Siddharta Varadarjan on Article 370

Siddharth Vardarajan- true patriot that he is (he being an American citizen)- has offered his thoughts on Article 370 in an column in the Wire.

Since Article 370 is listed as a “temporary provision”, some people imagine it is not a basic structure of the constitution and can thus be done away with. The fact is that yes, it could have been done away with — but only by the J&K constituent assembly, which chose not to do so, thus rendering it permanent.

That assembly ceased to exist in 1957. It had no power to make anything permanent in the Indian Constitution which permits Presidential Orders, subject to judicial review, making substantive changes in the applicability of Indian law to J&K.

The Govt. of India may choose to believe that it is necessary to create a Constituent Assembly for J&K for the purpose referred to. But no Indian administration has chosen to do so. Instead it has been an established practice to amend the original Presidential order of 1954 such that Indian law applies to J&K. President Kovind has used Article 370 to supersede that Presidential order.

Varadarajan, with typical fatuity, justifies his notion that J&K is sovereign by appealing to a book published in 2011, five years before the Indian Supreme Court  'set aside a judgement of the High Court of Jammu and Kashmir which stated that Jammu and Kashmir had "absolute sovereign power" on account of Article 370. The Supreme Court held that the state of Jammu and Kashmir has "no vestige" of sovereignty outside the Constitution of India and its own Constitution is subordinate to the Indian Constitution.' (Vide State Bank of India v. Santosh Gupta and Anrs)

According to the constitutional expert A.G. Noorani, who has edited the definitive book on Article 370, the Article’s provisions are temporary insofar as the state government’s authority to give its ‘concurrence’ to presidential orders lasts only till the state’s constituent assembly is ‘convened’:

“Once the Constituent Assembly [of the State] met, the State government could not give its own ‘concurrence’; still less, after the Assembly met and dispersed. Moreover, the President cannot exercise his power to extend the Indian Constitution to Jammu and Kashmir indefinitely. The power has to stop at the point the State’s Constituent Assembly drafted the State’s Constitution and decided finally what additional subjects to confer on the Union, and what other provisions of the Constitution of India it should get extended to the State, rather than having their counterparts embodied in the State Constitution itself. Once the State’s Constituent Assembly had finalised the scheme and dispersed, the President’s extending powers ended completely.”

Abdul Ghafoor Noorani is a very elderly lawyer known for his virulent hatred of Nehru for 'lying' about Kashmir and imprisoning Sheikh Abdullah. This ancient lawyer gave an opinion. It was wrong. How do we know it was wrong? Because the Supreme Court said so five years later. Why is Varadarajan quoting an opinion by a crazy old lawyer which everybody knows to be wrong? Is it because, as an American citizen, he feels it his duty to uphold Donald Trump's right to interfere in the Kashmir issue? If Varadarajan resided in America, we would be obliged to praise his patriotism. However, he resides in India where he makes a pretty good living. It is incumbent upon him to obey the laws of the land he resides in- however much his heart may yearn for the country whose passport he holds.

Of course, Article 370 does have a provision for amendment, but this is what it says:
“Art. 370 (3)—Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify:
Provided that the recommendation of the Constituent Assembly of the State… shall be necessary before the President issues such a notification.”

There have been dozens of amendments to the 1954 Presidential order after that Constituent Assembly ceased to exist. The Supreme Court clarified the legality of such amendments in a 1961 judgment. Why is Varadarajan pretending that this was not the case? Why not simply come out and say that he believes India is illegally occupying Kashmir? Is it because he fears being prosecuted for sedition? Is he merely pretending to be stupid and ignorant because he is too cowardly to say what he really believes? But, in that case, why not move back to the States? There he can say anything he likes to justify Donald Trump's meddling in Kashmir as quid pro quo to Imran Khan for help getting American troops out of Afghanistan.

Amit Shah has tried to get around this hurdle with a two-step process. First, he asserts the power of the president to issue an order that can amend the manner in which another article of the constitution – Article 367 – applies to J&K, and has used this to redefine the term ‘constituent assembly of Jammu and Kashmir’ in Article 370 to mean the state’s legislative assembly.

Three years before Amit Shah was born, the Supreme Court had decided in  Puranlal Lakhanpal that the President was perfectly entitled to make substantial modifications of this type. Thus, there was no hurdle for Amit Shah to get around.

Having resorted to this unconstitutional sleight – something preceding governments, including Congress ones, have also done though not with such lethal intent – Shah then claimed that since the J&K assembly is currently dissolved and the state is under Central rule, parliament can act as a substitute for the legislative assembly and the defunct J&K constituent assembly as well.
This is a truly breathtaking assertion.

Why? It has been done on a continuous basis from before Shah was born! How is it breathtaking? Vardarajan may be American but he has lived in India for many years. Either he is impossibly naive, or he is lying.

The J&K constituent assembly adopted the J&K constitution in 1956 and formally dissolved itself with effect from January 26, 1957. As Noorani notes, the language the assembly chose was deliberate. On January 24, 1950, the constituent assembly of India meeting for the last time had merely adjourned itself sine-die, i.e. with no set date for its next meeting. By contrast, the J&K constituent assembly resolution in its last sitting was:
“Today this historic session ends and with this the Constituent Assembly is dissolved according to the resolution passed on 17th November, 1956.”
The idea behind saying so was to ensure that with the dissolution of the J&K constituent assembly, the ‘temporary’ nature of Article 370 would be rendered permanent – since the only body capable of effacing or amending it would no longer exist.

A body capable of effacing and amending it did exist- viz. the Government of India. That is why it was continually amended until finally being effaced altogether. It may be that the J&K  Constituent Assembly was a ship of fools. It may also be that they thought they had magical powers. However, it was obvious then, as it obvious now, that they had no power of the sort that Varadarajan claims.

This interpretation was upheld by a constitution bench of the Supreme Court in 1959 in Prem Nath Kaul vs State of J&K.

That judgment states ' When the Maharaja- on June 20, 1949, therefore, issued the proclamation authorising the Yuvaraj to exercise all his powers, although for a temporary period, it placed the Yuvaraj in the same position as his father till the proclamation was revoked. The Maharaja was himself an absolute monarch and there could be no question as to his power of delegation.' This case is about whether or not the King of Kashmir was an absolute monarch. Varadarjan was a child when India got rid of Maharajas and Nizams and so forth. They no longer exist. However, this naive American thinks that a Court judgment issued before he was born which affirms that a Maharaja was an absolute monarch has something to do with the Constitution of a Democratic Republic!

Either the man is a fool or he is pretending to be a fool because he is too cowardly to say what he really means.

However, first Jawaharlal Nehru and then subsequent governments whittled away at the autonomy of the state – including the abhorrent practice of issuing presidential orders that extended additional parts of the constitution to the state – with the backing, regrettably, of two subsequent rulings by the Supreme Court.

Why is this man expressing regret that 'absolute monarchs' no longer exist? If he thinks Kashmir should be independent let him say so. Weeping crocodile tears for vanished 'absolute monarchs' helps nobody- except Amit Shah. The man appears an intellectual giant compared to Varadarajan and his ilk.

While those judgments weakened Article 370, they did not question its permanence. Indeed, in a more recent judgment, Justice Rohinton Nariman has reiterated the impossibility of its abrogation, writing in 2016:
“Despite the fact that it is … stated to be temporary in nature, sub- clause (3) of Article 370 makes it clear that this Article shall cease to be operative only from such date as the President may by public notification declare. And this cannot be done under the proviso to Article 370 (3) unless there is a recommendation of the Constituent Assembly of the State so to do.”

That was true on the basis of Article 367 as framed at that time. But it could be amended under 372 (2). That is what happened. Shah had done his homework.

For these reasons, and especially for the fiction of trying to pass off the concurrence of parliament as a substitute for the concurrence of the state assembly (even if we accept the ‘redefinition’ of the state’s defunct constituent assembly as its extant legislature) when the latter stands conveniently dissolved, the Shah-Modi formula of gutting Article 370 by simply pushing through a presidential order will not pass the test of constitutionality.

Want to bet?

The disappearance of a stateAlong with its ‘special status’, Amit Shah has also ‘disappeared’ the state. By what legal right can the government, or parliament, unilaterally convert the state of Jammu and Kashmir into a Centrally-administered union territory, and then also order its bifurcation?

Plenty of states have been bifurcated. The product of a bifurcation may be granted either Statehood or given Union Territory status. There is ample precedent for such procedures.

Under Article 3 of the constitution, this is surely not permissible.
Article 3 says that before parliament can consider a Bill that diminishes the area of a state or changes its name, the Bill must be “referred by the president to the legislature of that state for expressing its views thereon”.

But there is no such legislature at this time. Furthermore, there is a genuine external and internal threat to the integrity of India. It is not the case that the Government of India is prevented from taking such steps as are required to uphold the integrity of the nation just because there is no functioning legislature.

This is an essential safeguard of India’s federal system and has clearly not been followed in this case.

With good reason. There is a genuine external and internal threat. Varadarajan, as an American citizen, may feel that Donald Trump should be allowed to meddle in this issue. As a patriotic American, he may feel a flush of pleasure whenever he contemplates the pink and porcine flesh of the Donald. His heart may yearn for Trump to make America great again by fucking up the people of Kashmir. However, the rest of India may have good reason to fear any meddling by Trump- or, indeed, other American citizens like Varadarjan himself.

In parliament, Shah invoked the legal fiction that since the J&K assembly was dissolved and the state is under Central rule, it is parliament which gets to exercise the prerogatives of the assembly. But think about just how dangerous this logic is. The next time a state like, say Tamil Nadu or West Bengal is under president’s rule, can parliament simply go ahead and vote to abolish that state?

Absolutely- if it is necessary to protect the integrity of the nation or to avoid an internecine conflict. India abolished plenty of states- including foreign ruled territories. Some were turned into Union Territories. Some became States.

I find it astonishing that regional parties like the YSR Congress and Telugu Desam Party of Andhra Pradesh, the Biju Janata Dal of Odisha and the Aam Aadmi Party have declared their support for this kind of unconstitutional, anti-federal package.

Much astonishes Varadarajan. He is in a constant state of shock. What particularly appalls him is the spectacle of Hindus supporting the territorial integrity of India and demanding that external aggression, or home grown terrorists, are given a fitting reply.

Make no mistake about this – what Amit Shah and Narendra Modi have unveiled on Monday is not just an assault on the unique place that Jammu and Kashmir enjoys in India but on the very federal structure of the Indian constitution.

A federal structure does not have 'unique places'. An Empire or a Commonwealth may do so. Federal Republics don't. Where is there a unique place in Varadarajan's own United States? What about the Federal Republic of Germany?

If a 'unique place' exists then foreign powers can seek to meddle in the internal affairs of a country. That is why Federalism has no truck with such anomalies.

If they spent their first term in office undermining a whole host of institutions, Modi 2.0 will target the one institution that was still somewhat intact – federalism.

How?

Kashmir is a whipping boy to be used to accelerate the Hinduisation of the Indian polity and bring in votes from the rest of the country even if the political and security situation in the state deteriorates.

India is already Hinduized. America isn't. Why doesn't Varadarajan go back to America? He is constantly being amazed and shocked and appalled by what these beastly Hindus get up to in their own country. In America he will be spared this continuing trauma.

The next goal of the party, and the RSS, is a centralised rashtra in which all states of the Union know their place. Sangh is the word for Union and the Sangh is now clearly supreme.

Article 1 in the Constitution states- 'India, that is Bharat, shall be a Union of States.' All Indian States do know their place- it is within India. Varadarajan may not like it, but the Indian Constitution affirms the territorial integrity of the Nation and makes it an offense to seek to secede from the Union. But this is also true of Varadarajan's own country- the United States of America. No doubt, he fears returning there because 'Union', in Hindi, is 'Sangh' and this proves that the RSS must be ruling America.

To conclude, I must- as a matter of full disclosure- admit to a personal animus against Siddharta Vardarajan. When I met him, he seemed bright and knowledgeable. Since he is an 'Iyer' like me, I naturally felt aggrieved that he was letting down our sub-caste. We must all strive to appear not just utterly stupid but actually mentally retarded. Only thus will we gain Backward Caste status. 

I now confess I was wrong to be angry with Varadarajan. Everything he writes is the stupidest and most ignorant shite possible under the circumstances. If he had remained in America, he would have been obliged to do something useful. Being a true Iyer, he returned to India to advertise the incorrigible stupidity and radical in-educability of the Iyer sub-caste. I salute this great hero!