New Delhi: The People’s Alliance for Gupkar Declaration (PAGD) has said in a “white paper” on the “assault on the autonomy of Jammu & Kashmir” that a canard was created about misgovernance in the erstwhile state to justify the reading down of Article 370 and J&K’s “dismembering and downgrading”.
The document, titled “The Betrayal”, has claimed that it was in “flagrant disregard of the pledges made, the essence of National Emblem, the letter and the spirit of the Constitution and violation of its basic structure, that the State of Jammu and Kashmir was in August, 2019 denuded of its special constitutional status”.
While giving a detailed account of why Jammu and Kashmir enjoyed a special status and how it was deprived of the same through “mistruths and untruths” and a “propaganda smokescreen”, the PAGD has demanded that the Government of India undertake a dispassionate appraisal of the August 2019 decision. Also, it has called upon the Centre to “urgently undertake an exercise of introspection and course correction, revoke all the decisions taken in August 2019 and restore the autonomous status of Jammu and Kashmir”.
“The least, the Government of India could do, is to grant real autonomy to the J&K state as envisioned by the Constituent Assembly of India and ratified by the Constituent Assembly of Jammu & Kashmir,” it has said.
Tracing the background in which Jammu and Kashmir was granted autonomy except in the matters conceded to the Union and the constitutional mechanism devised to guarantee its autonomy or special status, the white paper has, as per the preface to the document, made an endeavour to “contest, on the basis of legal-political arguments and reliable and convincing data, the mistruths on which the August 2019 unconstitutional and unethical decisions are marketed”.
It said “the State of Jammu and Kashmir was the only State amongst the princely States that negotiated terms of accession with the dominion of India.” The Constituent Assembly with complete consensus incorporated Article 370 in the Constitution to govern the relations between Jammu and Kashmir and the Union. “The constitutional provisions restricted jurisdiction of Parliament to legislate as regards Jammu and Kashmir to three subjects namely External Affairs, Defence and Communications. The State Legislature was to have power to legislate on all other matters.”
Also, it said, “any constitutional provision beyond these three subjects could be made applicable only with concurrence of Constituent Assembly of Jammu and Kashmir. Consequent to the Accession and Constitutional Framework of J&K with the Indian Union, the Constituent Assembly adopted a separate Constitution for Jammu and Kashmir.”
Stating that apart from Article 370, which is a self-contained code, Article 1 was made applicable to Jammu and Kashmir, the white paper recalled how the Delhi Agreement 1952 between the Union and the state government reaffirmed that while in case of all other states the residuary powers vested with The Centre, for Jammu and Kashmir the residuary powers would vest with the state. “The State was, thus, promised limited or residuary sovereignty,” it said.
The Delhi Agreement 1952, it said, also reaffirmed the constitutional position that the special status guaranteed to the state could not be interfered with, except with the concurrence of the Constituent Assembly of Jammu and Kashmir. Thereafter, the citizenship law was extended to the state and all other measures provided under the Agreement were taken. And Article 35A was incorporated to provide a protective umbrella to existing and future laws conferring special rights.
However, the white paper pointed out that over the years, Article 370 was arbitrarily eroded and this encroached on the agreed autonomy of the state. “To illustrate, the President of India issued an order in July 1986 extending Article 249 of the Constitution empowering Parliament to legislate on state list through the resolution of Rajya Sabha. Centre’s own appointee Mr Jagmohan, the then Governor of J&K gave the concurrence to such an assault on State autonomy. Thus from a special status Jammu and Kashmir was eventually deprived off even those rights and powers which are provided to other states,” it said.
Such a gradual and arbitrary erosion of Article 370 has had implications on the political landscape and resulted in alienation, which became a fundamental reason for the political uncertainty in the state, the document said, adding that “the contraction of autonomy provided an opportunity to those who wanted to undermine the relationship of J&K state with the Union”.
The white paper said when the president imposed presidential rule in Jammu and Kashmir in December 2018, it was the eighth such occasion in the state. With this, it said, the powers of Jammu and Kashmir Legislature were made exercisable by or under the authority of the Parliament. This also suspended operation of the first proviso to Article 3 of the Constitution that relates to the reference by the President to the Legislature of the State and the second proviso to the article 3 that makes consent of the Jammu and Kashmir State Legislature necessary before its area, boundary or name of the State is altered.
“The Presidential proclamation of 19th December 2018 thereby laid foundation for the constitutionally impermissible, division and downgrading of the State that was to happen a few months later,” it added.
`President’s August 5, 2019 order was in violation of letter and spirit of Constitution’
Then, it said, after the President’s Rule was on July 3, 2019, extended for a further period of six months, the President on August 5, 2019 passed The Constitution (Application to Jammu and Kashmir) Order 2019 C.O. 272 which superseded the Constitution (Application to Jammu and Kashmir) Order 1954 thereby making the Constitution of India applicable in its entirety to the State of Jammu and Kashmir.
This 2019 Order, the white paper said, was “in clear violation of the letter and spirit of the Constitution”. The purpose of adding Clause (4) to Article 367, the Interpretation clause of the Constitution, it said, was obviously “to obviate the requirement of `recommendation’ by the Jammu and Kashmir Constituent Assembly” under clause (3) of Article 370. The Wire
