Han-Chinese men or are subjected to forced sterilization or abortion. What is it, if not a 'State-sanctioned rape'?

 

And the effects of this "Population Shrink Drive," as we may call it, is real. The number of Uighurs living in Xinjiang was 76% of the population back in 1949; it has now been reduced to just 40%. Out of around 10 million Muslims living in the region, about 2 million are behind bars for no rhyme or reason. Even those moving freely are under high state surveillance, curbing freedom in any form. 

 

The stance of the international community

The Islamic nations, the so-called 'Defenders of Faith,' measure the importance of brethren by China's cheques. Out of the 37 Muslim-majority countries that back Chinese suppression, 14 are members of the Organization of Islamic Cooperation. OIC, an organization that calls itself 'Collective voice of Muslims' worldwide, too genuflected to the CCP for its money. It doesn't seem to have enough audacity to question the Dragon lest it fires back at them. Even countries like Pakistan, Turkey, and Malaysia, which have a record of speaking for Muslim Rights worldwide, have silenced themselves in front of China.

 

The whole world sits tongue-tied today, raising a meek voice, if at all, while Uighurs' sufferings are becoming unendurable each day.

 

Applicable international laws 

The world took a wake-up call after the Second World War and for the first time codified the crime of Genocide at an international level.

 

The Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), as it stands today, was the first human rights treaty adopted by the General Assembly of the United Nations on 9 December 1948. Its adoption not only exhibited the determination of the world to formulate resilient international human rights but also a resolute decision to safeguard each being from such atrocities.

 

This convention is binding on countries and obligates them to prevent Genocide, enact relevant legislation, and punish perpetrators. China, being a party to the Genocide Convention, is obligated to act in line with the convention, and if it doesn't, the world has the right to question and punish China for its sinful acts.

 

The Road Ahead

Turning a blind eye to the worst Human Rights violation of its time will put one and all in dire straits. The world cannot compensate for what happened with Jews seven decades ago, but it can surely stop CCP from setting another such horrifying example for generations to come. It's time the international community deterred and warned China of its sinful crime.

 

As a believer in meliorism, I opine that the world can still indulge in rectification without further ado, and humanity will follow. 

 

9 December, this year, marks the 70th anniversary of the Genocide Convention and is celebrated as International Day of Commemoration and Dignity of the Victims of the Crime of Genocide and of the Prevention of this Crime. This year, let's resurrect the pledge of 'NEVER AGAIN' that the world adopted 70 years back. It's correctly said - "The rights of every man are diminished when the rights of one man are threatened.

The contours of the right to receive bail | Guest Post by Rasveen K. Kapoor

(This is a guest post by Rasveen K. Kapoor. Rasveen is a student at Indore Institute of Law).  

Arnab Goswami || Siddique Kapan

“A man of courage never needs weapons, but he may need Bail.” 

– Lewis Mumford, American historian

It is the sacrosanct obligation of all concerned with the justice dispensation system to ensure that the administration of criminal justice remains effective and meaningful. Literally, the expression 'bail' denotes a security for appearance of a prisoner for his release. Bail is a grant of conditional liberty to an accused who assures or on whose behalf assurance is given that he would be present at the trial. It is imperative to note that the very idea of bail emerges from an assumption, of the accusatorial framework, i.e.  innocent till proven guilty.

As recognized by the English jurist, William Blackstone, “it is better that ten guilty persons escape, than that one innocent suffer.”  An incalculable wrong is done to an innocent person who spends even a single day in prison. From the date of recording of an FIR till consummation of the trial process and the case decision, the law contains different arrangements to release an accused on bail. Through multiple decisions, the Supreme Court of India has held that bail is a privilege and is significant in a democratic republic, until he is demonstrated liable through a fair trial process.

A Mathura court on November 13^th’ 2020, dismissed the bail plea of three persons, booked on charges of sedition and terrorism after their arrest in Mathura along with a Kerala journalist namely, Siddique Kappan – who was on his way to Hathras village to meet the family of a Dalit woman who died after being brutally gang raped.

This denial of bail must be examined in context with the speed with which Arnab Goswami received bail, after just a single hearing in the Supreme Court. The speedy hearing and the grant of bail to Arnab Goswami has rekindled the moot question regarding the selective treatment of the high and the mighty - “Whether the privilege to fundamental rights is only a prerogative of the riches”?

When bail is refused, it is a restriction on personal liberty of the individual guaranteed by Art.21 of the Constitution and therefore such refusal must be rare. Where delays in the disposal of criminal proceedings take place, the accused ought not to be kept in custody for an inordinately long time and must be released on bail except when under extremely rare circumstances it is not possible to do so.

Personal liberty is recognised significantly in the constitutional framework under Article 21. While considering bail applications of the accused, it is important that the courts balance considerations of personal liberty and the interests of the general public, thereby paving a way for judicial discretion in matters of bail.

 It is the solemn duty of the court to decide the bail applications at the earliest by a reasoned order, based on the bona fides of the applicant in light of prevailing facts and circumstances. The Hon’ble Supreme Court in the matter of State of Maharashtra vs. Sitaram Popat Vital[1] has stated certain points to be considered before granting bail, namely:

1.  The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence
2.  Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant
3. Prima facie satisfaction of the Court in support of the charge.

The Supreme Court had time and again stated that bail is the rule and committal to jail is an exception. Refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution.

The Hon'ble Supreme Court in the matter of Prahlad Singh Bhati vs. N.C.T. Delhi and Ors[2] has mentioned some relevant grounds that play a vital role in deciding the bail applications being, the possibility for repetition of crime, the time lag between the date of occurrence and the conclusion of the trial, illegal detention, and undue delay in the trial of the case.

It has been regarded by the Hon’ble Supreme Court in the case Babu Singh and Ors. V. State of U.P. [3] that, deprivation of personal liberty by refusal of bail applications blurs the great trust exercisable as on the part of the judiciary as an institution, not casually but judicially, with lively concern for the cost to the individual and community. Personal liberty of an accused or convict is fundamental, and shouldn’t be subjected to suffering lawful eclipse in terms of the procedure established by law. 

In all these cases, the common condition attached is that the person released on bail will be brought before the court on demand. Other conditions may be imposed as may be deemed appropriate. It may be stated in passing that in the event of delivering custody to the state by way of refusal of bail to the accused or his surety the court may set out other conditions for the benefit and enjoyment of liberty by the accused.

Legislative prescriptions governing inmates in prison may be said to be serving this end. These regulations have to be in conformity with the themes of such human dignity as are now being expounded by the court as a part of human rights jurisprudence in general and personal liberty in particular.[4]

Passionate pleas for personal liberty are often being made while seeking release of an accused person in pre-trial cases. This approach is expressive of the conscious assertion to protect the individual rights. The pre-emptive rule of “Bail Not Jail” as regarded in Khemlo Sakharam Sawant v. State of Maharashtra[5] , vis-a-vis Article 21 should not be ignored. Though judicial discretion in matters of granting bail is imperative, but selective treatment by judiciary in matters of personal liberty dwindles the very faith of an individual in the credibility of judiciary as an institution.

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[1] State of Maharashtra vs. Sitaram Popat Vital AIR 2004 SC 4258.

[2] Prahlad Singh Bhati vs. N.C.T. Delhi and Ors AIR 2001 SC 1444.

[3] Babu Singh and Ors. V. State of U.P., (1978) AIR 527, 1978 SCR (2) 777.

[4]  D.C. Pandey, "Criminal Law", XVI ASIL 452 et. seq. (1980).

[5] Khemlo Sakharam Sawant v. State of Maharashtra 2002 (1) BOM C.R. 689.

A throwback to 1907 -- Sardar Ajit Singh's peasant movement in Punjab

Sardar Ajit Singh 

Over the last two days, thousands of farmers from North India have begun a “Delhi Chalo” march, to protest against the farm law amendments passed by Parliament in September. The farmers continued their march despite facing water cannons and tear gas from the Haryana Police. Led by organizations such as the All India Kisan Sangharsh Coordination Committee, the farmers have shown fierce resistance to the Police forces and the barricades, making this among the most significant farmer movements we have witnessed in recent years.

This post aims to draw parallels with another farmer movement that took place 113 years ago, during the British Raj.

The ‘Pagdi Sambhal Jatta’ movement

In 1907, Sardar Ajit Singh, a freedom fighter and nationalist revolutionary, led a peasant movement in Punjab – which was popularly referred to as the ‘Pagdi Sambhal Jatta’ movement – to protest against the British Empire’s decision to pass the Punjab Colonisation Bill, 1907. The genesis of this Bill goes back to 1879, when the British constructed the Bari Doab Canal for drawing water from the Chenab River. This water was to be transported to Lyallpur, in Punjab (After the partition of Punjab in 1947, Lyallpur is now a part of Pakistan. It was renamed as Faisalabad in 1977).

The British requested peasants and servicemen from places such as Jalandhar and Amritsar to settle in Lyallpur, and promised to allot them free land for cultivation. The peasants settled in Lyallpur and toiled for more than a decade to make the land fertile for agriculture. In 1907, when the land had become fertile, the British proposed to enact the Punjab Colonisation Bill. This Bill took away the farmers’ right to own the lands that they had cultivated, and would transfer the ownership rights to the British Empire.

The farmers were reduced to the status of sharecroppers, and could not directly sell or purchase the land. If the farmers violated the provisions of the proposed Bill, they faced the prospect of being evicted from their lands. The Bill hence nullified the efforts that the farmers had put, to make this land fertile.

To oppose this Bill, Sardar Ajit Singh began the Pagdi Sambhal Jatta movement – which was also joined by retired Indian soldiers and other freedom fighters such as Lala Lajpat Rai. The movement witnessed mass rallies and protests, where calls were also made for a permanent end to colonial rule.

Lala Lajpat Rai

Along with mobilizing Punjabi farmers, Ajit Singh also gathered the support of serving Sikh soldiers. This popular support resulted in a situation where many serving Indian soldiers refused to open fire at the protesting peasants – and defied the orders of their British masters. However, the British continued to brutally repress the movement.

On 9^th May, 1907, Sardar Ajit Singh and Lala Lajpat Rai were deported to Mandalay jail in Myanmar. Despite the repression faced at the hands of the Empire, the movement was partially successful, as the Colonisation Bill was vetoed by the Governor-General, and ultimately withdrawn.

Interestingly, the name ‘Pagdi Sambhal Jatta’ was derived from a song introduced by Banke Dayal, who was the editor of the Jhang Syal newspaper. The words of the song -“Pagdi sambhal Jatta, Pagdi Sambhal oye” became so popular among the masses that it defined and symbolized the soul of this movement. 

Parallels to 2020

After the Indian Constitution came into force in 1950, Indians got the right to be citizens of their own country, and were no longer only the subjects of their British masters. The farmers, led by Ajit Singh, who protested during the Pagdi Sambhal Jatta movement were not Indian citizens, and were only subjects of the British Empire. Contrast this to the present march to Delhi, where the farmers facing repression at the hands of the Delhi and Haryana Police are Indian citizens – who have a fundamental right to assemble peacefully without arms under Article 19(1)(b) of the Constitution.

But, the ferocity with which the Police obstructed their movement with tear gas and water cannons makes one wonder whether fundamental rights such as Article 19(1)(b) continue to merely be freedoms that are available at the pleasure of the State. 71 years after our Constitution was adopted, as we witness fundamental rights trampled upon on a daily basis, it is time to question – is there any difference between 1907 and 2020?

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Postscript: After being released from Mandalay Jail, Sardar Ajit Singh faced yet another arrest warrant from the British. To evade arrest, he escaped to Iran in 1909, and subsequently went to Europe – to gather support for the Indian independence movement.

During the Second World War, Ajit Singh was in Italy. After Italy’s defeat, he was arrested in May 1945 by the Allied Forces, and was moved across multiple jails in Germany and Italy. Prolonged incarceration in multiple jails had an adverse impact on his health. In 1946, when independence from colonial rule was on the horizon, he was released and sent back to India.

He breathed his last on 15^th August 1947 – the day India became independent.  

Historical origins of equal voting rights in US and India

This month, we have witnessed two closely fought elections – first in the United States, and then in Bihar. Both these elections saw significantly high voter turnouts, despite the difficulties brought about by the Covid-19 pandemic. In Bihar, women voter turnout was higher than men – in 166 out of 243 constituencies. In the US, there was a record voter turnout of 67% - which is the highest voting percentage in 120 years.

Such extensive democratic participation is possible only because both US and India have universal adult suffrage – which allows all adults to vote, and grants equal voting rights to both men and women. This parity in voting rights was not always present, and has been achieved after vigorous activism and debate. In this post, we shall revisit the historical origins of equal voting rights, in the US, and in India.

Historical origins of equal voting rights in the US

When the US Constitution was drafted in 1787, it did not envisage equal voting rights. The US Constitution legitimized the practice of slavery, where African-Americans (Blacks) were treated as the ‘property’ of their owners. Along with all African-Americans, even White women were denied the right to vote. In 1865, President Abraham Lincoln pioneered the 13^th Amendment to the US Constitution, which abolished the practice of slavery. 5 years later, in 1870, Black men were granted the right to vote, through the 15^th Amendment. While the 15^th Amendment permitted all men to vote, it still did not grant voting rights to American women.

It took 50 further years of struggle for all American women to receive the right to vote – via the 19^th Amendment to the US Constitution, ratified in 1920. The 19^th Amendment was brought before the US Senate for the first time in October, 1918. The Amendment would require a two-thirds majority to be passed i.e. 54 votes in its favor. Despite having the backing of then US President Woodrow Wilson, it failed to pass the Senate by a small margin of 2 votes.

The amendment was brought before the Senate once again in June 1919. This time, the Amendment was passed by the Senate with a vote of 56-25 (56 in favor and 25 in opposition). This was just 2 votes more than the minimum number of votes required! Even after equal voting rights were granted on paper, the Southern States of America (such as Alabama and Texas) would continue to discriminate against Black men and women, and would devise additional criteria for voter eligibility, that would disenfranchise the Black community.

This was done through methods such as arbitrary registration requirements, payment of poll taxes, and literacy tests. ‘Poll taxes’ were a fee that eligible voters would have to pay, before being allowed to cast their ballot. While this fee would be relatively small, it would still be unaffordable for a large segment of the Black community.

Under the garb of conducting ‘literacy tests’, electoral registration officials in Southern States would deliberately ask African-Americans to recite the entire Constitution, and explain complex provisions of State laws. Even a small error on their part would give the electoral officer a reason for refusing to add their name to the list of eligible voters. This was a travesty, where Blacks would have to recite the entire Constitution before being ‘eligible’ to gain access to their constitutional rights.

These practices prevailed during what is known as the “Jim Crow era” – where the Southern States of US enforced racial segregation through their local laws. These local laws mandated separate public facilities for Blacks and Whites. This meant that there would be separate restaurants, schools, buses, housing apartments etc for Blacks and Whites. The facilities accessible to White Americans were undoubtedly better. But, Blacks would not be able to access these public facilities, as they were exclusively reserved for Whites.

The era of ‘Jim Crow’ laws continued until 1964. In 1964, the Civil Rights Act was passed, which put an end to racial segregation of public facilities. Even after the end of the Jim Crow era, Southern States like Alabama continued to discriminate against the Black community, and suppressed their voting rights.

In 1965, with the goal of ending suppression of the Black vote, civil rights icon Dr. Martin Luther King Jr. began a movement for a national voting rights law – that would put an end to voter suppression methods such as literacy tests. Dr. King led three 54-mile marches in the State of Alabama. The first two marches were met with fierce resistance from State troops, as well as White supremacist groups. This left Dr. King with no choice but to retreat, as he feared large-scale violence.

Dr. Martin Luther King leads a march from Selma to Montgomery, Alabama - to demand the passage of the Voting Rights Act. 

But, his movement had the requisite impact, and President Lyndon Johnson announced that he would be introducing a new voting rights legislation in Congress, that would outlaw practices such as literacy tests. During his nationwide address, Lyndon Johnson remarked –

“Their cause must be our cause too. Because it is not just Negros (i.e. Blacks), but really it is all of us, who must overcome the crippling legacy of bigotry and injustice. And we shall overcome”.

Dr. King followed this up with his third march across the State of Alabama, which further fortified his demands. Subsequently, in August 1965, the US Congress passed the Voting Rights Act, which provided for federal oversight of voter registration, and also prohibited practices like voter literary tests.

While the situation has improved considerably after the enactment of the Voting Rights Act, certain States continue to take advantage of America’s decentralized election system, to devise new ways of suppressing the Black vote. This is done through stricter Voter ID requirements, photographic identification procedures, and by placing curbs on voter registration drives. Hence, while the US has made significant progress to fructify equal voting rights, a lot more needs to be done to ensure that Blacks and minorities can vote without harassment.

Historical origins of universal adult suffrage and equal voting rights in India

Through Article 326 of our Constitution, the Indian Constituent Assembly guaranteed universal adult suffrage – which meant that everyone above the age of 21 was eligible to vote after the Indian Constitution came into force. [In 1988, this voting age was reduced from 21 to 18].

In the Constituent Assembly, some members did express concerns with respect to whether universal adult suffrage should be granted immediately – as around 85% of the Indian population was illiterate. The members also debated on whether it would be better to gradually give voting rights to different segments of the population. The Assembly ultimately agreed on granting universal adult franchise immediately upon the founding of the Republic - as parliamentary democracy would be meaningless if segments of the population lacked the right to elect their representatives. They also felt that illiteracy shall be eventually tackled through steps taken by the Government.

While the Constituent Assembly granted us universal adult franchise right from the founding of the Republic, demands were also made to secure equal voting rights for men and women, during the British Raj. During the British Raj, the right to vote in local and provincial elections could be availed only by those who owned property, and satisfied other criteria relating to educational qualifications, place of residence etc. Until 1921, women were not permitted to vote in these local and provincial elections. This made social reformers like Annie Besant and Sarojini Naidu push for equal voting rights for women.

In 1921, Madras became the first Legislature of British India to grant women the right to vote. The Bombay Legislature followed soon thereafter. Among the princely States, the Kingdom of Travancore was the first to grant voting rights to women. This voting right was not universal. Just like male voters, women could vote only after they fulfilled the qualification criteria laid down by the provinces - which were based on educational standards, place of residence, ownership of property etc.

Along with social reformers and activists, an Indian bureaucrat of the British Empire also made a significant contribution to secure equal voting rights. This bureaucrat was V.P. Menon – who later played a crucial role in integrating the princely States into the Indian Union, along with Sardar Vallabhai Patel.

V.P. Menon 

In 1935, as an Under-Secretary in the Reforms Department of the British Raj, V.P. Menon was tasked with implementing the provisions of the Government of India Act, 1935. Under this law, elections were scheduled to be held in 1937 – in provincial legislatures such as Bombay, Madras, and Bengal. V.P. Menon began work on constructing an electoral role, and also made a recommendation that the name of every adult women should be put on the electoral roles.[1] While this recommendation was not accepted in its entirety, the 1937 provincial legislature elections had significantly enlarged the size of the electorate.

Menon also got his superiors to approve a clause that allowed women whose marriages had been dissolved to retain their names on the electoral roles – deeming them eligible to vote.[2] While V.P. Menon’s contribution in integrating princely States such as Hyderabad, Kashmir and Junagarh has been well-documented, his contribution in expanding the scope of the right to vote has largely been forgotten.

While the Constituent Assembly granted us universal adult suffrage, the seeds of equal voting rights were sown during the final years of the British Raj itself – due to contributions made in different capacities by V.P. Menon, Sarojini Naidu, Annie Besant etc. These initial steps were taken forward by the Constituent Assembly, which agreed to make a specific provision in Article 326 of the Constitution, that would secure non-discriminatory access to voting.

The high percentage of women voter turnout that we witnessed in Bihar is a salute to this vision of our founders. This vision can now be taken forward, and sufficient steps must be taken to make the polling booth even more accessible to the Indian voter – irrespective of caste, gender and economic status.

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[1] Narayani Basu, V.P. Menon – The Unsung Architect of Modern India, Simon & Schuster Publishers (2020), Pg. 97.

[2] V.P. Menon – The Unsung Architect of Modern India, at Pg. 120.

Breaking down the US Electoral College system

Yesterday, Joe Biden was ‘called’ as the winner of the US Presidential election, as soon as it was certain that he would win at least 270 seats in the ‘electoral college’. The US media outlets who ‘called’ the election in favor of Joe Biden focused solely on whether he was definitely winning 270 electoral college seats, and did not focus on whether he had won a simple majority of the total number of votes cast.

So, what exactly is this electoral college system, and why is the election not decided simply by determining which candidate receives more national votes in total? In this post, we shall discuss certain features of the electoral college system, which shall help us understand the election result better.

Let us begin by discussing certain essential features of the electoral college system, along with some relevant stats:

• The total number of seats in the electoral college is 538. These 538 seats are divided and allocated amongst every State in the US. The allocation of seats is done on the basis of the population of each State. For instance, as California is the State with the largest population, it has 55 seats in the electoral college – which is more than any other State. On the other hand, Delaware and Hawaii have only 3 seats each in the electoral college, as their population is significantly less when compared to a large State like California. The number of seats in the electoral college also equals the number of representatives a State sends to the US Congress (i.e. the House of Representatives and the Senate).

• The presidential candidate who wins more votes in a particular State wins all the seats of that State’s electoral college. For instance, as Joe Biden received more votes than Donald Trump in California, he won all the 55 electoral college seats. This system of granting all electoral college seats to the winning candidate is known as the ‘winner-takes-all’ system. 

• As there are a total of 538 electoral college seats, a candidate has to win at least 270 seats to be elected as the President. Now, a candidate can win 270 seats based on the number of States where he receives a majority of the vote. Hence, the outcome is decided based on the number of seats won, and not by whether the candidate receives more of the total national vote.

• This implies that a candidate can win the presidential election even if he does not win the total national vote, but wins at least 270 electoral college seats. This happened in the 2016 presidential election, where Donald Trump lost the total national vote, but still won 306 seats of the electoral college. Hillary Clinton received a total of 2.9 million more votes than Donald Trump. But, she lost the election as she could only win 232 electoral college seats. This is one of the main reasons why the electoral college system has been criticized – as a candidate can win the election even if he loses the total national popular vote.

• Apart from 2016, there have been 4 other instances where a candidate won the election even after losing the total national vote. In 2000, George Bush Jr. won the election even though Al Gore, the Democratic presidential nominee, won the popular vote. In fact, George Bush Jr won the State of Florida by a small margin of 537 votes, and became President only after the United States Supreme Court barred the State of Florida from recounting the votes! A small margin can hence determine the difference between victory and defeat – irrespective of which candidate wins a simple majority of the total national vote.

Source: TheConversation.com

‘Swing States’

Now, most States in the US vote consistently for either the Democrats or the Republicans. For instance, as California has consistently voted for the Democratic Party, it is categorized as a ‘Blue State’. On the other hand, as Texas is a stronghold of the Republican party, it is categorized as a ‘Red State’. There are only a handful of ‘Swing States’, where there is a greater possibility of the vote swinging between the Democratic and Republican candidates.

In this election, Pennsylvania, Michigan, Wisconsin, Florida, Arizona, and Georgia were considered as the major swing States, where the vote could swing between either of the parties. Arizona and Georgia were late entrants to this list, as both of these States have also traditionally voted for the Republican Party in the past.

The presence of these swing States also throws light on the campaigning patterns of the presidential candidates, and why they spent a disproportionate amount of time campaigning in the Swing States. While Biden and Trump barely visited California or Texas (where the outcome was certain), they spent considerable amount of time in Michigan, Wisconsin, Pennsylvania and Florida – where the vote could shift in small, but decisive margins.

In 2016, Donald Trump managed to cross the 270-barrier only after he won Pennsylvania, Michigan and Wisconsin by very small margins. Donald Trump won Pennsylvania by only 44,292 votes, and won Wisconsin by an even smaller margin of 22,748 votes. Even in the current election, Joe Biden is likely to win Pennsylvania and Wisconsin by a small margin of approximately 40,000 votes each.

The presence of such swing States with small victory margins leads to a situation where certain States get a greater weightage in determining the outcome of the Presidential election. If the electoral college is abolished, the candidate who wins a simple majority of the total national votes can be directly adjudged as the winner. This would directly reduce the disproportionate significance that a handful of Swing States have, in determining the outcome of the election. For this reason, there have been multiple demands for a constitutional amendment to abolish the electoral college system.

But how did such a system originate in the first place?

The historical origins of the electoral college system

The United States Constitution was drafted at the Constitutional Convention in Philadelphia, which took place between May 25 and September 17, 1787. The framers of the Constitution decided to allocate a specific number of electoral college seats to each State – based on its population. The number of electoral college seats allocated would also be equal to the number of representatives that the State would send to the US Congress.

While the Constitution was being drafted and debated, a majority of America’s white citizens lived in cities such as Boston and Philadelphia – which are in the North. As the Northern States had a higher population of Whites – they would be allotted a higher number of seats in the electoral college. The Southern States (such as Alabama and Texas) had less Whites when compared to the North. But, a majority of African-Americans, who were slaves and were treated as the ‘property’ of their ‘owners’ – stayed in these Southern States. The Northern States had a very small proportion of African Americans.

As African-Americans were considered to be the ‘property’ of their ‘owners’ – they did not have voting rights, and were not treated as equal citizens. But, the Southern States wanted them to be included while calculating the total population of a State, as an increase in that number would grant them more seats in the electoral college. The Northern States rejected this demand.

This stalemate led to the ‘three-fifths compromise’ – which was codified in Article 1, Section 2 of the US Constitution. As per the ‘three-fifths compromise’ – every African-American would be considered as ‘three-fifths’ (60%) of a White person. Hence, as an example, for every 100 African-Americans, the State’s population would be deemed to increase by 60. This significantly increased the number of seats Southern States received in the electoral college. The practice of slavery, where Blacks were treated as property and not as human beings – is one of the founding pillars of this electoral college system.

In 1816, a formal proposal was moved before the US Congress for the first time – to elect the President by determining the winner of the national popular vote, and abolish the electoral college system. This proposal was shot down by Senators from the Southern States - who felt that this would reduce the influence that Southern States had in the electoral process.

In 1969, the House of Representatives voted in favor of a constitutional amendment to dismantle the electoral college system. But, this amendment could not pass the Senate as a bipartisan consensus could not be achieved. The electoral college system, conceptualized in the dark era of slavery, has hence survived the test of two centuries, while 270 continues to be the magic number.

Postscript: While we discuss the US elections, it is significant to note that African-American men were conferred the right to vote only in 1870, 5 years after the practice of slavery was abolished. Also, all adult women got the right to vote only in 1920, after the 19^th Amendment to the US Constitution was ratified. For a Constitution that was drafted in 1787 and ratified in 1789, it took more than 130 years of effort to achieve equal voting rights, even on paper.

Jammu and Kashmir’s new land law amendments – Are they constitutionally valid?

 

On 26^th October, the Ministry of Home Affairs notified the Jammu and Kashmir Reorganization (Adaptation of Central Laws) Third Order, 2020 (‘the Adaptation Order’). This executive order has made wide-ranging amendments to the land laws applicable in Jammu & Kashmir. These amendments are applicable only in the Union Territory of Jammu & Kashmir, and are not applicable in the Union Territory of Ladakh.

After explaining the procedure adopted for amending these land laws, we shall discuss the constitutional validity of the Adaptation Order notified by the Home Ministry.

We shall conclude our discussion by examining how the conversion of the State of Jammu & Kashmir into 2 Union Territories, along with the continued imposition of President’s Rule, has given the Central Government a justification for making legislative policy changes without any prior consultation.

The procedure adopted for notifying the Adaptation Order

Through the Adaptation Order notified by the Union Home Ministry, multiple land laws that were applicable in the erstwhile State of Jammu & Kashmir have either been repealed or amended. 12 land laws have been repealed, while 26 have been amended. After these amendments, outsiders (i.e. those who are not domicile residents of Jammu & Kashmir) can acquire both agricultural as well as non-agricultural land in the Union Territory.

This has led to an uproar, and politicians such as Omar Abdullah have contended that allowing outsiders to purchase land will further disempower the local population, and may alter the demography of Kashmir in the long run. It was also argued that such far-reaching changes to land laws were made without any prior stakeholder consultation.

It is pertinent to note here that in April, a similar ‘Adaptation Order’ was notified, to enact a new domicile policy for Jammu & Kashmir. This was done by amending the Jammu & Kashmir Civil Services (Decentralization and Recruitment) Act, 2010 – which prescribed the conditions that must be satisfied for claiming the status of a ‘domicile resident’ of Jammu & Kashmir. Just like the land law amendments, even the domicile policy was criticized on the ground that it was notified without any prior consultation or discussion.

In both of these Adaptation Orders, it has been stated that the Order derives legal force by virtue of Section 96 of the Jammu and Kashmir Reorganization Act, 2019 (‘the Reorganization Act’).

To recall, the Reorganization Act has bifurcated the erstwhile State of Jammu and Kashmir into two separate Union Territories of Jammu & Kashmir and Ladakh. This statute was introduced simultaneously with the Presidential Order and the Statutory Resolution which amended Article 370 of the Indian Constitution, on 5^th August 2019. To understand the nature and purpose of the Adaptation Order, it is instructive to refer to Section 96 of the Reorganization Act. Section 96 falls under Part XIV of the Reorganization Act, which consists of “Legal and miscellaneous provisions”. It states as follows:

"For the purpose of facilitating the application in relation to the successor Union Territories, of any law made before the appointed day, as detailed in Fifth Schedule, the Central Government may, before the expiration of one year from that day, by order, make such adaptations and modifications of the law, whether by way of repeal or amendment, as may be necessary or expedient, and thereupon every such law shall have effect subject to the adaptations and modifications so made until altered, repealed or amended by a competent Legislature or other competent authority"(emphasis supplied).

The Fifth Schedule referred to above consists of the Central and State Laws that are applicable in the newly formed Union Territories of Jammu & Kashmir and Ladakh. Section 96 confers the Central Government with the power to amend or repeal any Central or State law applicable in the Union Territories, if it considers it to be ‘necessary and expedient’.

This power is available for a period of one year from the appointed date i.e. the date on which the Reorganization Act came into force - which was 31^st October 2019. Hence, the Government can resort to Section 96 only upto 31^st October 2020. Now, such a provision enabling the adaptation and modification of existing laws by the Executive is not unique to this Reorganization Act. A similar provision is also present in Section 101 of the Andhra Pradesh Reorganization Act, 2014, which conferred the government with powers of adaptation and modification – for a period of 2 years.

An important question arises here with respect to the scope and ambit of the power of ‘adaptation and modification’ conferred by Section 96. The question that arises here is whether the power conferred by Section 96 is limited to making ‘adaptations and modifications’ solely for purposes of procedural and administrative efficiency, or whether it also extends to making policy alterations – such as allowing outsiders to purchase land, or enacting a new domicile policy.

The scope and ambit of the power of ‘adaptation and modification’

From a plain reading of Section 96, it is evident that the purpose of this provision is to adapt or modify any law for the purpose of facilitating its application to the successor Union Territories, if the Central Government feels that it is necessary and expedient to do so. This is further qualified by a one-year time limit, which means that adaptations and modifications can be made for a temporary period of one year - from the date on which the Reorganization Act has come into force.

The presence of a one-year time limit and the words “for the purpose of facilitating the application in relation to the successor Union Territories, of any law” indicates that such adaptations and modifications made through executive orders can be undertaken only for procedural and administrative matters connected with the bifurcation and the conversion of the erstwhile State into 2 Union Territories.  

This also implies that policy changes made through executive orders which are unconnected to this process of facilitating the application of existing laws shall be beyond the ambit of Section 96. This interpretation is also in line with the Supreme Court’s decision in the landmark In Re: The Delhi Laws Act (1951) case, where it was held that the Legislature cannot delegate matters of essential legislative policy to the Executive.

Keeping in mind the wording of Section 96 and the In Re: Delhi Laws Act decision, it can be argued that Section 96 cannot be used to make any substantive policy changes by amending existing laws; and it is restricted to matters of procedure and administration that are necessary for facilitating the smooth application of existing laws to the newly constituted Union Territories.

The Adaptation Orders referred to above have amended existing laws to permit outsiders to purchase land, and has also framed a new domicile policy for Jammu & Kashmir. These are clearly changes that fall within the realm of legislative policy, and are not simple modifications that have been made for procedural and administrative convenience. As they are substantive policy changes, it can be argued that they do not fall within the ambit of the power conferred by Section 96 – and should hence be struck down for going beyond what is permitted by the Reorganization Act.

There are hence strong grounds to challenge the Adaptation Orders in the Jammu & Kashmir High Court or the Supreme Court. Let us now examine certain constitutional provisions that the Central Government may invoke, in response to a possible legal challenge.

The Central Government’s possible line of defence

As per the Reorganization Act, the Union Territory of Ladakh does not have a Legislature, and is to be administered by a Lieutenant Governor, acting on behalf of the President. On the other hand, the Union Territory of Jammu & Kashmir follows a model similar to Pondicherry and Delhi. Along with a Lieutenant Governor, Jammu & Kashmir is envisaged to have a Legislature and a Council of Ministers headed by the Chief Minister.

Section 58 makes Article 239 and Article 240 of the Constitution applicable to the Union Territory of Ladakh. Article 240 states that for specified Union Territories (such as Pondicherry and now Ladakh), any Regulation made by the President which amends or repeals any applicable law shall have the same force as an Act of Parliament. Hence, with respect to the Union Territory of Ladakh, all executive orders issued by the Central Government shall be equivalent to a parliamentary law. However, the position is significantly different for the Union Territory of Jammu & Kashmir.

Unlike Ladakh, Article 240 has not been made directly applicable to the Union Territory of Jammu & Kashmir. This is by virtue of Section 13 of the Reorganization Act. Section 13 only states that the provisions contained in Article 239A of the Constitution as applicable to Pondicherry shall also be applicable to the Union Territory of J& K.

However, the Government may nevertheless invoke the proviso to Article 240(1) as a defence. The proviso to Article 240(1) states that if a body is created to function as the Legislature for the Union Territories enlisted under Article 239A (which now includes Pondicherry and Jammu & Kashmir), then until the first meeting of the Legislature, the Central Government may make Regulations that amend or repeal the existing laws that are applicable in the Union Territory. Also, as per Article 240(2), all such regulations made before the first meeting of the Legislature shall have the same force as a statute passed by Parliament.

This may be used as a justification by the Central Government in a possible constitutional challenge, as the Union Territory of Jammu and Kashmir is currently under President’s rule, and no Legislative Assembly has been created after the passage of the Reorganization Act. It may contend that even if the Adaptation Order is beyond the ambit of Section 96 of the Reorganization Act, it is saved by Article 239A and Article 240 – as Jammu & Kashmir does not have a Legislature as of now.  

Continued Imposition of President’s rule - A larger constitutional question

Keeping this possible justification aside, there is a larger constitutional question that the Court must address. As the Union Territory of Jammu and Kashmir is envisaged to have a Legislative Assembly, Article 239A read with the proviso to Article 240(1) permits the issuance of executive orders by the Central Government only until the first meeting of the Legislative Assembly, after fresh elections are held. Jammu & Kashmir was under President’s rule prior to its conversion to a Union Territory, and has continued to remain in President’s rule even after 31^st October 2019 (when the Reorganization Act came into force).

Article 356 of the Indian Constitution has continued to hold fort in Jammu & Kashmir since 19^th December 2018, and there is no specific information on any proposal to have fresh elections in the near future. The continued imposition of President’s rule and the conversion of the State into 2 Union Territories has given the Central Government a carte blanche to indiscriminately take advantage of the statutory and constitutional provisions referred to above, and rule by executive decree.

The rationale behind the Central Government wanting this unbridled power can be highlighted by referring to the Supreme Court’s decision in NCT of Delhi v. Union of India. In its decision, the Supreme Court held that although Delhi is a Union Territory and akin to a quasi-State, the actions of an elected government and an elected Legislature shall bind the Lieutenant Governor - for all matters that are within its legislative domain. Although this decision was based on an interpretation of Article 239AA of the Constitution, it applies squarely to Jammu & Kashmir – as akin to Delhi, Jammu & Kashmir is envisaged to have a Legislature despite being a Union Territory.

This implies that for all matters within its legislative domain, the Legislature of the Union Territory of Jammu & Kashmir shall stand supreme, and bind the Lieutenant Governor and the Central Government. Hence, if fresh elections had been held and a Legislative Assembly had been constituted, the Home Ministry could not have indiscriminately taken the benefit of Article 239A, Article 240, and Section 96 of the Reorganization Act - to bring about radical policy changes relating to land and domicile.  

As discussed above, the Adaptation Orders that made land and domicile-related changes were notified without any prior legislative consultation. If there was an elected Legislature in the first place, amendments to land laws, or a new domicile policy could only have been enacted through legislation, after debate and discussions involving members across party lines. The conversion to Union Territories coupled with the imposition of President’s rule has prevented any such discussion from taking place, and has granted the Central Government with unbridled power to make policy prescriptions without any pre-legislative consultation process.

While the Central Government may contend that once there is an elected legislature, the Legislature may further amend or repeal the changes after discussion, this shall only buttress my primary point – that as the presence of a Legislature is envisaged, such legislative policy prescriptions should be left solely within its domain.

This only culminates in one common end – which is the need for a greater legal and judicial conversation on whether it is within the spirit of the constitutional framework to indefinitely impose and repeatedly extend President’s rule under Article 356, and rule virtually by executive decree. Until this status quo remains, there shall only be rule by law in Jammu & Kashmir, and not rule of law.

[An earlier version of this piece was posted on the Indian Constitutional Law and Philosophy Blog in April. It is being reposted here with prior permission, after making changes based on developments that have taken place since April].