www.afeias.com IMPORTANTNEWSCLIPPINGS(07‐August‐19) 1Date:07-08-19 A Plainly Illegal Order Why the overturning of Article 370 in J&K dosen't stand up constitutional test Suhrith Parthasarathy, is an Advocate The Constitution (Application to Jammu and Kashmir) Order, 2019, issued by the President day before yesterday, has been variously described as an act of genius and as a catastrophic misadventure. Even if it can hardly be both, what is certain is that the measure is plainly illegal. It violates the text and the spirit of the Constitution, and it renders nugatory Article 370, which memorialised the unique terms of Jammu & Kashmir’s accession to the Indian Union. In the words of former home minister Gulzari Lal Nanda, Article 370 represented the only way through which India’s Constitution could be carried to J&K. Today that delicate path has been overturned, and the Constitution has been imposed as a collective whole on the state not through a process of democratic self‐determination but through an exercise of executive whim. By that very precipitous whim the central government has also recommended the removal of the textual remnants of Article 370’s core promises and the cleaving of the state into two, a Union territory of J&K and a Union territory of Ladakh. A consideration of the validity of this measure requires a study of both the history and the language of Article 370. The Indian Independence Act, 1947, which established the independent dominion of India, allowed the Government of India Act, 1935, to function as the country’s interim constitution until it enacted its own Constitution. Section 6(1) of the GOI Act permitted princely states to accede to India by executing an Instrument of Accession. In the case of J&K that instrument came with caveats, that its accession to the Indian union was only in respect of defence, foreign affairs and communications. Article 370 concretised this pact. It made clear that Parliament could legislate only over the agreed subjects, though it did permit the President, through Article 370(1)(d), to extend to the state other provisions of the Constitution if they related to matters otherwise specified in the Instrument of Accession by consulting the state government. Where those matters went beyond the instrument’s ambit both the state government’s concurrence and the state constituent assembly’s ratification were mandated. Interestingly, the provision also provided for a mechanism for its own abrogation. Clause (3) to the article allowed the President to declare Article 370 or any part of it inoperable on an express recommendation made by the state’s constituent assembly. But by 1956 the state’s constitution was finalised and soon its constituent assembly was disbanded. This meant that Article 370 was chiselled into the Indian Constitution, and could only be removed, if at all, through a mandate flowing from a plebiscite.
Microsoft Word - 07-08-19-newsclips1
Date:07-08-19
A Plainly Illegal Order Why the overturning of Article 370 in
J&K dosen't stand up constitutional test
Suhrith Parthasarathy, is an Advocate
The Constitution (Application to Jammu and Kashmir) Order, 2019,
issued by the President day before yesterday, has been variously
described as an act of genius and as a catastrophic misadventure.
Even if it can hardly be both, what is certain is that the measure
is plainly illegal. It violates the text and the spirit of the
Constitution, and it renders nugatory Article 370, which
memorialised the unique terms of Jammu & Kashmir’s accession to
the Indian Union.
In the words of former home minister Gulzari Lal Nanda, Article 370
represented the only way through which India’s Constitution could
be
carried to J&K. Today that delicate path has been overturned,
and the Constitution has been imposed as a collective whole on the
state not through a process of democratic selfdetermination but
through an exercise of executive whim. By that very precipitous
whim the central government has also recommended the removal of the
textual remnants of Article 370’s core promises and the cleaving of
the state into two, a Union territory of J&K and a Union
territory of Ladakh.
A consideration of the validity of this measure requires a study of
both the history and the language of Article 370. The Indian
Independence Act, 1947, which established the independent dominion
of India, allowed the Government of India Act, 1935, to function as
the country’s interim constitution until it enacted its own
Constitution. Section 6(1) of the GOI Act permitted princely states
to accede to India by executing an Instrument of Accession. In the
case of J&K that instrument came with caveats, that its
accession to the Indian union was only in respect of defence,
foreign affairs and communications.
Article 370 concretised this pact. It made clear that Parliament
could legislate only over the agreed subjects, though it did permit
the President, through Article 370(1)(d), to extend to the state
other provisions of the Constitution if they related to matters
otherwise specified in the Instrument of Accession by consulting
the state government. Where those matters went beyond the
instrument’s ambit both the state government’s concurrence and the
state constituent assembly’s ratification were mandated.
Interestingly, the provision also provided for a mechanism for its
own abrogation. Clause (3) to the article allowed the President to
declare Article 370 or any part of it inoperable on an express
recommendation made by the state’s constituent assembly. But by
1956 the state’s constitution was finalised and soon its
constituent assembly was disbanded. This meant that Article 370 was
chiselled into the Indian Constitution, and could only be removed,
if at all, through a mandate flowing from a plebiscite.
www.afeias.com IMPORTANT NEWSCLIPPINGS (07August19)
2
But what the central government has now done is to look beyond
Article 370(3) to repudiate its essential guarantees. It has
orchestrated this scheme to abolish Article 370 by using the
language contained in clause (1) to modify an altogether different
provision, Article 367.
An otherwise benign stipulation, Article 367 contains a set of
guidelines on how the Constitution ought to be interpreted.
Invoking the powers vested in him under clause (1)(d) to Article
370, the President has not only made every provision of India’s
Constitution applicable to J&K – which, in any event, renders
otiose the basic purpose of Article 370 – but has also modified
Article 367, in so far as it applies to J&K. This modification
fictionalises the reference to the “legislative assembly” of
J&K as used in Article 370 to mean the governor of the state
and the reference to the “constituent assembly” used in clause (3)
to mean the “legislative assembly of the state”.
As a result, the governor of J&K now plays the role of the
legislature, and, therefore, concomitantly also the role of the
state’s constituent assembly. This paved the way for a statutory
notification that swiftly followed recommending the deletion of
Article 370’s most critical covenants. The government in defending
this move is likely to point to a 1972 Constitution bench judgment
of the Supreme Court, in Mohd Maqbool Damnoo, where the court
permitted a modification to Article 367 to allow references made in
Article 370 to the legislative assembly of the state as the
SadariRiyasat of Jammu and Kashmir, acting on the advice of the
Council of Ministers of the State, to be construed as references to
the governor of J&K.
But there is a critical difference here that cannot go unnoticed.
The SadariRiyasat was abolished and replaced by an amendment to
J&K’s Constitution by the governor of the state. The changes
now made in Article 367, however, vest in the governor not only a
representative power but also a constituent one. Moreover, unlike
the alterations made earlier, the present amendments do not touch
only upon a construal of Article 370, but they allow the provision
as a whole to be rendered inoperable.
Date:07-08-19
Taxing times Tax policies have become extractive and they are often
backed by coercive methods
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4
While there is some truth in this, GST disruption is largely behind
us. I would argue that the most important source of the slowdown is
weakness in the financial sector.
The beginning of the decline in the growth rate in 201718 coincided
with the sharp decline in the growth of credit by public sector
banks (PSBs) due to large and rising level of nonperforming assets
(NPAs). Credit by nonbanking financial companies (NBFCs) partially
filled the gap but its growth could not be sustained. Though growth
in bank credit has seen some recovery within the last year, it
remains sluggish.
Doubts remain
Three recent measures — surcharge on income tax on the rich,
protective custom duties on several products, and the introduction
of jail term for failure to meet prescribed corporate social
responsibility (CSR) expenditures — have also hurt market
sentiment. Though their impact on growth will be felt over time,
they have raised doubts in the minds of investors about GoI’s
intention to move towards greater market freedom. The decision to
proceed with the four labour codes, without any reform of
underlying labour laws, has reinforced these doubts.
Pulling in the opposite direction are several reformist measures.
Of immediate relevance is the amendment to the Insolvency and
Bankruptcy Code (IBC), which will help speed up muchneeded
resolution of NPAs of PSBs.
The National Medical Commission Act (NMCA) is a bold, pathbreaking
reform that promises significantly improved outcomes in medical
education and, hence, the health sector. The decision to privatise
several PSUs, if implemented, would go a considerable distance
towards restoring GoI’s reform credentials.
Finally, a Higher Education Commission Act and a National Research
Foundation, announced in the recent Budget speech, carry the
potential to entirely transform India’s higher education
system.
In the current fiscal year, growth is unlikely to recover in a
major way. Two factors pose a challenge to private corporate
investment, which is critical to growth acceleration.
First, available data suggest that once we take into account
offBudget borrowing of the government, the combined fiscal deficit
of the Centre and states is mopping up almost all of financial
savings of households. Second, financial markets remain weak,
undermining intermediation of available financial savings, which
may partially include savings by corporations.
Immediately, corrective actions are two, both falling under the
purview of RBI: cut in the interest rate and allow the rupee to
depreciate. Due to continued low inflation, real interest rate is
exceptionally high today. Therefore, RBI is in a position to effect
a significant cut in it without fear of missing its inflation
target, which is allowed to rise up to 6% under the current
legislation.
While improving investor sentiment, an interestrate cut would also
help improve the financial health of banks.
Depreciation of the rupee is a muchneeded correction to the
exchange rate.
Since 2014, it has appreciated 15% in real terms. Because
productivity growth in Indian industry over this period could not
have exceeded productivity growth in foreign industry by 15%,
Indian goods have
www.afeias.com IMPORTANT NEWSCLIPPINGS (07August19)
5
likely become less competitive than their foreign counterparts
since 2014. Depreciation of the rupee will help restore the lost
competitiveness.
This will, in turn, help expand domestic output.
Stand up & be counted
In the longer term, there is no shortcut to faster growth other
than accelerated growth in productivity and investment.
Both require promarket reforms. It is futile to blame consumption
demand when the real problem is the inability of our industry to
stand up to foreign competition. The world merchandise export
market is $17 trillion, and India’s share in it is just 1.7%. A
more competitive domestic industry could have easily escaped weak
domestic demand by exporting more.
Date:07-08-19
Headwinds from USChina standoff India's growth has to be sourced
domestically
ET Editorials
The USinitiated trade war with China and much of the rest of the
world has entered a new phase of harm. India cannot be immune to
these developments and policy must prepare for the possible
fallout. The US labelled China a currency manipulator and stocks
plunged around the world. The good news is that the Chinese central
bank responded by setting a strongerthanexpected exchange rate
target, offering some respite. But there are reasons to believe
that the respite would be shortlived and that both currency and
trade movements would continue to dampen world growth.
Two things have pushed the yuan down. The Fed cut its policy rate
by 25 basis points. Then, President Donald Trump imposed an
additional 10% tariff on $300 billion worth of imports from China.
It is only natural for the currency of a country whose exports are
expected to suffer, especially as a result of being at the
receiving end of an economic fusillade by the world’s largest
economy. Not just the Chinese currency, anticipation of slowing
world growth and trade, along with the need for economies that
compete with China’s exports that have now become cheaper in dollar
terms to stay competitive, has pushed down exchange rates of other
Asian economies.
www.afeias.com IMPORTANT NEWSCLIPPINGS (07August19)
6
When markets turn volatile, footloose capital redeploys to the
safety of the US market. Such flight to safety, in turn, pushes up
the dollar. The yuan and other currencies weaken again, and this
raises the blood pressure in the White House yet again. Chinese
leaders cannot afford to buckle under pressure from the US, and
have ratcheted up the trade war, further slashing American farm
imports. Farm lobbies in the US would complain, and the vicious
cycle would turn, depressing global trade and growth further.
India will have to rely even more on the domestic market for
growth. A slowing world economy would also weaken commodity prices,
including crude prices. That would help, provided India can find
ways to fuel domestic growth. Macroeconomic stability gains a
premium, restricting the room to cut rates.
Date:07-08-19
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Date:06-08-19
A wrong way to end The special status of J&K was never meantto
be permanent, but it should not have been scrapped without wider
consultations
EDITORIAL
Jammu and Kashmir has been a theatre of muscular Hindutva
nationalism, in the early decades in script and since 2014 in
performance. Adopting a highly militarist approach to separatism,
and shunning political process entirely since 2014, the BJP has now
delivered on a promise it has long made, by abrogating the special
status that Jammu and Kashmir had enjoyed in the Constitution
through a combination of executive and parliamentary measures.
Additionally, the State is being downgraded and divided into two
Union Territories. The mechanism that the government used to
railroad its rigid
www.afeias.com IMPORTANT NEWSCLIPPINGS (07August19)
20
ideological position on Jammu and Kashmir through the Rajya Sabha
was both hasty and stealthy. This move will strain India’s social
fabric not only in its impact on Jammu and Kashmir but also in the
portents it holds for federalism, parliamentary democracy and
diversity. The BJPled government has undermined parliamentary
authority in multiple ways since 2014, but the passing of
legislation as farreaching as dismembering a State without prior
consultations has set a new low. The founding fathers of the
Republic favoured a strong Centre, but they were also prudent in
seeking the route of persuasion and accommodation towards
linguistic and religious minorities in the interest of national
integration. The centralising tendencies increased in the following
decades, but Hindu nationalists always argued for stronger unitary
provisions and viewed all particular aspirations with suspicion.
For them, Jammu and Kashmir’s special constitutional status was an
impediment, not an instrument, for the region’s integration with
the rest of the country.
The entire exercise of getting Article 370 of the Constitution
effectively abrogated has been marked by executive excess. The
first step was to declare by a presidential decree that the
‘Governor’ — without regard to the fact that he has no Council of
Ministers now to aid and advise him — can speak for the State
government and give his concurrence to any modification in the way
the Constitution of India applies to Jammu and Kashmir. Second, on
the basis of this ‘concurrence’, the latest Presidential Order
scraps the previous one of 1954, abrogating the separate
Constitution of Jammu and Kashmir. Third, the fact that the State
is under President’s Rule has been used to usher in a new
dispensation under which Jammu and Kashmir becomes a Union
Territory with a legislature and Ladakh another such territory
without a legislature. In sum, a purported process to change the
constitutional status of a sensitive border State has been achieved
without any legislative input or representative contribution from
its people. The bifurcation of States in the past cannot be cited
as a binding precedent as, under Article 3 of the Constitution, the
President seeks the views of the legislature of the States
concerned, even if concurrence is not mandatory. In the present
scenario, J&K has been represented by an unelected Governor
appointed by the Centre, while Parliament has ventured to ratify
the conversion of a State into two Union Territories without any
recommendation from the State.
If there is a legal challenge to these measures, it would centre
around whether such farreaching steps could be achieved in the
absence of a representative government by assuming that its
gubernatorial administrator is constitutionally capable of using
his consent as that of the entire State. Further, there is a
selfenabling aspect to the Presidential Order. It performs a
hopstepandjump feat. It hops over the requirement of the State
government’s consent by declaring that the Governor is the State
government. It steps over the need for aid and advice by the
ministerial council by saying the Governor’s opinion is enough. And
it jumps over the fact that there is no constituent assembly now by
merely reading the term as ‘legislative assembly’, and letting
Parliament perform the role of the State legislature. Thus the
President’s power under Article 370 has been used both to create an
enabling provision and to exercise it immediately to modify the
Order, thereby dispensing with the role envisaged for the State
Assembly. While it is true that in 1961 the Supreme Court upheld
the President’s power to ‘modify’ the constitutional provisions in
applying them to J&K, it is a moot question whether this can be
invoked to make such a radical change: a functioning State has now
been downgraded and bifurcated into two Union Territories. It is
inconceivable that any State legislature would ever have
recommended its own demotion in status.
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nudge the Taliban into accepting a phased withdrawal of American
troops. The US also wants early talks between the Taliban and the
Afghan government in Kabul. The Taliban has resisted until now any
direct engagement with what it calls America’s “puppet regime” in
Kabul. Last month, the Taliban acquiesced in the participation of
Kabul’s representatives, in their personal capacity, in an
intraAfghan dialogue in Doha.
There is speculation that talks between the Taliban and the
government might take place quite soon in Oslo, immediately after
the US and the Taliban agree on withdrawal and counterterror
assurances. Kabul is said to be preparing to send a delegation to
the Oslo talks. If these reports turn out to be true and the
Taliban agrees to observe a ceasefire as part of the dialogue with
the government, Pakistan can claim to have “delivered” the Taliban
to the US.
Sceptics would say these are very big “ifs”. On top of it, there
are reports that the US wants all elements of the deal — a phased
withdrawal of US troops, Taliban’s terror assurances, talks with
Kabul and a ceasefire — tied up pretty quickly. President Trump
seems to have set a deadline of September 1.
If a comprehensive framework is ready by then, Trump might visit
Afghanistan to preside over the signing ceremony. From there it is
but a short hop to Islamabad for a thanksgiving visit.
The Pakistan army certainly understands that an Afghan peace deal
would be a huge personal and political triumph for President Trump
as he approaches his election campaign next year. Facilitating a
deal, even a shaky one, that is in tune with Trump’s political
calendar will help Pakistan repair the damaged relationship with
the US. Islamabad also hopes that it will restore Pakistan’s value
in the US’s strategy towards South Asia that had tilted in favour
of India in recent years.
India learnt, through repeated crises since the 1980s, to fend off
Pakistani pressures on internationalising the Kashmir question.
Delhi has also got better at navigating the triangular dynamic with
Pakistan and the United States. Delhi has also become adept at
turning the crises with Pakistan to focus less on Kashmir and more
on the sources of terrorism originating from Pakistani soil.
A number of factors have facilitated this. For one, Delhi is a lot
stronger than it was when the first Afghan crisis broke out in 1979
after the Soviet Union occupied Afghanistan. For another, the gap
in comprehensive national power has widened in favour of India. And
the quality of India’s relations with the great powers too has
significantly improved. The biggest change, however, is the
decision in Delhi to stop being defensive on Pakistan and Kashmir.
We have seen so in the response of the Modi government to the
terror attacks at Uri in 2016 and Pulwama in 2019.
