Tuesday, 6 August 2019

The Process of Abrogating Article 370

The Process of Abrogating Article 370





In scrapping Article 370 of the Constitution and reorganising the State of Jammu and Kashmir, the Government has adopted a meticulously crafted constitutional and legislative mechanism, the beauty of which may have escaped attention of most people in the tumultuous events of August 5/6, 2019. This article tries to describe and explain the mechanism adopted.



Background

To understand the mechanism of abrogation, it is necessary to have some understanding of the background in which this exercise was undertaken. Article 370 of the Constitution and the Constitutional Order issued in 1954 in implementation of that Article formed this background.


Article 370

Article 370 was a constitutional device to ensure that the Constitution of India and the laws made by the Parliament would not apply in their entirety to the State of Jammu and Kashmir. Clause (1) of Article 370 stated that: “(d) … provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify: Provided further that no such order … … shall be issued except with the concurrence of [the] Government [of the State].”

Clause (3) of Article 370 provided for the repeal or modification of this article, but only on the recommendation of the Constituent Assembly of that State.


The Constitution Order (CO 48) of 1954

In exercise of the powers conferred by Clause (1) of Article 370, the President of India issued The Constitution (Application to Jammu and Kashmir) Order, 1954, which laid down which parts of the Constitution, and with what exceptions and modifications, would be applicable to the State of Jammu and Kashmir. This Order never formed part of the Constitution of India, but was included as Appendix I. Later, several orders were passed amending the CO 48 of 1954 and specifying further exceptions and modifications in the application of the Constitution to the State of Jammu and Kashmir. All such exceptions and modifications were consolidated in Appendix II of the Constitution entitled, “Re-statement, with reference to the present text of the Constitution, of the exceptions and modifications subject to which the Constitution applies to the State of Jammu and Kashmir”.

The exceptions and modifications thus specified were extensive. Even the Preamble was modified to omit the words “socialist secular” in the first paragraph and the word “integrity” in the penultimate paragraph. The latter paragraph in its unmodified form read, “…assuring the dignity of the individual and the unity and integrity of the Nation”. It is difficult to imagine that there was indeed some Government of that State which took objection to asserting the “integrity of the nation” and even secularism of the polity, and that such an objection was entertained and accommodated by the Government at the Centre!

The spirit behind several exceptions and modifications made in the Constitution in pursuance of Article 370 was similarly difficult to comprehend. Many of the fundamental rights, which form part of the basic structure of the Constitution, were modified in their application to the State. Part IV comprising the Directive Principles of State Policy and Part IVA defining the Fundamental Duties were entirely omitted.

One of the most consequential modifications introduced through the Constitution Order of 1954 was the insertion of Article 35A. This Article, which had been the focus of much debate in the past, gave the State immunity to continue with and enact discriminatory laws defining “permanent residents” and “conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions …” This in effect meant that the State of Jammu and Kashmir was under no obligation to protect the fundamental rights of the citizens of India other than those that the State chose to define as permanent residents.

Article 370, the Constitution Oder of 1954 issued under the authority of that Article, and several orders issued to amend it had thus created an elaborate constitutional framework for the State of Jammu and Kashmir which was in several respects in conflict with the spirit of the Constitution and was in some instances against the hallowed doctrine of the basic structure.



Mechanism of retraction

The mechanism that the Government adopted to unravel this complex and ungainly constitutional structure created specifically for the State of Jammu and Kashmir involved several steps.


Step 1: Making all of the Constitution applicable to the State

The first step the Government took was to get the President to issue
The Constitution (Application to Jammu and Kashmir) Order, 2019, superseding the Constitution Order of 1954 and making “All the provisions of the Constitution, as amended from time to time” applicable to the State of Jammu and Kashmir, with only a single exception/ modification, which we discuss later.

This order (CO 272) was issued under powers conferred by clause (1) of article 370 of the Constitution, by the President with the concurrence of the Government of State of Jammu and Kashmir. This is exactly the process through which the earlier order of 1954 was issued. Concurrence of the State in this case meant the concurrence of the Governor, since the State happened to be under the President’s rule.

The order, promulgated by the President on the morning of August 5, came “into force at once”. The Constitution of India, in its entirety, began to apply to the State of Jammu and Kashmir from that moment.

This in itself was enough to render Article 370 completely ineffectual, except that the Article could have been used in the future by another Government to issue an order similar to the Constitutional Order of 1954.


Step 2: Preparing for the abrogation of Article 370

The next step of actually abrogating Article 370 could be undertaken only under Clause (3). That required a recommendation from the Constituent Assembly of the State, which had ceased to exist long ago. The Constitution Order (CO 272) of 2019, therefore, modified the Constitution in its application to the State by adding Clause (4) to Article 367 (which deals with Interpretations) interpreting the term “Constituent Assembly” in Clause (3) of Article 370 to mean the legislative assembly of that State. Because the State was under the President’s rule, the powers of the legislative assembly at that point of time vested in the Parliament.


Step 3: Abrogation of Article 370

Having thus acquired the constitutional authority, the Government moved a statutory resolution asking the Parliament, acting as the legislature of the State, to recommend to the President the issuing of a public notification under Clause (3) of Article 370 read with Clause (1) declaring that all clauses of Article 370 would cease to operate except Clause (1) which would read as under: “All provisions of this Constitution, as amended from time to time, without any modifications or exceptions, shall apply to the State of Jammu and Kashmir notwithstanding anything contrary…”.

That resolution was adopted by the Rajya Sabha on August 5 and by the Lok Sabha on August 6. Acting on that recommendation, the President shall issue the notification abrogating all Clauses of Article 370 except Clause (1), which would thus incorporate into the Constitution the formulation of the Constitutional Order 2019, issued on the morning of August 5, that formed the foundation of the whole exercise.

With that public notification by the President, the Constitution shall no more have any Appendices that were part of the Constitution and yet not integrated within the body of the Constitution. The Constitution and the country shall thus both recover their wholeness.


Step 4: Acquiring the authority to reorganise the State

With the coming into force of the Constitution Order of 2019, and consequently all provisions of the Constitution becoming applicable to the State, the Parliament got the authority to reorganise the State, as it would any other State of India. Under the earlier Constitution Order of 1954, the Parliament could have undertaken this exercise only with the consent of the legislature of that State. Now, the reorganisation bill had to be merely sent to the legislature of that State for its view.

The Government, therefore, drafted the Jammu and Kashmir Reorganisation Bill, 2019 dividing the State into the Union Territory of Ladakh and the Union Territory of Jammu and Kashmir. Since the powers of the legislature of the State at that time vested in the Parliament, the President referred the Jammu and Kashmir Reorganisation Bill, 2019 to the Parliament for its view.

The Government, thereafter, moved another statutory resolution asking the Parliament “to express the view to accept” the reorgnisation bill. This resolution was introduced in both houses on August 5 and was adopted on the same day.



Step 5: Passage of the Reorganisation Bill

The next step was for the Parliament to consider and pass the Reorganisation Bill. The Bill was passed by the Rajya Sabha on August 5 and by the Lok Sabha on August 6. This completed the process.



A beautifully structured step-by-step process

This elaborate and meticulously structured step-by-step exercise to abrogate Article 370 and reorganise the State of Jammu and Kashmir into two Union Territories almost had the beauty of a structured mathematical proof. As in any complex mathematical proof, every step in this exercise had been previously applied and tested in some context. None of the individual steps was a constitutional innovation, but put together these led to an innovative result.

It was this careful and rigorous structuring of the process of repeal and reorganisation which gave the Home Minister the confidence to forcefully declare in the Rajya Sabha on August 5 that the legislative and constitutional mechanism being adopted would pass the judicial scrutiny that would surely follow.

Incidentally, all these statutory resolutions and legislative measures were passed in each house by considerably more than 2/3rd of the members present and voting.

The Government deserves complements not only for its great political will in undertaking this historical exercise of reintegrating the Constitution and the country, but also for the legislative and constitutional skill and commitment displayed by it in executing its will.


Dr. J. K. Bajaj
Centre for Policy Studies

August 06, 2019

Sunday, 30 July 2017

Religion Data of Census 2011: A-2 Jammu and Kashmir

Is there a demographic component of 
the proxy war in the Kashmir Valley?

Fertility Tables published by Census 2011 indicate that the annual number of births in Kashmir Valley has doubled since Census 2001. There were 85,157 live births in the Valley in the year preceding Census 2001, that number has risen to 1,76,673 in 2011. This abrupt rise is restricted only to births in the Valley. In Jammu region, number of births has increased by only 19.3 percent, which is somewhat less than the rise in population of that region. In Ladakh, number of births has declined by nearly a third.


Of the children born in the valley 99.13 percent are Muslim. The spurt in live births in Jammu and Kashmir is thus limited to the Muslims in the Valley. The rise is such that an average Muslim woman in the Valley can now expect to produce 1.34 extra children over her lifetime compared to what she could have expected in 2001. Such a drastic change in the fertility rates over a period of just one decade is indeed surprising.

Census provides one more measure of fertility: number of children in the 0-6 year age group per hundred of the population of different communities. This measure also confirms the sudden rise of fertility in the Muslim community of the Valley. Census 2001 counted 14.64 children per hundred of population among them, the ratio in 2011 is 17.83. Thus, compared to 2001, there are 3.2 more children per hundred of the population among Muslims there.

There has obviously been a great spurt in the fertility of Muslims in the Valley. Such a drastic rise in the fertility measures is unlikely to happen spontaneously. The numbers do indicate a systematic, concerted and successful effort among the Muslims of the Valley to have more children. Surprisingly, no indications of such an effort have emerged in the public domain. 


Rise in the number of Births in Jammu & Kashmir

Number of births has increased by 63 percent
Annual Live Births in J&K

2001
2011
%Gr
%Gr-P
Total
1,68,486
2,74,081
62.67
23.64
Hindu
47,593
55,574
16.77
18.68
Muslim
1,16,434
2,13,882
83.69
26.12
%Gr: Growth in births, %Gr-P: Growth in population
Census 2001 counted a total of 1.68 lakh births in the preceding year; the number in 2011 has risen to 2.74 lakh. As seen in the Table, this amounts to an increase of 63 percent in the live births, while total population in this decade has grown by only 24 percent. Such a rise in the number of births unrelated to the rise in total population is extremely unusual.


The spurt is entirely among Muslims
This spurt in births is entirely in the Muslim population. Number of births among Muslims has increased by nearly 84 percent, which is thrice the increase in their population. Number of births among Hindus, on the other hand, has risen by only 16.8 percent, which is somewhat lower than the increase of 18.7 percent in their population.



The spurt is seen only in Kashmir Valley
Annual Live Births in the three Regions

2001
2011
%Gr
%Gr-P
J&K
1,68,486
2,74,081
62.7
23.64
Kashmir
85,157
1,76,673
107.5
25.77
Jammu
79,305
94,640
19.3
21.41
Ladakh
4,024
2,768
-31.2
15.96
The spurt in births is also limited to the Kashmir Valley region of the state. In the Valley, number of annual live births has more than doubled between Census 2001 and 2011. In Jammu, the number has increased by only about 19 percent; and in Ladakh, the number of births has declined by nearly a third.



The Valley now accounts for 64.5 percent of births
%Share of the three regions in total births

2001
2011
%Pop
J&K
100.00
100.00
100.00
Kashmir
50.54
64.46
54.93
Jammu
47.07
34.53
42.89
Ladakh
2.39
1.01
2.19
%Pop: Share of the region in 2011 population.
Kashmir Valley now has a share of 64.5 percent in the total births in the state. This is much higher than the share of 55 percent that the Valley commands in the total population. In 2001, share of the Valley in the total births was only 50.5 percent. Share of Jammu in total births is now 34.5 percent, compared to 47 percent in 2001. Share of Ladakh in total births has declined even more sharply from 2.4 percent to just 1 percent.



Rise in the TFR

Total Fertility Rate (TFR) of a population is the average number of children likely to be born to a woman over her lifetime calculated on the basis of the average number of children currently born to women in different age groups. TFR is the parameter that demographers generally use to measure the relative and changing fertility of different populations. Rise in the number of births counted in Census 2011 as compared to 2001 has naturally led to a significant rise in the TFR of the state, but the changes in the TFR of different regions and communities are very different as we discuss below.


Rise is only in the Muslim TFR
TFR of J&K, 2001-11

2001
2011
Total
2.53
3.08
Hindu
2.18
2.02
Muslim
2.73
3.65
With the extraordinary rise in the number of births, the TFR of the state has increased substantially from 2.53 to 3.08. But the rise is limited only to Muslims, whose TFR has increased from 2.73 to 3.65. This means that a Muslim woman in the state is likely to have nearly one more child in her lifetime compared to what she could have expected in 2001.


TFR of Hindus has gone below the replacement rate
TFR of Hindus in the state, on the other hand, has declined from 2.18 to 2.02. TFR of 2.1 is considered to be the replacement rate sufficient to keep a population stable. Below that rate, populations begin to contract. Demographically, Jammu & Kashmir is now in a situation, where the population of Hindus is likely to contract, while that of Muslims is likely to rise much faster than what could have been expected in 2001.


Rise in TFR is also confined to the Valley
TFR of the regions

2001
2011
J&K
2.53
3.08
Kashmir
2.52
3.85
Jammu
2.52
2.27
As in the case of number of births, rise in the TFR between 2001 and 2011 is also restricted to Kashmir region alone. TFR of Kashmir Valley has risen from 2.52 to 3.85. This means that on the average a woman in Kashmir is likely to have 1.33 extra children in her lifetime than what she could have expected in 2001. TFR of Jammu region has however declined from 2.52 to 2.27. Incidentally, in 2001, TFR of the two regions was exactly the same.


Hindu TFR in Jammu has dipped below 2.1
TFR of Jammu

2001
2011
Total
2.52
2.27
Hindu
2.19
2.03
Muslim
3.45
2.88
TFR of Hindus in Jammu region has declined from 2.19 to 2.03, which is below the replacement rate of 2.1. Interestingly, TFR of Muslims in Jammu has also declined considerably from 3.45 to 2.88. The rise in the TFR is thus almost exclusively for Muslims in the Valley as we see below.


Muslim TFR in the Valley has risen spectacularly
TFR of Kashmir

2001
2011
Total
2.52
3.85
Hindu
1.37
1.88
Muslim
2.54
3.88
TFR of Muslims in the Valley has risen spectacularly from 2.54 to 3.88. There is some rise in the TFR of Hindus also. But this is not significant, because the total number of Hindu births in the valley is just 536. That number was 275 in 2001. The valley has been largely cleansed of Hindus; not many Hindu families live there. In 2011, 99.13 percent of the total births in the Valley belong to Muslims and merely 0.33 percent to Hindus.


Rise in the number of children (0-6 yr)

Number of children in the 0-6 year age group per hundred of population is another indicator of the relative fertility and growth of different communities. Both of the parameters that we have considered above depend upon the number of births in a particular year. Number of children, however, is a distinctly different parameter that depends upon the age distribution of the population at the time of the Census. The abnormal rise in the TFR and number of births in the state is also reflected in the rise in the number of children in 2001 and 2011.


There are 2.6 extra children per hundred Muslims
Children per hundred
in Jammu & Kashmir

2001
2011
Total
14.65
16.10
Hindu
13.30
12.04
Muslim
15.43
18.04
Number of children per hundred of the population in the state has increased from 14.65 in 2001 to 16.10 in 2011. This rise is also entirely among Muslims. Number of children among the Hindus has declined from 13.30 to 12.04 per hundred. Among Muslims, on the other hand, the ratio has increased from 15.43 to 18.04 per hundred. There are thus 2.6 extra children per hundred of the Muslim population of the state.



Rise in Children per hundred is limited to the Valley alone
Children per hundred
In the three regions

2001
2011
J&K
14.65
16.10
Kashmir
14.36
17.39
Jammu
15.06
14.67
Ladakh
13.58
11.65
Rise in the number of children per hundred, as in the number of annual births and TFR, is restricted to the Valley alone, where number of children per hundred of the population has increased from 14.36 to 17.39 between 2001 and 2011. There are thus 3 more children per hundred of the population in the Valley. In both Jammu and Ladakh, the share of children in the population has declined. In Jammu, the decline has been relatively moderate, from 15.06 to 14.67 per hundred. In Ladakh, the number of children per hundred of the population has declined more steeply from 13.58 to 11.65.



Within the Valley the rise is only among Muslims
Children per hundred
in the Valley

2001
2011
Total
14.36
17.39
Hindu
2.98
2.95
Muslim
14.64
17.83
The rise in the number of children per hundred within the Valley is restricted only to Muslims. There are now 17.83 children of 0-6 years per hundred Muslims in the Valley compared to 14.64 in 2001. They thus have 3.2 extra children per hundred. Number of children among Hindus was rather low at 2.98 percent in 2001; in 2011, the ratio has further declined to 2.95 per hundred.



But the ratio for Muslims remains the highest in Jammu
Children per hundred
in Jammu region

2001
2011
Total
15.06
14.67
Hindu
13.70
12.60
Muslim
18.40
19.02
It needs remarking that the number of children per hundred Muslims has increased, though only slightly, in Jammu region also. Of the three regions, the number of children per hundred was the highest in Jammu in 2001. For the region, the ratio now is considerably below that of the Valley. But Muslims in Jammu still have the highest number of children per hundred. The ratio for them is 19.02 compared to 17.83 for the Muslims in the Valley.



Conclusion

1. Number of annual births in Jammu and Kashmir has increased from 1.68 lakh in 2001 to 2.74 lakh in 2011.

2. This spurt in births is almost entirely among Muslims. Number of Muslim births has increased by 84 percent, from 1.16 lakh to 2.14 lakh. Number of Hindu births, on the other hand, has increased by just 17 percent, from 47.6 to 55.6 thousand. This rise in Hindu births is somewhat lower than the rise in their population.

3. The spurt in births is confined entirely to the Valley. In Jammu region, the number of births has increased by just 19 percent, and in Ladakh it has declined by nearly a third. In the Valley, however, number of births has more than doubled, from 85 thousand in 2001 to 1.77 lakh in 2011.

4. Of the children born in the Valley more than 99 percent are Muslim. Thus the spurt in births is a phenomenon confined to the Muslim community in the Valley.

5. As a consequence of the rise in births, TFR of Valley Muslims has increased from 2.54 to 3.88. This means that an average Muslim woman in the Valley today is likely to have 1.34 extra children over her lifetime as compared to what she could have expected in 2001.

6. TFR of Hindus in Jammu and in the State as a whole has declined and is now below the replacement level of 2.1.

7. Thus we have a situation where the population of Muslims, especially in the Valley, is entering a phase of sharp expansion, while that of Hindus is likely to begin contracting.

8. The phenomenon of a sudden spurt in Muslim fertility is further confirmed by the rise in the number of children of 0-6 year age in the Muslim population of the Valley. The number was 14.64 per hundred in 2001; it has risen to 17.83 in 2011. Thus there are more than three extra children for every hundred Muslims in the Valley. The number of children per hundred Hindus, on the other hand, has shrunken in the state and in all three regions of the state.


9. Such drastic rise in the fertility parameters of a population is highly unusual and is unlikely to be spontaneous. If the data were to be believed, it would seem that Muslims in the valley are making a conscious, concerted and successful effort to increase the number of children among them.