Hathras, untouchability, and Ambedkar's vision of social democracy

In the early 20^th century, Bhimrao Ramji Ambedkar, a schoolboy from the Ratnagiri district, would enter his classroom. He would have to go to a corner and sit all by himself, instead of sitting with his other classmates. Bhimrao would also have to get a piece of gunny cloth over which he could sit. He would take the cloth back home everyday as the servant employed by the school would refuse to touch the cloth.

When all other students of his class felt thirsty, they would only need to take the permission of the teacher before going to the tap and drinking water. When Bhimrao felt thirsty, he would hope that the school peon was available. He was not allowed to touch the tap himself, and could quench his thirst only if the peon would open the tap for him. If the peon was absent, he would not get any water, and would remain thirsty.

This schoolboy rose to become the architect of independent India’s Constitution, and the first Law Minister of independent India.

As an innocent schoolboy, Bhimrao had to face this discrimination only because he belonged to the Mahar community – which was one of the communities who were treated as ‘untouchables’ in the Bombay Presidency. Many of us may naturally think that the trauma and discrimination that young Ambedkar had to face as an ‘untouchable’ no longer exists today. Didn’t Article 17 of our Constitution abolish all forms of untouchability?

The gangrape and murder of a 19-year old Dalit girl in Hathras village, Uttar Pradesh proves us wrong. The girl was allegedly gangraped and murdered by her upper-caste neighbors, who had a prolonged feud with her Dalit family.

Beyond the obvious caste-based fault lines that led to the rape and murder, we must also not forget that the 19 year-old girl’s Dalit family were also treated as untouchables in their own village. The family members pointed out that no Brahmin or Thakur of the village would enter their house, and would only send a messenger if they had to convey a message.

Whenever the family visits a shop in the village, the shopkeeper sprinkles water on the money they hand over, as if to ‘purify’ the money given from the hands of an untouchable. Even 70 years after all forms of untouchability were outlawed through our Constitution, untouchability still continues to exist in practice – and the Hathras incident gives us yet another reminder. Although untouchability has been abolished in form, it has continued to exist in practice, as upper castes refuse to give up on the privileges that they receive through this status quo.

Upper castes benefit from this status quo – as the notion of untouchability allows them to prevent Dalits from accessing public goods like water and land. Almost every day, we come across news reports of Dalit men and women getting beaten up for innocuous acts like drawing water out of a well. Incidents of this nature show that young Ambedkar’s humiliation as a Mahar Dalit still cannot be relegated to the dustbins of history, or to social norms of the previous century.

Such practices tend to continue even after legislations such as the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 have been implemented – which aim to provide speedy justice to victims of caste-based atrocities. Even prior to this, the Protection of Civil Rights Act, 1955 made the practice of any form of untouchability a penal offence. The mere enactment of progressive legislations has not brought much change, as executive authorities and the police force may, on multiple occasions, have an inherent bias against the oppressed classes.

After the gangrape and murder in Hathras, the Police cremated the girl’s body at 2 AM, without even giving her parents the chance to see the mortal remains for one last time. Would the Police ever deny dignity during death in this manner, if the victim belonged to a so-called ‘upper caste’? This inherent confidence of ‘getting away’ arises only because of the victim’s caste – and it is this mindset that we need to change.

As the architect of India’s Constitution, Dr. Ambedkar was conscious of the damage that caste discrimination could do, even after India adopts its Constitution and becomes a political democracy. On 25^thNovember 1949, in his final speech before the Constituent Assembly, Ambedkar stated – 

“We must make our political democracy a social democracy as well. Political democracy cannot last unless there lies at the base of it social democracy. What does social democracy mean? It means a way of life which recognizes liberty, equality and fraternity as the principles of life…..how long will we continue to deny equality in our social and economic life? If we continue to deny it for long, we will do so only by putting our political democracy in peril”.

Ambedkar’s prescient warning reminds us that political democracy weakens when we continue to deny social and economic equality – by allowing practices such as untouchability to prevail. It is this social and economic inequality that allows the State to get away after tapping the phones of the Dalit victim’s family, who had just been denied the right to see their daughter for one last time. It also imbibes in us a culture where we treat oppressed communities as our inferiors, or turn a blind eye towards their humiliation - without realizing that they belong to the same brethren.

The fight against caste-based discrimination must hence begin from within. As Ambedkar observed – “In the fight for Swaraj (freedom from British rule), you fight with the whole nation on your side. In this [fight against caste] – you have to fight against the whole nation, and that too, your own”.

The Farmers' Trade and Commerce Bill - Has the Centre encroached upon the States' legislative powers?

Over the previous two weeks, we have witnessed nationwide protests from farmers – against the three agriculture reform Bills passed by Parliament. The Bill that has led to the maximum amount of consternation is the Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Bill, 2020 (‘the Trade and Commerce Bill’). This Bill aims to do away with the system where farmers can sell their produce only at mandis – which are specified markets regulated by the Agricultural Produce Marketing Committee (APMC) laws of each State. The Bill removes this monopoly of the APMC-regulated mandis, and allows the farmers to sell their produce directly to private players.

Farmers fear that this Bill will result in further losses for them – as they will not receive the Minimum Support Price (MSP) guaranteed by the Government if they are forced to sell their produce to private players. In States such as Punjab and Haryana, small and marginal farmers feel that they shall lose out on the support system provided to them by the traders, who act as intermediaries. This, according to them, shall leave them in a situation where they will have no assurance of a stable selling price for their produce – and they will be forced to bargain with big corporates.

Opposition Parties demanded the incorporation of specific provisions in the Trade and Commerce Bill to address the farmers’ concerns. This request was not taken on board, as the Bill was rushed through Both Houses of Parliament. Members of the Opposition also hinted at how the Trade and Commerce Bill may go against India’s federal structure – as making laws relating to agriculture falls within the legislative power of the State Governments. We shall explore and discuss this claim below – and examine whether the Central Government has the power to regulate agricultural markets.

Legislative Powers of the Centre and the States

Under Article 246 and the Seventh Schedule of the Indian Constitution, law-making powers are divided between the Centre and the States. The Union List (List 1) consists of 97 subject matters over which the Centre has the exclusive power to frame laws. The State List (List 2) has 66 subject-matters which fall within the exclusive domain of the States. For entries in the Concurrent List (List 3) – laws can be made by both the Centre and the States. If there is a conflict between a Central and State law for subject matters that fall within the ambit of the Concurrent List, Article 254 of the Constitution steps in. Article 254(1) provides that in such a situation, the provisions of the Central law shall prevail. Under Article 254(2), a State law can prevail over a Central Law if the assent of the President (who represents the Central Government) is received.

The legislative power to regulate agricultural markets

Entry 14 of the State List deals with ‘agriculture’, and Entry 28 deals with ‘markets and fairs’. Making laws relating to agriculture and markets hence falls within the legislative powers of the State Governments. The APMC legislation made by every State falls within the ambit of these entries – as they regulate the functioning of agricultural markets, which are commonly known as mandis.

This begs the question – how did the Centre justify passing a law that also deals with the sale of agricultural produce? The Centre made reference to Entry 33(b) of the Concurrent List, which deals with – “Trade and commerce in the production, supply and distribution of foodstuffs”. As Entry 33(b) deals with foodstuffs, it overlaps and conflicts to a certain extent with Entries 14 and 28 of the State List, which deals with agriculture and markets.

While the Centre has not referred to this overlap and possible conflict of legislative powers, it has taken note of the wording of Entry 33(b) - and has cleverly worded the Bill as the Trade and Commerce (Promotion and Facilitation) Bill. However, the mere similarity between the wording of Entry 33(b) and the name of the Bill is not sufficient to bring it within the ambit of the Centre’s legislative powers. To resolve such situations where there is an overlap and conflict between the legislative powers of the Centre and the States, two principles have been laid down by the Supreme Court.

The first principle is the doctrine of harmonious construction – which states that the overlapping entries should be harmoniously construed. The second principle, which is directly applicable here, is the doctrine of ‘pith and substance’. Under this doctrine, an overlap or conflict in the legislative powers of the Centre and the States should be resolved by examining the true nature and objective of the legislation. Once this is determined, any incidental encroachment on other subject matters shall be permissible – and shall not lead to the invalidation of the statute.

This doctrine of ‘pith and substance’ can be applied to argue that the Trade and Commerce Bill infringes on the power of State Governments to regulate agricultural markets.  Using this doctrine, the State Governments can argue that the true nature of the Trade and Commerce Bill is to regulate the functioning of agricultural markets - as the Bill nullifies the exclusive powers granted to the State APMC markets. Although the Preamble of the Bill talks about giving freedom to the farmers to sell their produce, it effectively infringes on the powers of the State APMC markets. This is evident from provisions such as Section 6, which forbids the State Governments from levying market fee, cess or any other levy through their State APMC Acts.

On the other hand, if this Bill is challenged in the Supreme Court, the Centre can contend that by virtue of Entry 33(b) [that deals with trade and commerce in the production, supply and distribution of foodstuffs] of the Concurrent List, it has the legislative power to give farmers the freedom to sell their produce beyond the confines of the APMC market. The Centre can argue that the true nature of the Bill is to give farmers the flexibility in trading with their produce, and the encroachment of the State List is of an incidental nature. There are hence equally persuasive arguments from both sides, and a legal challenge before the Supreme Court can go either way.

But, the State Governments may have one more option before them – through which they could overcome those provisions of the Bill that they construe to be against the interests of the farmers. The State Governments could amend their APMC laws in a manner that would nullify the provisions of the Trade and Commerce Bill. This may be constitutionally permissible, as Entry 14 and Entry 28 of the State List grants the State Governments with the legislative power to regulate agricultural markets. The Punjab Government is already considering this option, which in its view, shall ensure that private players do not exploit farmers.

If States were to amend their APMC laws to nullify the implementation of the Trade and Commerce Bill, the Centre may also not be able to take recourse to Article 254 of the Constitution. This is because Article 254 is applicable only when the laws of both the Centre and the State deal with a subject-matter present in the Concurrent List. Hence, as long as the States are able to establish that their amendments fall within their legislative power to regulate agricultural markets – their laws shall not be struck down on the ground that they are repugnant to the Trade and Commerce Bill.

As the Constitution gives sufficient leeway to the State Governments in this situation – there is a definite possibility that State Governments may amend their APMC laws to nullify the contentious provisions of the Trade and Commerce Bill. Such a possibility could have been avoided at the outset – if the Centre had taken all stakeholders on board before framing a law that possibly infringes on the State’s legislative powers. Irrespective of which way a possible legal challenge may go, this situation highlights the perils of bypassing stakeholder consultations before law-making, through which possible conflicts may be resolved in Parliament itself, rather than leaving it to the judiciary. 

The legacy of Justice Ruth Bader Ginsburg

In 1956, 23-year old Ruth Bader Ginsburg, fondly called ‘Notorious RBG’, got her admission in Harvard Law School. She was one among the nine woman - in a class strength of 500. Her dean invited all nine women law students home for dinner, and asked each one of them what they were doing taking the place of a man. The fact that this could happen in the country with the oldest written Constitution of the world, and in one of the world’s most prestigious law schools, reflects how deeply embedded gender bias has always been.

Around 4 years later, just as RBG finished law school with good grades, another Dean at Harvard recommended her for a clerkship with Justice Felix Frankfurter of the US Supreme Court. Justice Frankfurter refused to hire her, stating that although her candidature was impressive, he was still ‘not ready’ to hire a woman. RBG could also not find a job in any law firm in New York, as all of them refused to hire a woman. But, none of this deterred her, and only strengthened her resolve to fight against gender-based discrimination.

From 1963-1972, RBG spent the early years of her career as a Professor in Rutgers Law School, where she taught courses on civil procedure and ‘gender and law’. In 1971, RBG wrote her first brief for the US Supreme Court in Reed v. Reed. In Reed v. Reed, the issue was whether a State could directly prefer men over women as executors of family property. The US Supreme Court answered in the negative, and struck down the State law on the ground that it violated the equal protection clause, present in the 14^th Amendment of the US Constitution. This was the first time that the US Supreme Court had struck down a State law for being gender discriminatory.

RBG firmly believed that the equal protection clause should invalidate any law that was gender discriminatory. While this interpretation may seem obvious today, RBG says that she had faced a tough challenge in convincing the Court - as many judges did not even believe that there was something known as gender-based discrimination! She had to tap into the emotions of the judge, and would ask them about the kind of world they wanted to leave behind for their daughters and granddaughters.

She argued her first case before the US Supreme Court in 1973, where she represented Sharron Frontiero - an Air Force employee who had been denied housing allowance because she was a woman. RBG was among the first to convince the Court that along with affecting woman, gender discrimination of any kind also affects society at large. This was a point she stressed on while representing Steven Wiesenfield, who was denied social security benefits after losing his wife as soon as she gave birth to their child. 

Steven was denied social security benefits on the ground that only widows were eligible to receive it, and not widowers like him. Before the Supreme Court, RBG argued that denying social security payments to a man was based on the stereotype that only women can be homemakers - for taking care of their children. This case epitomized her approach, where she focused on gender discrimination from a perspective of social consequences, and not solely as a man-woman binary.

After her stellar work for gender justice, she was nominated as a Federal Judge in the Columbia Circuit, where she served for 13 years before being nominated to the US Supreme Court in 1993, at the ripe age of 60. RBG was just 1 out of almost 30 candidates who were shortlisted for elevation. But, when she was called to the White House for an interview with President Bill Clinton, it took her just 15 minutes to convince him about what she could bring to the table – as the 2^nd woman to be appointed to the Supreme Court.

In her 27 years in the Supreme Court, RBG’s judgments reflected the changes that she wanted, and had always fought for. She struck down the admission policy of the Virginia Military Institute, which forbade women from applying for admission even if they were capable of satisfying the admission criteria. Although inducting women faced resistance at multiple levels, RBG stuck to her view of the equal protection clause, stating that if women were given equal opportunity, even they can do us proud.

RBG also penned a number of landmark dissents, where she hoped that her views would “appeal to the intelligence of a future day”. She dissented from the majority view in the Ledbetter case - where the majority refused to honour Lilly Ledbetter’s right to receive equal pay in comparison to her male counterparts. While upholding Ledbetter’s right to receive equal way, she called out the majority judges’ indifference towards the different ways in which gender-based wage discrimination can take place.

She concluded her dissent by stating that now, “the ball is in Congress’ Court”. This definitely appealed to the intelligence of a future day, as two years later, the US Congress passed the Lilly Ledbetter Fair Pay Act, 2009.

During her tenure in the Supreme Court, RBG also developed a close friendship with Justice Scalia, even though he was a conservative, and disagreed with her at an ideological level. Their opposite ideological viewpoints and disagreements on the Bench did not affect their personal equations. In fact, Justice Scalia had once jokingly remarked that the only thing he didn’t like about RBG was her reading of the law! Their friendship is a lesson for everyone in these polarized times, where we tend to hamper our personal equations with those who disagree with us ideologically.

From being denied clerkships and law firm jobs on account of her gender, RBG charted her own journey - by providing a new name to gender justice. Her vision of creating a better world for our daughters and granddaughters must be cherished, preserved and fought for. RIP. 

Remembering C.K. Daphtary - India's first Solicitor General

“The boy who wrote the best essay got the first prize”. Many of us would have come across this anecdote, where Chander Kishan Daphtary, India’s first Solicitor General, perfectly summarized the Indira Gandhi government’s decision to appoint Justice A.N. Ray as Chief Justice of India, by superseding 3 of the senior-most judges of the Supreme Court (Justices Shelat, Grover and Hegde). [A.N. Ray was rewarded for his ‘essays’, after he held in favor of the Government in the Keshavananda Bharathi case, and was also the only judge who upheld Indira Gandhi’s bank nationalization ordinance of 1969].

This is just one among the many sharp and memorable anecdotes from Daphtary’s career, where he served as independent India’s first Solicitor General (from 1950-1963), and succeeded M.C. Setalvad to serve as India’s second Attorney General from 1963-1968. After serving as Attorney General, he was also nominated to the Rajya Sabha in 1972. In fact, his one-line description of Justice A.N. Ray getting the ‘first prize’ for his ‘essay’ was made in the Rajya Sabha itself!

C.K. Daphtary, who was fondly known as Chandubhai, is still remembered for his sharp and witty one-liners in Court. Perhaps the most ‘savage’ of all his one-liners was when Daphtary was practicing in the Bombay High Court. Daphtary was appearing before a Bench headed by Justice Somjee, on a matter relating to stock exchange transactions. It was also well-known that Daphtary himself regularly dabbled in stocks.

Justice Somjee had refused to grant Daphtary permission to continue cross-examining a witness regarding a stock exchange transaction he had undertaken. When Daphtary persisted, Justice Somjee had remarked – ““Mr Daphtary, you will of course know all about stock exchange transactions”.

Daphtary did not react. A few moments later, a law report had to be passed by him to the Bench. As soon as the book was handed over, Justice Somjee remarked – “Mr. Daphtary, there is a bug in this book”. Daphtary immediately seized the opportunity and said – “My Lord, it is not the first time that a bug has travelled from the Bar to the Bench”. This was a sly remark at Justice Somjee himself, who had been elevated as a Judge from the Bar.

While there are many more witty anecdotes and one-liners, Mr. Daphtary’s memory lasts beyond his sharpness and sense of humour. He was also a man who stood by principles, some of which are relevant even today. Three such incidents from Daphtary’s journey bear utmost relevance even today.

A stern request asking Chief Justice Gajendragadkar to recuse

In 1965, two matters dealing with a cooperative housing society came before a Bench headed by Chief Justice Gajendragadkar. A bunch of intervenors from Bombay argued that Chief Justice Gajendragadkar should recuse himself, as he was a member of one of the cooperative housing societies, for which the Government of Bombay had acquired land. Initially, Justice Gajendragadkar stated that he would recuse himself only from one out of two matters, where he had an indirect interest. But, this was objected to C.K. Daphtary, who was then the Attorney General.

Daphtary categorically stated that Chief Justice Gajendragadkar should recuse himself from both matters, as he had a common indirect interest in them. The Bench was reconstituted the next day, and Justice Subba Rao was asked to preside. As Fali Nariman points out in his autobiography, Before Memory Fades, Daphtary stood up for principle and asked for Chief Justice Gajendragadkar’s recusal - even though there was a strong belief in the Bar that Chief Justice Gajendragadkar would decide in favor of the State, as his views on the legal questions involved were well-known.

Daphtary’s role in the constitution of the ADM Jabalpur bench

Daphtary also had an important role to play in the constitution of the bench that decided the ADM Jabalpur case in 1976, during the emergency. After Indira Gandhi’s proclamation of a national emergency in 1975, a number of political leaders and activists had been arrested under the infamous MISA – Maintenance of Internal Security Act, 1971.

Different High Courts had taken contrary views on whether fundamental rights (including the right to life under Article 21) can be suspended when a national emergency was declared. This was crucial, as if fundamental rights stood suspended during an emergency, anyone who had been detained would have no right to challenge his detention before the High Courts and the Supreme Court.

As 9 High Courts had held against the Indira Gandhi Government, the Government filed an appeal in the Supreme Court. There was a growing suspicion in the Supreme Court Bar that Chief Justice A.N. Ray (the boy who wrote the best essay and got the first prize) would constitute a bench of judges who would without doubt give their decision in favor of the Government. Daphtary, who was then the President of the Bar Association, approached Chief Justice Ray and suggested that as there was some concern in the Supreme Court Bar, a bench consisting of the 5 senior-most judges of the Supreme Court should be constituted.

Chief Justice Ray retorted - and asked whether there was ever an occasion where suggestions were made to the Chief Justice of India regarding whom to put on a bench. Daphtary was quick to the task, and responded that he does recall a previous occasion where Chief Justice S.R. Das was told about concerns regarding the composition of a bench, and S.R. Das never took it in the wrong spirit.

This struck the right nerve with CJI A.N. Ray, as S.R. Das happened to be his mentor! CJI A.N. Ray then went on to constitute a Bench with the 5 senior-most judges of the Supreme Court. However, Daphtary’s efforts obviously went in vain, as 4 out of 5 judges held in favor of the Government.

It was only Justice H.R. Khanna who dissented and held that even during a national emergency, fundamental rights cannot be suspended. This ‘essay’ also cost him the post of Chief Justice of India, as the Government superseded him and appointed Justice Beg. In an era where serious questions have been raised regarding composition of benches and assignment of politically sensitive cases to certain judges, even A.N. Ray’s reluctant approval of Daphtary’s request seems to look bright.

Daphtary’s views on the UAPA

Daphtary’s views on the UAPA are most relevant today, when the law is being used to muzzle political dissent. In October 1967, a Joint Parliamentary Committee was set-up to examine the Unlawful Activities (Prevention) Bill, 1967 (UAPA). This was the original draft of the UAPA, which did not deal with terrorist activities, and only penalized ‘unlawful activities’ that affected India’s territorial integrity and sovereignty. As Daphtary was the Attorney General, he was asked to depose before the Joint Parliamentary Committee.

Taking into account the overbroad definition of ‘unlawful activity’ that could be penalised, Daphtary noted that “these are drastic powers”, and that “the law was going as far as one could go”. In his view, the UAPA Bill was constitutional, but not ‘perfectly constitutional’. He also stated that while we may assume that powers granted by the UAPA would be exercised honestly and properly, we cannot say whether that shall always be the case.

Although Daphtary was to a certain extent ambiguous in his opinion, he has been proven correct in hindsight – as the UAPA today is only used against activists and protesters, who disagree with the ruling establishment. Even though the UAPA has been substantially amended since 1967 and terrorist activities have also been brought within its ambit, Daphtary’s views highlight how the law always had the potential to be misused – in the manner that we are witnessing today.

Along with his sharpness and wit, Daphary’s commitment towards rights and freedoms was also steadfast. In June 1975, after Indira Gandhi imposed the emergency, Daphtary was pained to see how High Court judges who decided against the Government were arbitrarily transferred. He told Fali Nariman – “Fali, what we need now is a Subba Rao”.

In fact, Fali Nariman has stated in his autobiography that the most important advice he ever received was from Daphtary, who told him – “Always remember, Fali, it is better to spend more time thinking about a case than merely reading the brief”. All of his words and actions continue to stand the test of time.

Patriots from a neighboring land - The Tibetan refugee community in India

As the military stand-off with China continues in Ladakh, India has received unflinching support from Tibetan refugees - who live in India under exile. In this piece, we will discuss the historical background behind Tibetans taking refuge in India, and why their contribution to India should be rewarded, instead of being ignored or sidelined.

Historical Background

India’s decision to provide homage to Tibetans goes back to the 1950s. In 1950, China invaded and annexed the then autonomous region of Tibet. Despite resisting the invasion with valour, the Tibetan army could not match up to the People’s Liberation Army (PLA) of China. After the invasion, China effectively coerced Tibet to sign an Agreement that would bring Tibet under the control of the Chinese Communist Party, and grant it a limited amount of regional autonomy.

After facing more than 8 years of repression from the Chinese establishment, a revolt erupted in Lhasa (the capital of the Tibetan region) in 1959. Tibetans flung the streets to protest for independence from China, and for the formation of a People’s Assembly. They also surrounded the Palace of the Tibetan God-king and spiritual leader – The 14^th Dalai Lama. This is because there was a brutal crackdown by the Chinese PLA, and the Tibetans feared that the Dalai Lama would be assassinated. On 12^th March 1959, thousands of women gathered on the streets to fight for Tibetan independence, and also approached the Indian Consulate in Lhasa to demand the help of the Indian Government. 12^th March is now recognized as Women’s Uprising Day in Tibet.

5 days later, the Chinese PLA fired 2 shells at The Dalai Lama’s Palace. This left the Dalai Lama with no choice but to prepare for an escape. At 3 AM on the next morning, the Dalai Lama and members of his family began their escape from Lhasa. The Dalai Lama disguised himself as a soldier, and was accompanied by Tibetan resistance fighters. Their goal was to safely reach the Indian border. During their journey, they caught up with other Tibetan resistance fighters who had been trained and supported by the CIA – the primary foreign intelligence agency of the United States.

The CIA-trained resistance fighters sent a radio message conveying Dalai Lama’s intention of reaching the Indian border to a US military base in Okinawa, Japan. This base had been occupied by the US during the concluding stages of World War II, and had not yet been handed back to Japan. The CIA then personally requested Prime Minister Nehru to grant asylum to The Dalai Lama, before he reaches the Indian border. After extensive deliberations within the Government, Nehru agreed, and welcomed the Dalai Lama. The Indian Government then decided to house the Dalai Lama in McLeodganj, in Dharamshala, Himachal Pradesh. Soon after The Dalai Lama’s escape, the revolt in Lhasa was brutally crushed by the Chinese PLA. But, despite this repression, Tibetans continue to fight for their independence from China even today.

Since 1959, The Dalai Lama has continued to reside in the Namgyal Monastery of McLeodganj, and has provided support to the struggle for Tibetan freedom. The Tibetan Parliament and government-in-exile is also based in Dharamshala, even as of today. Post India’s decision to grant asylum to The Dalai Lama, around 1 Lakh Tibetans have come to India over the years. They stay in regions such as Ladakh as refugees. As Tibetans practice Buddhism, the Tibetan refugees share cultural and ethnic similarities with the populations of Ladakh, and other Himalayan regions. While continuing to support the Tibetan demand for freedom, the Tibetan refugees have stated that they consider India as their ‘second-home’.

The 1962 India-China war and its aftermath

India’s decision to grant asylum to The Dalai Lama in 1959 came at a cost. This decision received severe backlash in the Chinese Communist Party. As Bertil Lintner points out in his book, China’s India War – Chinese Premier Zhou Enlai and Chairman Mao Zedong felt that India had provided tacit support to the Tibetan uprising in Lhasa. They had already made up their mind to ‘teach India a lesson’ - for granting support to the freedom movement and asylum to The Dalai Lama. This, according to Bertil Lintner, was among the prime reasons why China decided to go to war with India – when they got an opportunity in October 1962.

The war had been meticulously planned in advance, and contrary to popular belief - China did not go to war solely because it wanted to occupy Arunachal Pradesh or the Aksai Chin region, and settle the boundary dispute.

Even after India’s defeat in the 1962 war, Tibet has continued to occupy an important focal point in India and China’s military and diplomatic relations. Immediately after the war, the Indian Government set-up the Special Frontier Force (SFF), which was a covert military unit that recruited Tibetans living in exile as its soldiers.

The contribution of the Tibetan SFF and other refugees

The SFF also worked with the Indian army in the India-Pakistan war of 1971, which liberated East Pakistan to create the separate State of Bangladesh. During the 1971 War, Prime Minister Indira Gandhi sent a message to the Tibetan commandos, stating that while the Indian Government could not compel them to provide assistance in the war, they should remember that the Pakistan army’s genocide against Bengalis in East Pakistan was similar to the way in which the Chinese establishment had treated the Tibetans. Soon thereafter, Operation Eagle was launched, where the Tibetan SFF commandos helped in neutralizing Pakistani positions in the Chittagong Hill Tracts, and prevented Pakistan army personnel from escaping to Burma.

The role of Tibetan SFF commandos in India’s 1971 victory is an inspirational story – as they assisted India in a full-scale war even though they were only refugees, and not Indian citizens. Over the years, the SFF has taken part in covert operations in Operation Blue Star in the Golden Temple, and in the Kargil conflict. The SFF has also played a game-changing role in the current military standoff with China. They played a crucial role in India’s operation to capture certain unoccupied heights in the Chushul sector of eastern Ladakh. This operation was conducted between August 29 - 31, and as defence experts have pointed out – occupying these heights have given the Indian army a crucial advantage against the Chinese PLA.

One commando of the SFF, Subedar Nyima Tenzin also lost his life during one of these operations in eastern Ladakh. He had served in the SFF for 33 years, which highlights how members of the Tibetan refugee community have given their blood, soul and life for India, even though they only stay here as refugees. Other members of the Tibetan refugee community have also established small shops and undertakings of their own, in places like Ladakh. Amidst this standoff with China, and even otherwise, the contribution of this community should not be forgotten. India must remember the Tibetan sentiment – where members of the Tibetan refugee community staunchly consider India as their second home.

Despite the strong bond between India and the Tibetan community, the Indian Government has in the recent past tried to distance itself from the issue of Tibetan independence. This was done with the intention of ensuring stable relations with China. China states that Tibet is part of its ‘core interests’, and is hence non-negotiable. But on the other hand, China has refused to condemn Pakistan for sponsoring terrorist-activities in Kashmir. China has also refused to fully acknowledge the Indian Government’s stance that the Kashmir issue is to be resolved bilaterally between India and Pakistan. In fact, Shaksgam Valley, which is a part of Pakistan-occupied Kashmir (a disputed territory) – was gifted by Pakistan to China in 1963.

Moreover, China still continues to claim that Arunachal Pradesh is a part of China. The Chinese authorities still issue stapled visas to Arunachal Pradesh residents who visit China – on the ground that Arunachal Pradesh is nothing but Chinese territory that is occupied by India. If Tibet is China’s ‘core interest’, aren’t Kashmir and Arunachal Pradesh also core interests for India, which China should recognize? India must hence avoid falling into this kind of trap, and should continue to recognize and reward the Tibetan community for their love and valour.

Despite their stellar contribution to India, the Tibetan refugees were not among the communities that were eligible for fast-tracked citizenship under the Citizenship Amendment Act, 2019 (CAA), which was passed in December last year. A first step to recognize the efforts of the Tibetan refugee community is to make them eligible for fast-tracked citizenship, and grant them all the rights and privileges available to citizens. Instead of falling to Chinese pressure, the Government should take concrete steps to fulfill the needs and requirements of the Tibetans in India - who are equal patriots, belonging to a neighboring land.

As The Dalai Lama himself said – “I am a son of India, who has survived on dal, rice and roti”. 

Book Review: The Great Repression by Chitranshul Sinha | Guest Post by Sarthak Bhardwaj

 (In this post, Sarthak Bhardwaj reviews The Great Repression: The Story of Sedition in India by Chitranshul Sinha. Sarthak is a 3^rd year law student at Vivekananda Institute of Professional Studies, Delhi). 

The Great Repression, by Chintranshul Sinha, chronicles the 150 year-old story of sedition in India. The law of sedition is a hotly contested issue and much has been said about it over the years - that it is colonial, oppressive, draconian, against free speech, and so on. One might naturally ask, how did we get here, and what is the road ahead? In answering these questions, Chintranshul Sinha takes the reader on a socio-legal history of India, starting right from the establishment of the first East India Company factory in Surat in 1613.

The book covers three spheres. It discusses sedition’s origin story, its early life during the British Raj, and then in independent India. The first part tells how the emergence of sedition (and, in fact, the entire penal code) is proximately linked to the revolt of 1857. After managing to quell the uprising, administrative control and power was transferred from the East India Company to the British Crown. 

This hastened the process of codification of Indian criminal laws. The Indian Penal Code was formulated in 1860, but Section 124A (the provision governing sedition) was inserted only in 1870. The most immediate need for this insertion, Chintranshul Sinha suggests, arose because of the Wahhabi Movement, which aimed to overthrow the British government.

The Indian Wahhabi movement, started by one Syed Ahmed, was initially against the Sikh empire in northwest India. However, when the British defeated the Sikhs, the movement took shape of a radical anti-British movement in India.  In 1863, the Britishers unearthed a conspiracy to supply money and ammunition to the Wahhabis to fight the British in the North Western Frontier Province. This led to the trials of some notable Wahhabi leaders. Thereafter, a need was felt by the British government to amend the Indian Penal Code (IPC) and provide for seditious offences.

The second section of the book enumerates how sedition evolved in its early life. Here, Chintranshul Sinha familiarises the reader with the legendary trials of Bal Gangadhar Tilak, Gandhi, Nehru, Azad, and the rest. It is observed how the Raj used sedition as a tool to stifle dissent and liberty of their subjects. Mahatma Gandhi’s trial exemplifies it best. His arrest was the result of four articles published in his magazine - Young India. The articles were considered to be incendiary by the Raj, for they supported the Khilafat Movement and exhorted Indian sepoys to quit serving in the British army.

Interestingly, Gandhi, without engaging a lawyer, pled guilty to the charge and refused to call any witnesses to testify in his defence. Gandhi, during his trial, submitted to Judge Broomfield, that he must first consider whether the law of sedition was evil and punish him with the severest penalty if he found that it was not. He called upon the judge to resign and dissociate himself from evil if he found otherwise. The offence of sedition - at that time - criminalized the mere promotion of disaffection against the government. It is known that Judge Broomfield held Gandhi in high regard, and therefore was reluctant to punish him.

However, it was accepted that Gandhi was no ordinary leader, and that his political teachings possessed a capability to spark violence amongst the masses. Thus, Gandhi was sentenced to six years of simple imprisonment. At the same time, Judge Broomfield expressed hope that the British government would reduce the sentence in the future. And, this is how Gandhi’s legendary trial came to an end. Lasting only for a glorious hundred minutes!

The third segment studies the position of sedition in modern Indian history. One would reasonably believe that an undeniably repressive law like sedition - responsible for the incarceration of the most prominent figures of the Indian independence movement - would  promptly be rejected by the framers of our Constitution. The reality, however, tells a different story. 

Leaders like Sardar Patel and C Rajagopalachari advocated for the retention of seditious speech. This inclusion was vehemently opposed by Somnath Lahiri, and finally the word ‘seditious’ from the proviso of Clause 8 of the draft interim report on fundamental rights was omitted. Despite passionate debates on freedom of speech and expression, the notorious Section 124A continued to find a place in our statute books.

There were some early attempts to decriminalise sedition by the courts, notably by the Punjab and Haryana High Court in the Tara Singh Gopi Chand case. But, in 1951, the Nehru government revalidated sedition by making it a reasonable restriction under Article 19 (2) – through the First Amendment to the Indian Constitution.

The author also succinctly discusses landmark cases like Kedar Nath Singh, Balwant Singh, and Bilal Ahmed Kaloo to reaffirm the prevailing and settled position of sedition, i.e., to attract punishment under Section 124 A of the IPC, incitement to violence or public disorder (and not merely promoting disaffection towards the government) is required. However, sedition still marks a great imbalance of power between the individual and the State, and is a tool of oppression in the hands of the government.

As Chintranshul explains, arrests under this provision are seldom in accordance with the prevailing position of law. For instance, sedition charges are slapped for celebrating a neighbouring country’s victory in a cricket match, for refusing to stand during the national anthem or for publishing satirical cartoons. It is interesting, therefore, to note that the book opens with a prescient word of caution from Justice D.Y. Chandrachud. The book, quoting Justice Chandrachud says, “the Constitution fails when a cartoonist is jailed for sedition.”

The book, thus, makes a strong case for the repeal of Section 124A - as has already been done in UK - the country of its origin. The Great Repression acts as an excellent primer in understanding the history of sedition in India. Despite its intensive legal content, the book is readable and can quite easily be understood by those outside the legal fraternity. The Great Repression is a riveting tale of where this (now) antiquated law came from, its evolution, and place (if any) in the world’s largest democracy.

The year after 5th August 2019 - Perspectives from Ladakh

While we discuss the constitutional changes made to Jammu & Kashmir on 5^th August 2019, we often tend to forget about Ladakh – which was carved out as a separate Union Territory. In this post, Nasima Abida and Stanzin Chosdon, two students who are natives of Ladakh, share their thoughts on what they feel about the abrogation of Article 370 and 35A, and the conversion of Ladakh into a separate Union Territory (UT).

Nasima Abida, who is currently pursuing law at GNLU Gandhinagar, shares her account of what she feels about the constitutional changes made last year:

“Initially, there were mixed reactions from the people with regard to the grant of a UT status - since this had been a long-standing demand of certain sections. But, within a short period of time, disappointment could be sensed among the people as the UT of Ladakh was not granted a Legislature. One year after Ladakh was envisaged as a UT, all the enthusiasm and anger has now dissolved into anguish of a bleak Ladakhi future. The unilateral declaration of Ladakh as a UT without Legislature, sans any discussion and deliberation with the locals has made them feel jettisoned.

The control of the Ladakh Autonomous Hill Development Council - which is responsible for governance at the grassroots level - has been subverted and sidelined by the UT Administration. The UT Administration now reports only to the Lieutenant Governor and the Home Ministry. The districts of Leh and Kargil have a separate Autonomous Hill Development Council. Earlier, these two councils enjoyed independence in financial matters to an extent, and now that power has been transferred to the Centre and the UT administration directly.

Apprehensions prevail among the Ladakhi youth for job security and employment. We think that the tall promises made while creating the UT have not been accomplished. Rather, it has dismayed the people, especially the Ladakhi youth, as there are limited job opportunities. For precisely this reason, there are demands being made for the creation of a separate Public Service Commission for Ladakh.

We, as Ladakhis, fear the outsourcing of employees from outside Ladakh - without incorporating sufficient safeguards for local employees. In May this year, around 100 doctors were recruited from outside Ladakh - even though these posts could be absorbed by the local doctors. Many outsiders did not join their posts, owing to which the Government had to re-issue a notification.

Furthermore, unplanned infrastructure development is severely affecting the fragile environment of Ladakh - which we cannot afford in the long run. Increase in population and urbanization are bound to happen - but this may be at the cost of Ladakh’s ecosystem. Some senior BJP leaders along with the Ladakh BJP President have resigned, as there is no room for members of the Hill Council and other public representatives to function.

Ladakhis are facing uncertainty and vulnerability in terms of constitutional safeguards. We have apprehensions with regard to job security, political representation, domicile protections, and safeguards with respect to land”.

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Stanzin Chosdon, a 2^nd year student at Delhi University, tends to agree, and shares her account below:

“It has been exactly a year since the abrogation of Article 370 and 35A - which stripped off the erstwhile State of J&K of all the special powers bestowed during J & K’s accession to India. A majority of people in Ladakh wholeheartedly welcomed the creation of a separate Union Territory. This is because we have always been less of a priority when it comes to allotment of aid, and have often been sidelined.

Personally, the news shook me to my core. I couldn’t stop myself but ponder over the disastrous consequences in the near future. After the changes made on 5^th August, land would be accessible to residents all over India, who can now purchase the land from locals.  A fragile ecosystem like Ladakh can in no way sustain and cater to a large population, if there is an influx of people from outside Ladakh.

Along with this, water shortage has always been an issue in this region. It poses a great threat to the indigenous people, and to our culture and heritage. Unlike the Union Territory of J & K, Ladakh does not have a separate Legislature. There is hence no way through which we can have our own elected representatives, who can voice our concerns.  Nobody but a person who belongs to this region can represent the people righteously and justifiably. As we don’t have a voice before the Legislature now, nobody can empathize with our needs, and give voice and credence to our opinions.

We, the people of Ladakh were promised job opportunities and elevation of Ladakh to ‘new heights of economic development’. But sadly, they couldn’t deliver on their promises. Until now, I have not witnessed any constructive change as such, post 5^th August 2019. Due to the onset of the Covid-19 pandemic in March, this may be too short a timeframe.  But, let us hope our voice is heard and our concerns are taken on board”.

As Nasima and Stanzin’s account shows us, the people of Ladakh have several unaddressed concerns, which range from safeguarding jobs for locals, to maintaining the delicate ecological balance of the region. The absence of a Legislature, and the crippling of the autonomy of the Hill Development Councils has made it extremely difficult for the residents to voice their concerns.

After a new domicile reservation policy was notified for J & K, demands were also made for a similar policy in Ladakh – which would safeguard jobs for locals. Despite multiple demands, no such policy has been notified till date. This serves as an epitome of how Ladakh has now been placed solely at the Home Ministry’s mercy. In this time of anxiety and apprehension, let us hope that along with the Jammu and Kashmir regions, the voice of Ladakh is also heard – loud and clear.

The road ahead for J & K and Ladakh - A Conversation with Zaid Deva

 In our previous two posts, we discussed the Constitutional changes made in J & K on 5^th August last year. In this post, Zaid Deva shares his thoughts with me on the road ahead for Jammu, Kashmir and Ladakh. Zaid is a 2020 graduate of GNLU Gandhinagar, and a resident of Srinagar. Our discussion has been transcribed below in a conversational format.

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Varun Kannan: What was your first reaction when you heard about the changes that were being proposed in Parliament last year? Personally speaking, it took me a lot of time to digest the magnitude of the Constitutional changes that were proposed, and the manner in which they were brought about.

Zaid Deva: 5th August 2019 was the first day of my final year at GNLU. I had arrived in Gujarat on the 4^th of August, in the midst of mounting concerns for the future of our State in light of the troop buildup and restrictions. Little could any of us flying from Srinagar airport have known that the Kashmir we were leaving would be lost and laid siege to in another few hours.

It would be too mild an expression to say that I was shocked upon hearing what had happened. As Shah Faesal later pointed out in an interview, ‘[after 1953 and 1987] it was our generation which had got a taste of betrayal from the Indian State’. For each generation now, there is a story of betrayal. People still mourn the loss of what was taken away, and fear what the future holds.

Initially, like everyone else, I thought that the Modi government had done something new in terms of the nature and magnitude of the changes that were made or the methods that it employed. But as I read more, I found that there was actually nothing novel about the move, and that Modi had only followed the footsteps of his predecessors – Article 370 was altered through Article 367 before as well, when the position of the ‘Sadar-e-Riyasat’ was changed to the office of the Governor, in 1965.

The Indian Constitution had also been applied in its entirety in 1964 through a Presidential Amendment Order (albeit retaining the modifications that were present in the Presidential Order of 1954).

The propaganda that was unleashed before 5^th August was along the lines of - ‘everything was normal’ and there was ‘no need to panic’; and on 5^th August, the narrative suddenly shifted to the ‘new era of peace, prosperity and development’ that the abrogation of Article 370 would usher in.

This was reminiscent of the events leading up to and after Sheikh Abdullah’s dismissal as Prime Minister of J & K in 1953 - when Nehru assured the general secretary of the National Conference on 8^th August 1953 that ‘there was nothing to worry’. Next day, on 9^th August 1953, in a New Delhi engineered coup, Sheikh was dismissed from office and subsequently arrested. With full backing of New Delhi, Bakshi Ghulam Mohammad announced large scale developmental programmes and economic concessions sounding the death knell for the Sheikh’s ‘self-sufficiency’ policy.

Its evident that the approach of the Indian government towards J & K has not changed. If 1953 could not resolve the Kashmir dispute, it is unlikely that 2019 will.

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Varun Kannan: Before any of the changes were made, the voice of the residents of J & K was not taken on board in any manner. Then, during the course of the year, it became very difficult for the residents to express their views because of the strict curfew, and the ban on communication networks. As some of these restrictions have been eased partially, what roadmap should be followed for the year ahead?

Zaid Deva: When we discuss the possible roadmap for Jammu, Kashmir and Ladakh post abrogation of Article 370, history has many lessons for us.  

The accession of the Princely State of Jammu & Kashmir to India in October 1947 must be seen in the correct context. Along with J & K, Mayurbhanj, Hyderabad and Junagadh had also not joined either India or Pakistan after partition. Hyderabad and Junagadh had a Hindu majority population and a Muslim ruler. On the other hand, J&K had a Muslim majority population (around 80%) with a Hindu ruler.

If we apply Muhammad Ali Jinnah’s two-nation theory, and as a logical conclusion after Hyderabad and Junagadh joined the Indian dominion - J&K should have acceded to Pakistan. But, the J & K National Conference headed by Sheikh Abdullah had rejected the two-nation theory and later on supported J&K’s accession to India. So, even though the Instrument of Accession was signed by Maharaja Hari Singh, credibility was lent by Sheikh Abdullah’s endorsement. The accession was, of course, envisaged to be ratified by way of a referendum.     

Assuming there were no infirmities with the Instrument of Accession as executed by the ruler (the J&K Plebiscite Front’s White Paper described the ruler at the time of accession as a ‘lame duck’)[1] – the Instrument of Accession only vested the Indian Government with competence to legislate on three subjects i.e. defence, communications, and foreign affairs. For all other matters, J&K was envisaged to have complete autonomy.

The final draft of Article 370, as passed by the Constituent Assembly, was in itself a dilution of this condition - as it envisaged extending the federal jurisdiction to the non-acceded subject matters as well, based on ‘concurrence’ of the state government (we have seen how this was exploited later on). This was not present in the initial drafts of Article 370 prepared by the government of J & K, which sought to restrict the Constitutional relationship to the 3 subjects mentioned in the Instrument of Accession.  

The J&K Constituent Assembly was convened in 1951 to draft a Constitution for the State and determine the federal jurisdiction, among other things. A year before, in 1950, the first presidential order was passed under Article 370 - which applied provisions of the Indian Constitution corresponding to the subjects specified in the Instrument of Accession. It is worth pointing out that citizenship provisions were not applied i.e. the people of J&K were not yet citizens of India. The customs barrier between India and J&K still remained. The 195o Order was largely in compliance with the Instrument of Accession.

The autonomous status’ erosion by abusing Article 370 (and not the provision’s erosion itself) started as soon as Sheikh Abdullah was dismissed in 1953 - beginning with the enactment of the 1954 Order which applied almost all of the entries from the Union List. The J & K Constituent Assembly adopted the Constitution in 1956 and was formally dissolved in 1957. Many members boycotted the assembly arguing that it had lost its democratic legitimacy and representative character after Sheikh’s dismissal.

Even after the dissolution of the J & K Constituent Assembly, many Presidential Amendment Orders were passed which applied almost all consequential provisions of the Indian Constitution to the State. By 1964, the entire Indian Constitution as it existed then had been applied. The Instrument of Accession, Article 370 and the Delhi Agreement of 1952 were all disregarded in this process.  By 5th August 2019, Article 370 was nothing but an empty shell, or a husk.

The reason for mentioning the historical background is to show that the Constitutional relationship of J &K with India has been shaky, if not on dubious foundations - even when we assume that the Instrument of Accession was perfectly valid. The 2019 Orders only add insult to injury – an illegality mounted on another illegality.

The future indeed is bleak. So, when we talk about what we should demand in the near future – simply stating that the pre-5th August position should be restored is not enough. The Congress has aligned with the BJP in demanding restoration of statehood – which really is no demand as this is already on the agenda of the BJP-led government.

The local political parties must form a united front against this new phase of Indian aggression and demand restoration of the autonomous status as it existed in 1950, if not the 1947 position. In the long term, steps should be taken to demilitarize Kashmir and attempts made to fulfill the long-broken promises. But, this is only possible when there is a change in policy. 1953, 1987, and 2019 are outcomes of the same mindset. As long as India views J & K as a security concern which must be dealt with militarily and by employing underhanded tactics, there will be no resolution. 

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Varun Kannan: Coming to the issue of identity – is that not the biggest fallout of the Centre’s decisions? As a resident of J & K, what would you say regarding this feeling of alienation and betrayal?

Zaid Deva: With great hopes and expectations, J & K had acceded to India. But, as Sheikh Abdullah laments in his autobiography, Aatish-e-Chinar – “instead of treating us as comrades, they [the Indian leaders] tried to dominate us and interfered in our internal affairs”. He goes on to say that ‘Nehru was influenced by Machiavelli’s doctrines and practiced them with us in Kashmir’.[2]

Somehow, everyone who’s ever supported India has been disillusioned later. From Sheikh Abdullah to even Bakshi Ghulam Mohammad. After his premiership, Bakshi is reported to have signed with his blood a certain vision document prepared by Maqbool Bhat. Like I said earlier, it is our generation’s turn for betrayal and disillusionment.

On identity, I am reminded of what one of my professors told me later in the day on 5^th August last year, that ‘a people’s identity cannot be circumscribed by an article of a Constitution’. But to answer your question, yes, there is a sense of loss of identity after abrogation of Article 370. This has been exacerbated by issuance of domicile certificates to erstwhile non-permanent residents, under the new domicile policy that was notified in April by the Home Ministry.

This feeling of a loss of identity is not restricted to J & K, but also extends to Ladakh. Recently, the President of the Ladakh Unit of the BJP had resigned, and this was not even covered in the mainstream media. The Kargil units of Congress and the National Conference have also demanded reintegration with J & K. The status of permanent resident-ship under the State Constitution and Article 35A of the erstwhile Indian Constitution as applicable to J & K substantively guaranteed better protections. The new domicile rules of course do not offer similar protections.

With each passing day, it is becoming clear that the 5^th August misadventures were aimed at appeasing BJP’s Hindu votebank and altering the demography of the erstwhile State. 

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Varun Kannan: Coming to Article 35A, do you think the Government had a strong justification to abrogate it?

Zaid Deva: There is a good amount of misconception surrounding the scope and ambit of Article 35A. Article 35A was not a power-conferring clause. The power to define permanent residents was derivable from the J & K Constitution. Article 35A merely embedded in the Constitution what was agreed to between Nehru and Sheikh Abdullah in the Delhi Agreement. The provision was under challenge before the Supreme Court as well.

Suppose it had been struck down by the Supreme Court, or if the Indian government had repealed it by way of an amendment order, the rights of permanent residents would not have disappeared automatically. The only question then, that the Supreme Court would have been called upon to answer is this: whether the rights of permanent residents emanating from the state Constitution gain precedence over the fundamental rights of Indian citizens who are non-permanent residents?

One of the justifications given for abrogating Article 35A was that it deprived West Pakistani refugees from getting the status of a ‘permanent resident’ of J & K. But, this was not due to Article 35A – as Article 35A itself does not define who a ‘permanent resident’ is, as I pointed out above. Hence, if denial of permanent residency for West Pakistani refugees was a problem, that could have been rectified without abrogating Article 35A.

Another justification was that the special laws enacted for permanent residents prevented women from marrying outside the State, as that would lead to the woman losing her permanent resident rights. But, even this was not true, as the J & K High Court had clarified in a 2003 decision that a woman marrying a non-permanent resident does not lose her permanent residency status.

I believe the debate on Article 35A was engineered in a way which would lay the groundwork for 5^th August. The petitions challenging the provision in the Supreme Court is a case in point (one of the petitions was filed by a BJP leader, another by an NGO, which one writer described as ‘RSS inspired’). That’s why doing away with the State Constitution became necessary - to obliterate notions of a distinct identity, and to allow the government to change the demography of J&K unfettered.  

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Varun Kannan: Another change made was the repealing of J & K’s separate Constitution. As per Section 147 of the erstwhile J & K Constitution, even the Legislative Assembly of J & K did not have the power to repeal this Constitution in its entirety. Parliament also did not have the power to amend this Constitution. Doesn’t that automatically make the ‘repeal’ of the separate Constitution unconstitutional?

Zaid Deva: Its unclear to me what the status of the J&K Constitution is, post the abrogation of Article 370. A Constitution which enjoys the sanction of a Constituent Assembly cannot be nullified by a Presidential Order or a statutory resolution. We must remember that this Constitution was independent of Article 370. Its presence or absence did not hinge on Article 370 - as it was framed and adopted by the Constituent Assembly of J & K. Since the Constituent Assembly did not in any way derive its authority from Article 370, linking the State Constitution to Article 370 is fallacious.

I think it is more appropriate to say that the State Constitution has been rendered irrelevant, or has been superseded by the application of the Indian Constitution. The new Article 370 states that all provisions of the Indian Constitution shall apply to J&K - ‘notwithstanding anything to the contrary in the Constitution of J & K’.

‘Abrogating’ the separate Constitution has more to do with the Government’s stated objective of “One Nation, One Constitution, One Flag”.

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Varun Kannan: Was this narrative of “One Nation, One Constitution, One Flag” meant to fit in with the Government’s claim of having ‘completely integrated’ J & K with the rest of India?

You also mentioned in the beginning that even before 5^th August 2019, Article 370 was an empty shell or a husk, and had almost been eroded in its entirety. So, in conclusion, what exactly has the Government achieved by amending Article 370?

Zaid Deva: This narrative of “One Nation, One Constitution, One Flag” represents a very regimented vision of nationhood.

In fact the promise of ‘One Constitution’ has still not been achieved. Under Section 13 of the J & K Reorganization Act, Article 239A of the Indian Constitution has been applied to J & K. Under this Article, the Parliament can make a law for establishment of the Union Territory; and even if the provisions of such a law have the effect of amending the Constitution, it shall not be treated as an amendment in terms of Article 368. If before August 2019, the Indian Constitution as applicable to J & K could be amended by an executive order, now it can be amended by an ordinary exercise of law-making.  

At least as far as Article 370 is concerned, the Government’s claims of repealing it for ‘complete integration’ of J & K were nothing more than symbolic or ideological. I think the biggest loser after the abrogation of Article 370 has been the Indian State. It is unlikely that those, however little they may be in terms of numbers, who supported J&K’s accession to India (or had largely settled with the status quo), will accept the new political realities. The ruthlessness with which Article 370 was abrogated only went on to prove what the detractors of J & K’s accession to India had been arguing for long.

The dismissal of Sheikh Abdullah’s Government in 1953 defined the course of events for the next 20 years or so. After 1953, it was a new generation in 1987 which was betrayed leading to the insurgency lasting up till the turn of the century. Those who had come to believe in the institutions of Indian democracy - their beliefs were shattered with the brazen rigging in elections. I am afraid we might be witnessing the beginning of a new phase of violence after 5^th August 2019.

I would like to thank Zaid for expressing his views so candidly. Zaid has also written a paper on this issue - where he has inter alia argued that the autonomous status of J&K inheres in the State, as the J&K Constituent Assembly designed the State’s Constitutional relationship with the Union.

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[1] A G Noorani, Article 370: A Constitutional History of Jammu & Kashmir (Oxford University Press 2011).

[2] Sheikh M Abdullah, The Blazing Chinar (Penguin India 1993) (translated by Khushwant Singh).