Abuse of Article 370 in Jammu and Kashmir

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

Published : Aug 02, 2017 12:30 IST

State Finance Minister Haseeb Drabu addressing the Special Session of the Legislative Assembly held to pass the Jammu and Kashmir Goods and Services Tax Bill, in Srinagar on July 7.

State Finance Minister Haseeb Drabu addressing the Special Session of the Legislative Assembly held to pass the Jammu and Kashmir Goods and Services Tax Bill, in Srinagar on July 7.

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

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

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

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

Also Read: Kashmir’s endless agony


Assembly resolution

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

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

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


Omar Abdullah, National Conference vice president.

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

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


‘Surrender of exclusive powers’

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

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

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

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

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

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

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

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


S.P. Mookerjee’s plans fulfilled

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

Also Read: History of betrayals

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

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

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

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

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


Need for concurrence

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

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

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

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

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

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

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


Inferior status vis-a-vis other States

To repeat, the State is put in a status inferior to that of other States. One illustration suffices to demonstrate this. Parliament had to amend the Constitution four times, by means of the 59th, 64th, 67th, and 68th Constitution amendments, to extend President’s Rule imposed in Punjab on May 11, 1987. For the State of Jammu and Kashmir, the same result was accomplished, from 1990 to 1996, by mere executive orders under Article 370. 

Another gross case illustrates the capacity for abuse. On July 30, 1986, the President made an order under Article 370 extending to Kashmir Article 249 of the Constitution in order to empower Parliament to legislate even on a matter in the State List on the strength of Rajya Sabha resolution. “Concurrence” to this was given by the Centre’s own appointee, Governor Jagmohan. G.A. Lone, a former Secretary, Law and Parliamentary Affairs, to the State government described in Kashmir Times (April 20, 1995) how the “manipulation” was done “in a single day” against the Law Secretary’s advice and “in the absence of a Council of Ministers”. 

Lone wrote: “As Secretary to Government, Law Department, it was stunning to discover that during his first stint as Governor in July 1986 when the State was put under Governor’s rule, Mr Jagmohan by sheer manipulation got Article 249 of the Constitution applied to the State. The relevant record in the Law Department bears mute testimony to the fact how the then Secretary Law was made to change his stand on its application under the dictates of the Governor. The proposal itself was initiated on 30.7.1986 in an unprecedented manner on the basis of undisclosed press reports. About the proposal, the Law Secretary pointed out that the application of Article on the concurrence of the Governor acting without the aid and advice of the Council of Ministers is impermissible. The ink of this opinion may have hardly dried up when on the same hour of the day he was made to support the proposal facilitating the granting of the concurrence by the Governor to the application of the aforesaid Article to the State. The whole exercise was completed in a single day and reeks of intrigue to dilute the constitutional status of the State in a high-handed manner. It was indeed a grave constitutional impropriety not only because the manner and method employed in applying the constitutional provision was dubious but also because the Governor in the absence of a Council of Ministers is not competent to grant such concurrence and change the constitutional framework. The concurrence granted was a clear breach and violation of Article 370 of the Constitution.” ( Kashmir Times , April 20, 1995). An Explanation in Article 370 itself defines the State government to mean its Council of Ministers. 

Yet the President’s Order of July 6 states explicitly that it is made “with the concurrence of the Government of the State of Jammu & Kashmir”. It is, therefore, utterly invalid on the very face of it. The Assembly’s Resolution purported to authorise it to accord its concurrence in quaint language (“may”). The Resolution has no legal effect. The Legislative Assembly is a creature of the State’s Constituent Assembly. It cannot replace that body.


Effort at deception

The Resolution was passed to pull the wool over the eyes of the people. A similar effort at deception is made in the manner in which the State government published the Order. Both the online text and the one published in Greater Kashmir of July 8 contain identical emphases; the former in bold lettering, the latter in red. It bears the impress of the smart alec of Kashmir, Shriman Haseeb A. Drabu; always too clever by half. The proper course was to publish a White Paper with a detailed official analysis. 

Consistently enough the Order begins with a deceptive overriding provision. Paragraph 1(3) says: “Notwithstanding anything contained in this Order, the powers of the State of Jammu and Kashmir as per Section 5 of the Constitution of Jammu and Kashmir, shall remain intact.” It is repeated in Paragraph 2(3): “The legislature of State of Jammu and Kashmir shall have exclusive powers to make laws in respect of imposition of any taxes as enabled by Section 5 of the Constitution of Jammu and Kashmir.”

But immediately preceding it is Clause 2 which says plainly enough for all to read: “Parliament has exclusive power to make laws with respect to goods and services tax where the supply of goods, or services, or both takes place in the course of inter-State trade or commerce.” So what is left of the State legislature’s power under Section 5 of its Constitution? 

Also Read: Myths and falsehoods

Read the much-vaunted Section 5 of the State’s Constitution, and the sleight of hand becomes apparent. It simply says: “The executive and legislative power of the State extends to all matters except those with respect to which Parliament has power to make laws for the State, under the provisions of the Constitution of India.” It is a residuary provision. Since Drabu himself exclaimed that 94 of the 97 entries of the Union List have been extended to Kashmir, the residue which Section 5 proposes to protect is completely wiped out. Incidentally, 260 of the 395 provisions of India’s Constitution were also extended to Jammu and Kashmir, all by perverting Article 370. Neither the Union nor the Concurrent List applied to Jammu and Kashmir. Only those three subjects were given to the Centre initially. 


Taxation powers

Under the Constitution of India, sales tax is a State subject (List II, 54) except for taxes on the sale or purchase of goods in the course of inter-State trade. But Article 286 barred it subject to qualifications. Article 286 did not apply to Jammu and Kashmir. In 1956, Entry 92-A was inserted in the Union List to enable Parliament to impose taxes on sale or purchase of goods in the course of inter-State trade. This did not apply to Jammu and Kashmir either. Now, the Constitution 101st Amendment 2016 removes all the qualifications in Article 286 and bars the States from imposing taxes on goods or services in the course of inter-State trade. It is now applied to Kashmir under Paragraph 2(2) of the President’s Order

Article 279-A of the 101st Amendment establishes a GST Council of which the Union and all the States will be members. It makes “recommendations” under clauses 4 to 11. Clause 12 says: “Notwithstanding anything contained in clause (4) to clause (11), for the purpose of any decision impinging on the constitutional provisions relating to the State of Jammu and Kashmir, the concurrence of the representative of the State of Jammu and Kashmir in the Goods and Services Tax Council shall be mandatory and the procedure provided under Article 370 shall be followed.” Pray who will decide whether or not a decision or recommendation of the GST Council impinges on Article 370? Clause 13 applies, “Nothing in this article shall affect in any manner whatsoever the legislative competence of the State of Jammu and Kashmir as guaranteed by virtue of Section 5 of the Constitution of Jammu and Kashmir.”

A carte blanche is given to the Centre in what is known as the Henry VIII Clause. Paragraph 20 of the Order says: “Subject to the provisions of Article 370, if any difficulty arises in giving effect to the provisions of the Constitution as amended by this Constitution Application Order (including any difficulty in relation to the transition from the provisions of the Constitution as they stood immediately before the date of issuance of this Order), the President may, by Order, make such provisions, including any adaptation or modification of any provision of the Constitution as amended by this Act or law, as appear to the President to be necessary or expedient for the purpose of removing the difficulty : Provided that no such order shall be made after the expiry of three years from the date of such assent.” 

What does “Subject to Article 370” mean here? When wide powers are given to the President, that is, the Central government? It is empty qualification twice over; for, Article 370 itself has been emptied out. In this instance, who will decide that Article 370 applied to the President’s Order under Paragraph 20? Simply put, all these three provisions—Clauses 12 and 13 and Paragraph 20—contain mere exhortations. Do not “impinge” on constitutional provisions, and respect Article 370. They contain no safeguard if these window-dressing assurances are violated by the Centre. What remedy will Kashmir have in that event? Go to the Supreme Court and get snubbed, once again? Can it walk out of the GST regime?

Once abuse of Article 370 is legitimised (“concurrence of the State government”) it matters not if it is cited ritually.

The PDP’s descent The PDP’s descent to its present all-time low has not touched the nadir of its fall given its past record. The milestones on its treacherous path are striking. 

1. October 2008: “The Self-Rule Framework for Resolution.”

2. 2014: “An Aspirational Agenda”, manifesto for the 2014 Assembly election. It promised to “pursue self-rule”, use Article 370 itself to “ restore the original special status of the State”, and “restore the powers of the State Assembly”. 

3. “Agenda of the Alliance ” with the BJP, March 2015. “The present position will be maintained on all constitutional provisions pertaining to J&K, including the special status in the Constitution of India.” The latter part was meant to hoodwink the electorate with a reference to the husk of Article 370. The operative part is maintenance of the status quo, the hollowed Article 370. 

4. July 2017: Even that, the status quo, is now abandoned. The status quo is undermined by the President’s Order under Article 370, on July 6, 2017, to which the PDP concurred. The terms of its concurrence had been drafted in New Delhi. How low can the PDP sink? It promised to defeat the BJP’s move to form a government in Jammu and Kashmir. But helped it accomplish just that, betraying all its pledges to the people for the loaves and fishes of office.

Drabu was the draftsman of all the PDP documents. The man did just what he was told to do to keep his job. His record is well known. Blame the Muftis first. As Aneurin Bevan said of Foreign Minister Selwyn Lloyd after the Suez debacle as he saw the Prime Minister enter the House: “Why should I question the monkey when I can question the organ grinder?”

Contrast this with the record of the Chief Minister of the Tamil majority Northern Provincial Council of Sri Lanka. The Chief Minister, C.V. Wigneswaran, a former Judge of the Supreme Court, was fielded in the 2013 election by an amalgam of four Tamil parties. The Tamil National Alliance won a massive mandate with 30 seats. He has boldly, consistently, espoused the Tamil cause with Sri Lanka’s government. It had honestly held a free and fair election unlike successive governments of India.

Free elections yield men like the Chief Minister. Mehbooba Mufti shamelessly presides over a regime on whose watch over 10,000 civilians were injured by pellets and over 1,000 were hit in the eyes, many losing their vision. Since 1953 Kashmir has been governed by monkeys who perform to the tune set by their organ grinders in New Delhi; all the while they munch on the peanuts of power thrown at them and feast on the miseries of their oppressed people. The Centre’s bribes and spies do the work.

There is a leadership vacuum. The separatists have little hold on the populace which tends to lead them. In a brilliant article in the respected weekly Kashmir Life of July 2, Muhammad Tahir writes “Avoid Mob Takeover”, the title of the article. But let alone the Modi regime and its agent, Mehbooba, most of the Indian Establishment shows no understanding let alone empathy for the people. Deceived continuously, the people have become assertive and resourceful. They can neither be crushed nor betrayed with a kiss any longer. 

A.G. Noorani is an author and a lawyer based in Mumbai.
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