Modi's Legal pitfalls on Art 370

Beyond the politics and passionate pleadings of each side of the Kashmir issue, and the abrogation of Article 370 of the Indian constitution, there is a need to understand the legal position that PM Modi's government has taken. Watching the pro Modi media in India, there is a narrative that the change to Kashmir's special status (accorded under Art 370) has been done in a constitutional manner and 'integration' into India was long over due. Little or no effort has been made to understand why the article was there in the first place and how, if at all, it could be changed.

When the Hindu Maharajah of Kashmir (a Muslim dominant princely state) decided to accede to India it was recognized that Kashmir would have its own Constituent Assembly and its own constitution. The problem remained for India that the Instrument of Accession alone did not address the issue of the British (who ruled India till 1947) wanting a plebiscite in Jammu and Kashmir to determine the will of the people on whether they wished to join India or Pakistan. The constituent assembly in a sense gave India the legal standing to argue that by ratifying the instrument of accession the Jammu and Kashmir Constituent Assembly had removed the need for a plebiscite. So far so good; however, the Hindu Maharajah knew of the prevalent view amongst the majority Muslim population of Kashmir that the resulting accession would result in a massive migration of Indian based Hindus into Kashmir.

Thus a form of protection was sought from India to give Kashmir a special status (perhaps more so that it would be the only 'state' in India with a Muslim majority). In consequence Article 370 was enacted which gave India full authority on defense and foreign affairs, but in return recognized that Jammu and Kashmir could have its own constitution and, most importantly, guaranteed special status to Kashmir which would prevent Indians (not only Hindus) who were not domiciled Kashmiris from buying land and property in Jammu and Kashmir.

Now lets deal with the provisions of the now infamous Article 370 itself.

Indeed the Article as a whole was intended to be a temporary measure and hence was included in the section of Temporary provisions of the Indian constitution as it was envisaged that at sometime in the future the Article would be amended or removed. However, the abrogation or removal of the article in its entirety could only be done on recommendation of the Jammu and Kashmir Constituent Assembly (Article 370 (1) (d).

The Article in 370 (1)(d) states that other provisions of the Indian constitution can be made applicable to J&K with such modifications being made by a presidential order. However, such an order must have the concurrence of the J&K government and is limited to the extent of an applicability of a provision of the Indian constitution. However, to completely make Article 370 inoperative the President of India must have the recommendation of the J&K Constituent Assembly (Art 370 (1) (d).

Indeed since the Article was incorporated into the Indian constitution many modifications have been implemented with the consent of the J&K government of the time, the most notable being in 1957 and 1964. Because Kashmir was the only princely state that chose to have its own constituent assembly (all other Princely states accepted the Indian Constitution) the understanding of having this special status and right was the genesis of the Article 370.

The Constituent Assembly of J&K in 1957 dissolved itself without making any recommendation for an amendment or abrogation to Article 370. In a legal sense what the Constituent Assembly was saying that by dissolving itself it carves out a permanence to Article 370 as once dissolved there is no Assembly to recommend the abrogation of Article 370. It is interesting to note that the Indian Supreme Court has ruled numerous times that Article 370 is now a permanent part of the Indian Constitution as the only assembly that could recommend its abrogation dissolved itself without recommending its abrogation or offering an alternate mechanism.

How does the Presidential order of the Modi government violate the legal principles of the Article and the process laid out.

1. While Article 370(1)(d) allows Presidential orders to be issued to modify Article 370 (not scrap it) such modification must be recommended by the Jammu and Kashmir state government. Since J&K is currently under Presidential rule (and therefore no state elected government) the Modi government did not think it necessary to seek such a recommendation for modification.

2. Since there is a major problem that the Constituent Assembly of J&K does not exist, having dissolved itself in 1957, the Modi government has amended Article 367 of the Indian Constitution. This article refers to interpretations and definitions and a new sub clause 367(4)(d) has been inserted which says that words such as "Constituent Assembly" in Article 370(3) must 'read as Legislative Assembly of the State". Since the Presidential power does not exist to change Article 370(3) which defines the Constituent Assembly (not the government of J&K) only to recommend abrogation of Article 370, by changing the definition of the assembly the Modi government paves the way at sometime in the future to have the Legislative Assembly of J&K recommend the abrogation of Article 370.

3.Since there is no legislative assembly in J&K and the state is under Presidential rule the newly amended Article 367 applied to Article 370(3) cannot be used. Thus the Modi government decided to take the matter to the Indian Parliament and recommend the changes through the bill the majority BJP party got passed through both houses of Parliament. While political supporters of Modi and the BJP will argue in the absence of the legislative assembly of J&K and the state being under Presidential rule the Indian Parliament has the authority to pass such a bill. However, legally this is walking on thin ice as there is no provision in the Indian constitution to do this even with a Union State fully integrated into India.


The legal pitfalls of this political chicanery are plentiful, but the question remains if this matter will yet again end up in the Indian Supreme Court. Below are some glaring issues that will be put to test.


A. By modifying Article 367 and redefining Constituent Assembly as "Legislative State Assembly" there is a contradiction now in the Indian Constitution as Article 370(3) remains with the words Constituent Assembly, while Article 367 (4) (the new sub clause) calls it the Legislative State Assembly. Why has this happened? Because the President does not have the power to modify Article 370(3) and it would be clear that the change to Article 367 has been done to let the President do something indirectly which he could not do directly.

The basic structure of the Constitution does not allow the President to use his constitutional powers accorded to him to do an act which the constitution never intended for him to do.  The Supreme Court in India has ruled on this doctrine a number of times and specifically on the issue of Article 370.

B. The amendment to Article 367 with inserting a sub clause violates a basic principle of constitutional law. An interpretational provision of a constitution cannot over ride the effect of an article of the constitution. In other words by simply defining a word differently does not mean that effect of the provision of the articles of the constitution have changed.

C. The fact that since 1957, when the Constituent Assembly of Jammu and Kashmir dissolved itself no subsequent Legislative State Assembly of J&K ever raised the issue of enacting new laws within J&K allowing it the power to recommend the abrogation of Article 370 clearly shows much like its predecessor there was always the intent of the J&K legislative personalities to make Article 370 a permanent feature of their legal link with India.


On an international level there is a larger argument that in having different accords over Kashmir with Pakistan, India recognizes that its a disputed territory. However insofar as the internal legal position of the Modi move is concerned there is little doubt that the political agenda of integration has ignored the legal reality related to Jammu and Kashmir. Eventually this might well end up in the Supreme Court of India, however it remains to be seen if the lands highest court can reverse the decision of the Modi government.

Pakistan Elections: Is it the turning point for Imran Khan?

In a few days time a nation of 193 million people will go to the polls, and if predictions are to be believed we could see a major shift in the direction of Pakistani politics. Between military governments, failed democratic processes, and managed democracy the losers have always been the people of Pakistan. Almost five decades ago, in a highly charged election they were promised a 'new Pakistan'. A year later, and after a bloody civil war, they got a cut up Pakistan and the beginning of a process of elected oligarchies, which having failed ushered in military rule. Another round of return to civilian rule and then the military stepped in again. The third time we expected something better and while still promised a new Pakistan we got an elected government ousted from power by the Supreme Court, its leaders in jail for corruption and yet again another election.

This election promises to be different because of a younger voter base and perhaps a more charged political process. Imran Khan, if the pundits are to be believed, might just be the man to win enough seats for his PTI to form a government. Imran Khan too promises a 'Naia' (new) Pakistan, where he believes democratic process, inclusive policies, rule of law and a crack down on corruption will be the hallmarks of his government. Some believe he holds the inside track because the military see in him a better option than the others.

Yet Imran Khan has patched together alliances with some political figures of other parties and welcomed them into his ranks which makes one wonder how much horse trading will be needed by him to secure victory and if so will it erode his populist agenda for a new Pakistan. To the liberal forward thinking Muslims his flirtations with the ultra conservative and even militant elements of the right wing Muslim groups is troublesome; something the military might not also take much favor with. To the nationalist amongst us his stance of not allowing drone strikes by foreign powers will ring positive to our ears. To the pragmatist the single most important thought will be if he can walk the talk.

I believe what Imran Khan has going for him in large measure is the fact that in financial matters he is considered basically honest. This is singularly the most important thing for many in Pakistan where they hear of the billions that has been stolen from the country. Whether Imran Khan can fight corruption and maintain the rule of law and courts side by side is to be seen. Some of his statements regarding opponents gives one the uneasy feeling that some old scores might be picked at the cost of a judicial process.


At  the end of the day if Imran Khan wins his ability to deliver will depend on the quality of the team he puts together. While at times he has shown, at least with his hospital project, that he can do that, one has to wonder if at the national stage he can find the right people. With a tendency to put himself in the limelight more as a focal point he will have to learn to be humble and bring to the front the depth of the leadership within his party and act more as the watchful eye to keep the focus on his promise for a new Pakistan.

His challenge will be an economy that is riddled with inefficiencies and corruption and to nourish the key drivers for economic performance. Over hauling a government machine which served its own ends rather than the people and to find a balance with the military that ensures it from keeping away from the political process will be an enormous challenge for the Khan. On the foreign relations side the task of not only improving the image of the country but also to find a cohesive direction to a foreign policy which for the past few decades has done nothing other than to be reactive.

At a societal level perhaps Imran Khan could be the only leader who can bring about a national consensus on the question of minorities within the country. A country where the divisions along religious and sectarian lines have reached dangerous proportions. We need someone to stop the rifts between the Sunni and the Shia, between the Muslims and the non Muslims and we need to emphasize and speak out against the wanton violence that some of the extremist elements within the country have brought to the streets of Pakistan.

If this is the Naia (new) Pakistan that can emerge from these elections and Imran Khan feels he has the best chance to deliver it then there cannot be a mincing of words on this matter. Not only a respect for the institutions of democracy has to be nourished but in many cases the rebuilding of these institutions has to take place. An investment into education and the eradication of intolerant views through education has to start. The role of women and their protection has to be at the forefront of this New Pakistan. The list is exhaustive as indeed is the task. But we must also realize that if like the promise of almost 50 years ago this descends into an oligarchy of political favoritism and misguided politics then the country will descend into a state of disrepair from which many decades of pain will emerge.

India and Pakistan inching towards war?

After three wars in the past and over two decades of skirmishes on the Kashmir Line of Control (LOC), events of the past couple of weeks have inched the two South Asian nuclear powers closer to war. The incident of the Uri camp on the Indian side which left 18 Indian soldiers has worked Indian media and the hawks into a frenzy of war mongering. When seen in isolation India certainly would be aggrieved by the attack which was carried out by Kashmiri separatists and India's claim that they were armed and supported by Pakistan.

There are two ways to see the current crisis, a short 3 month to 3 year view, or go back to the genesis of the dispute. There cannot be any doubt that the recent protests within Indian Kashmir against the Indian government control of the area by Indian Kashmiri's has left India embarrassed about their assertion that Kashmiri's were well assimilated into the main body of the Indian Union. The fact that there were curfews and violent protests against Delhi in Srinagar and elsewhere in Indian Kashmir cannot be denied as home grown, even though pro Pakistan elements may well have fuelled the fire.

On the flip side there is also every possibility that domestic turmoil within Indian Kashmir will be exploited by both Indian Kashmiris in exile within Pakistan Kashmir and also by militant elements within Pakistan. For Pakistan the difficult situation has been that while it is combating the terrorists of Taliban, Al Qaeda and other anti Pakistan groups within their country, there is the Kashmir card that some other anti Indian militant groups play to draw support even from those terrorist groups that Pakistan army is battling within the country. Roping in this organisations is not easy and for Pakistan to train them and support them is counter productive. The military in Pakistan does not want to make the mistake they made of training and arming the Taliban for the battles within Afghanistan only to see these former allies turn on their hosts; Pakistan.

The hawks on both sides clearly are not interested in measures to de-escalate the current confrontation which is closely resembling an inching towards a limited war. India has already evacuated over a 1,000 villages on their side, supposedly as a precaution, which Pakistan could well be seeing as a precursor to the Indian army crossing the international border. For both armies it is one thing to have skirmishes on the Line of Control in Kashmir and another thing to cross the International Border. For India the attack in Uri gives them the pretext to talk about Pakistan sponsored terrorism and avoid discussion on the situation within Kashmir. For Pakistan the sabre rattling by India allows the Sharif government to try and divert attention of the opposition, led vy Imran Khan, to further besiege the government on the issue of corruption.

Sadly sensible voices are being drowned in the noise as India, unusually, has upped the ante to talk of further surgical strikes. The last time this happened there was a vicious war in the Kargil area in which neither side came out looking the better. However, the military situation has changed and the belief that Pakistan now possesses tactical nuclear weapons, whether they be depleted uranium ammunition or low yield flash nuclear weapons, gives the Pakistan army the edge that should their international border be crossed in a formal war then such weapons would be used. India's response in this sense would only have to be an escalation to deploying non tactical nuclear weapons. Washington is aware of the risks and it would be important that both sides are encouraged to rein in the war mongering as neither side will win this war.

From a Pakistan point of view to be called a sponsor or terrorism is considered absurd having lost over 54,000 personnel and 300,000 civilian losses, including injuries, over the past 17 years in fighting terrorism. There has to also been an acknowledgement that Pakistan cannot reign in each and every group just as India or the US or any country can ensure that rouge terror attacks will not happen. From India's point of view there has to be a visible effort to reduce the attacks on their territory from elements coming across the border.

Both sides should engage in serious discussions to prevent an escalation and both should consider a 3 mile wide buffer along the line of control and ask for the United Nations to administer the buffer zone. I also personally believe that the Kashmiris really do not want either side and seek an independent state of their own. Pakistani side Kashmiris in this sense have not shown an anti Paksitak bias while in contrast Indian Kashmiris have had their moments of love and hate with New Delhi. For the moment both sides have more to gain by pushing for peace rather than testing their military might in a senseless war where there will no winners.

Sher View: The General Totters

Being in the boots of General Pervez Musharraf is not one of the things many Pakistanis would desire, particularly right at this moment as he implements the suspension of the Constitution and imposes total military rule -- against the warning of the Bush Administration -- in one of America's longtime allies in the volatile South Asia region.

Faced with a possible Supreme Court judgment that would have gone against his Presidency, a controversial deal with former Prime Minister Benazir Bhutto, the bundling off of another former Prime Minister Nawaz Sharif, and the rising pressure of militants in his own backyard, clearly General Musharraf was and is a cornered man.

For the past year or so the military strongman clearly lost his touch, if not the political momentum: his handling of the firing of the Supreme Court Chief Justice and storming of the Lal (Red) Mosque barely 200 meters from the Military Intelligence Headquarters were more than mere embarrassments; they showed that the General did have a conspicuous chink in his armor.

While he tried a political foxtrot in the last few months favoring Benazir Bhutto to return in exchange for an amnesty on possible convictions against her on corruption charges -- presumably with an understanding from Ms. Bhutto that the General would remain as the President -- it was becoming clear that the General was not politically savvy about what he was getting himself into. His handling of sending Nawaz Sharif back into political exile in Saudi Arabia -- the country that had guaranteed Mr. Sharif not returning to Pakistan for at least ten years -- clearly showed that the General was picking his favorites among which political opponents would be permitted to come back home from abroad..

What happens next?

The Bush Administration -- which gave Pakistan more than $10 billion, mostly in military aid, since General Musharraf seized power in a bloodless coup in 1999 -- is scarcely pleased with what the General has donem It is more likely that the Europeans will take economically effective steps against Pakistan’s regime. The Americans will have to balance things given that Musharraf will use the martial law as the necessary weapon he needs to go after the militants of Al Qaeda and Taliban. With press freedoms curtailed or restricted, and military force rather than para-military rangers fighting the militants, his bet will be for quick results if Mr. Musharraf wants some semblance of acceptability in the White House again..

While it is possible that there will be mass political rallies against him in Pakistan -- a land of 177 million Muslims of many persuasions -- it is highly unlikely that General Musharraf and his generals will be as tolerant of street demonstrations as they were during the uproar over the Supreme Court Chief Justice's firing. Benazir Bhutto will perhaps come out of this politically for the worse, finding her deal with the General scuttled. And even though she was acquiring some kudos for speaking out against terrorism after the attack on her convoy upon her return to Pakistan from her exile in Dubai,, she will be hard pressed to prove that democracy was really her sole motive for returning to Pakistan.

The martial law and the General’s sudden about-face actually will favor Nawaz Sharif, who in exile with the Saudis as their "guest," is going to gain the most from this turn of events. It will help him all the more since it seems that the United States had pressed both the General and Benazir Bhutto to come to some understanding; I am told reliably that some American officials urged Musharraf not to undertake any discussions with Nawaz Sharif.

In the street politics of Pakistan this is a huge dividend that Mr. Sharif can encash as and when he wants.

It is possible that General Musharraf acted to pre-empt any dissension within the army ranks. With the November 15th court judgment expected against General Musharraf's presidential election, it is possible his generals were getting uncomfortable about his personalization of the political challenges before the country.

It would well be that the martial law might have staved off any possible attempts by nationalist inspired Generals within the army. One of the most difficult aspects to fathom will be the reaction of the command line generals who have not always felt comfortable with performing martial law duties. Even though since the times of General Zia ul Haq -- one of Mr. Musharraf's predecessors as army chief and president-by-coup -- the army was highly politicized, it cannot be guaranteed that these generals will follow the edict of a President and Chief of Army Staff who seems to be battling more for his life than for his country.

For Pakistan and the region this is a precarious and fragile moment, and martial laws may not be the solution. While dealing with the militants may seem easier by comparison, there is no doubt that the political drama that is unfolding will not end so easily.

General Musharraf has merely written out the first act of a drama the Pakistani public is well versed in, but as with all such dramas the audience has no loyalties. Sadly enough, with Ms. Bhutto'’s political juggling and Mr. Sharif fuming in Saudi Arabia as a "guest," the chances are that General Musharraf will have to have a head-on clash with political forces within the country and most likely within the army.

Only the next few weeks will tell us if the General has truly tottered and fallen. Until then, this past weekend's troubling developments will remain a precarious tangle in Pakistan’s sad political history of military meddling, Islamist maneuverings, and the shredding of the social order.

America may well lose a key ally in the region in its war against global terrorism. It is difficult not to despair about Pakistan's prospects. It is even more difficult bot to despair over the incipient possibility that America's enormous economic, military and political investment in Pakistan may well have been for nought.