Centre, Gujarat Get High Court Notices on ST Status for Rathwa-Koli Community

The PIL says the president had not notified the community as a ST and the state had no powers to amend a presidential order.

Ahmedabad: The Gujarat high court on Tuesday issued notices to the Centre and state governments on a PIL challenging inclusion of Rathwa-Koli community in the list of Scheduled Tribes. The PIL claimed the president had not notified the community as a Scheduled Tribe (ST) under Article 342 of the Constitution, and the state had no powers to amend a presidential order.

A division bench of Chief Justice Vikram Nath and Justice A.J. Shastri issued notices to the two respondents returnable on October 15.

The PIL was filed by Narsinh Mahida, Kanubhai Damir, Gautam Valvai and Dinesh Katara through their lawyer Rahul Sharma. It claimed that the second schedule of the presidential order of 1976, in part IV of the schedule for Gujarat, lists the Rathwa community as a Scheduled Tribe, but not the Rathwa-Koli community.

The 1976 presidential order was modified several times between 1987 and 2013, but the Rathwa-Koli community was not included in the ST list of Gujarat, it said.

In a cabinet meeting on June 21, 1982, the Gujarat government decided to include the Rathwa-Koli in ST list, even when they were listed as an OBC by both state and Union governments.

After this, various departments issued circulars directing the Rathwa-Koli community to be issued ST certificates, allowing them to avail benefits meant for tribal communities, the petitioners said.

The PIL sought that these circulars be quashed and set aside since the Rathwa-Koli community does not find mention in the schedule to the presidential orders made under Article 342 of the Constitution and therefore violates Article 14 of the Constitution.

Home Ministry’s Directive to Newspaper for Opinion Piece a Form of ‘Threat’ to Media

An MHA spokesperson said the article which questioned the process by which President’s Rule in Kashmir was ratified contained ‘blatant misinformation’.

New Delhi: While government departments routinely respond to reports and articles in the media by clarifying the official position, the Union home ministry has gone one step further and demanded “action against all concerned” for an opinion piece in a national daily that it tendentiously labeled ‘misinformation’.

Writing in the Indian Express on September 4, lawyer Gopal Sankaranarayanan had questioned the legality of the process adopted by the Narendra Modi government in diluting Article 370 of the constitution which gave special status to Jammu and Kashmir. Sankaranayanan is representing one of the petitions challenging the dilution of Article 370 before the Supreme Court and his op-ed was presumably a preview of the arguments he will make before the constitution bench when the matter is taken up next month.

Journalists and advocates described the spokesperson’s response to the op-ed as the “new normal”, while also condemning the implied “threat and intimidation”.

Government’s ‘gaffe’?

In his piece, Sankaranarayanan contended that the process of ratification of the president’s proclamation of Central rule in the state was not followed properly. He wrote:

“As far as Jammu and Kashmir is concerned, the president first issued his proclamation on December 19, 2018, vesting the powers of the government with himself and those of the legislature with parliament. This was followed on January 3 by the approval of the houses of parliament. Notably, this approval gave the proclamation a life of six months with effect from December 19, 2018 (not from January 3, 2019). Therefore, if it were not extended before June 18, the proclamation in the solemn words of the constitution, would ‘cease to operate’.”

Arguing how there was possibly a lapse on the Centre’s part in getting the proclamation approved by parliament in time, he added: “Imagining that the cut-off date was July 2, resolutions were tabled to extend the proclamation on June 28 in the Lok Sabha and July 1 in the Rajya Sabha, thereby purporting to renew the six-month period from July 3. This, as Article 356(4) clearly shows, was impermissible, because the proclamation had ceased to have effect on June 18 itself. The only option now was a fresh proclamation to be issued by the president on the same terms as the earlier one — imagine your passport or driver’s licence, but without a grace period for renewal, thereby requiring you to apply afresh.”

Not so, says the MHA

In response, the Ministry of Home Affairs (MHA) wrote to the Indian Express claiming that  Sankaranarayanan had presented an incorrect picture by citing provisions of the constitution pertaining to the imposition of president’s rule – i.e. Article 356 – that did not apply to Jammu and Kashmir because the amendments via which they were introduced were never extended to the state.

Clarifying that “the original provision of Article 356(4) was applicable to Jammu and Kashmir”, the MHA said:

“The original provisions under Article 356 allow it to exist for six months from the date of the second of the resolutions approving the proclamation [in the houses of parliament]. The subsequent changes to Article 356 (4) through the 42nd and 44th Constitutional amendments were not made applicable to Jammu and Kashmir. Therefore, the original provision of Article 356 (4) was applicable to Jammu and Kashmir.”

It added:

“[The] proclamation dated 19th December 2019 was approved by the Lok Sabha on 28th December 2018 and Rajya Sabha on 3rd January 2019. Therefore, the proclamation of the President’s rule was due to expire on 3 July 2019, ie six months from 3rd January 2019. Lok Sabha on 28/6/19 and Rajya Sabha on 1/7/19 approved the continuance of the proclamation of the President’s Rule for a further period of six more months beyond 3rd July 2019. Thus this proclamation was within the provisions of Article 356 as applicable to Jammu and Kashmir.”

While the MHA’s desire to clarify the factual position was unexceptionable and its response seen as well-reasoned, its demand  for “action against all concerned” for what she termed “blatant misinformation” has evoked a strong response.

‘What more action beyond clarification?’

A senior journalist with the Indian Express who spoke to The Wire on background questioned the wisdom behind such a diktat. Noting that such directives have become the “new normal”, he said that when a newspaper has carried the government’s response to an opinion piece, what other “action” could it want.

The journalist said it is important to remember that the writer is “a senior advocate and one of the lawyers in the [Article 370] case”. He further said, “What action can a newspaper take against a senior advocate who has written a piece in a newspaper?”.

As for the MHA spokesperson’s language, the journalist said: “This is the language of everybody now, on every site. It is either abuse or shouting or screaming… They threaten ‘we will do this and that’. But journalists have to do their job,” he said.

Incidentally, the journalist pointed out that Sankaranarayanan had not opposed the removal of the special status. He wrote:

“While the integration of the land and its people is necessary, it is cardinal that the world’s most resplendent democracy heed constitutional process, because without it, we are back in the dark days of the Emergency.”

“So to that extent,” the journalist said, “the advocate had taken the government’s side. But he also made a [legal] argument, and that can only be contested.”

Asked for his response to the MHA’s ‘direction’, Sankaranarayanan told The Wire: “I have no comment. I wrote an article and that is the end of the matter as far as I am concerned. People may have their views, it may be harsh, it may be gentle, whatever it may be, everybody is entitled to their own views and that is what free speech is about.”

Gopal Sankaranarayanan is one of the Supreme Court petitioners opposing the dilution of Article 370. Photo: PTI

‘Core question not answered’

For other lawyers, the MHA’s clarification is not the final word on the question. “The Centre’s interpretation is that the original provisional of 356(4) was in force,” said Rahul Kumar, an advocate who practices in the Supreme Court. “If that is so, what was the status of Jammu and Kashmir from December 19, 2018 – when the presidential proclamation bringing the state under Central rule was issued – to January 3, 2019, when the Rajya Sabha resolution ratifying it was passed? No state or Union Territory can be in a state where there is no government. There was, in fact, a government, there was, in fact, a presidential order and if they are saying it was effective only from January 3, 2019, then that 15-day period from December 18 to January 3 was in excess of the six months provided under the constitution.”

“This has not been answered by the government,” said Kumar, criticising the MHA spokesperson for using language which is “clearly threatening and intimidating”.

The advocate added, “How can they suppress any opinion? Everyone in this country is entitled to their opinion. The opinion piece does not debate the dilution of Article 370. It did not incite anything against the government. Gopal simply pointed out a legal and constitutional lacuna. The matter can now only be settled by the Supreme Court, not the government.”

Kumar added that this “coercive attitude” and “use of threatening words” cannot be accepted. “They are not trying to threaten or intimidate, they have threatened and intimidated. This can even be termed as contempt because Gopal is a petitioner before the court,” he said.

Article 370: On Day 2, India-China in Diplomatic Spat Over Ladakh

China termed the carving of Ladakh into a separate UT as “unacceptable”, with India implicitly ticking off Beijing for commenting on an “internal matter”.

New Delhi: A day after the Indian government began the process of removing the special status of Jammu and Kashmir, China termed the carving of Ladakh into a separate union territory as “unacceptable”, with India implicitly ticking off Beijing for commenting on an “internal matter”.

The diplomatic spat took place as the Indian parliament’s lower chamber was completing the process of approving the Bill that reconstitutes Ladakh – and Kargil district – into an union territory, without a legislative assembly. The Bill was later passed.

This is also the most serious difference between the two sides since the 2018 informal summit between Prime Minister Narendra Modi and Chinese President Xi Jinping aimed to paper over the schism caused due to the Doklam stand-off. The Chinese president is also scheduled to visit India this year for the second edition of the informal summit.

This latest friction adds further significance to S. Jaishankar’s first trip to Beijing as external affairs minister on August 11.

In a separate statement on Tuesday, foreign ministry spokesperson Hua Chunying gave a strongly-worded response not on Kashmir overall, but specifically related to Ladakh.

Also Read: Lok Sabha Passes J&K Reorganisation Bill, Resolution to Revoke Article 370

“China is always opposed to India’s inclusion of the Chinese territory in the western sector of the China-India boundary into its administrative jurisdiction. This firm and consistent position remains unchanged,” said Hua.

She stated that the reorganisation would directly “impede China’s sovereignty”. “Recently India has continued to undermine China’s territorial sovereignty by unilaterally changing its domestic law. Such practice is unacceptable and will not come into force.”

The Chinese foreign ministry official urged India to “exercise prudence in words and deeds concerning the boundary question” and “strictly abide by relevant agreements concluded between the two sides”.

She also demanded that India should “avoid taking any move that may further complicate the boundary question”.

A few hours later, New Delhi retorted that the Bill passed by parliament “which proposes the formation of a new “Union Territory of Ladakh” is an internal matter concerning the territory of India”.

“India does not comment on the internal affairs of other countries and similarly expects other countries to do likewise,” said MEA spokesperson Raveesh Kumar.

Incidentally, India was one of only two countries, that have consulates in Hong Kong, who didn’t even accept a memorandum from pro-democracy protestors to foreign governments.

“So far as the India-China Boundary Question is concerned, the two sides have agreed to a fair, reasonable and mutually acceptable settlement of the boundary question on the basis of the Political Parameters and Guiding Principles for the Settlement of India-China Boundary Question. Pending such a settlement, both sides have agreed to maintain peace and tranquillity in the border areas on the basis of the relevant agreements,” added Kumar.

Ministry of external affairs spokesperson Raveesh Kumar. Photo: PTI

China’s claims over Ladakh

China has claims over Ladakh due to the continuing dispute over Aksai Chin, which began when Pakistan ceded 5,180 sq. km in 1963. There have been several intrusions in Ladakh by China to the non-demarcation of the Line of Actual Control. The most serious stand-off was in April 2013 when Indian and Chinese troops ‘camped” in front of each other at Daulat Beg Oldi for three weeks.

In August 2017, China had protested when India was constructing a road near the Line of Actual Control in Ladakh.

Earlier during the day, Indian home minister Amit Shah, as he moved a resolution for abrogating some provisions of Article 370 and the Jammu and Kashmir Reorganisation Bill 2019, said that it had been a long-standing demand of Ladakh to be given UT status.

Also Read: How Strong is the Economic Rationale Behind Scrapping Article 35A?

He also added that when he spoke about Jammu and Kashmir, it included all the parts which are with Pakistan and China.

“Kashmir is an integral part of India, there is no doubt over it. When I talk about Jammu and Kashmir, Pakistan occupied Kashmir and Aksai Chin are included in it,” Shah said in Lok Sabha.

The Chinese envoy to India, Sun Weidong were among the ambassadors who were briefed by foreign secretary Vijay Gokhale on Monday after Shah introduced the slew of proposals in Rajya Sabha.

He was told, just like other ambassadors, that the reorganisation of Jammu and Kashmir was an internal issue. Further, India stated that the change in status was “aimed at providing good governance, promoting social justice and ensuring economic development in Jammu and Kashmir”.

Chinese and Indian Army troops. Credit: PTI/Files

Chinese and Indian Army troops. Credit: PTI/Files

Relatively sparse global response

Till now, there has been relatively sparse response from foreign capitals on New Delhi’s move to change the status-quo in Kashmir.

Not surprisingly, Pakistan has been the most vocal opponent abroad.

In Washington, the US state department had asked all the stakeholders to maintain peace and stability at the Line of Control. The spokesperson Morgan Ortagus also expressed concern “about reports of detentions and urge respect for individual rights and discussion with the affected communities”.

The UAE ambassador, Ahmad Al Banna sided with India, stating that the creation of Ladakh and Jammu and Kashmir as two new union territories, was “an internal matter as stipulated by the Indian Constitution”.

Earlier, Sri Lankan Prime Minister Ranil Wickremesinghe had welcomed the formation of Ladakh as the “first Indian state with a Buddhist majority”. “The creation of Ladakh and the consequential restructuring are India’s internal matters. I have visited Ladakh and it is worth a visit,” said Wickremesinghe, who is currently in the midst of furious political activities to decide on the presidential candidate from UNP for elections next year.

As per the 2011 census, Ladakh’s population is 46.4% Muslim, 39.67% Buddhist and 12.11% Hindu.

Kashmir and 370: Constitutional Coup Whose Aftereffects Will Linger a Long Time

It is possible to suppress popular opinion for a while, but whether it will bring long-term peace to the state is a matter of speculation.

The Centre’s proposal to revoke Article 370 of the Constitution and demote Jammu and Kashmir’s status from a state to a Union Territory is nothing short of a Constitutional coup. It is a surprise and it is not.

This contradictory observation can be explained this way: the BJP and its predecessor organisations have never concealed the fact that they consider the need to abrogate the article as a foundational philosophy of their party. So it is not a surprise.

But it is one so, considering that it is a drastic and dramatic step which can have consequences both internal and external for India. Presumably, and indeed, hopefully, the government has thought through the consequences of this action.

Also Read: Live: BSP, BJD, AAP, YSR Congress, TRS Support Centre’s Resolutions on J&K

In itself, this is a deeply undemocratic action in that it has been done without the consent of the governed. It is possible to suppress popular opinion for a while using the police and the army, but whether it will bring long-term peace to the state is a matter of speculation. It is disturbing because the argument used by the government to suppress Kashmiri opinion can be used for any other part of the country.

A symbol of Kashmir’s uniqueness

By itself the proposal will not mean much. Over the decades, Kashmiri autonomy promised under Article 370 had become a myth. It had been eroded under the government of Bakshi Ghulam Mohammed and Syed Mir Qasim and did not even recover after the Beg-Parthasarthy agreement of 1975 restored Sheikh Abdullah to the mainstream. Indeed, between 1954 and 1995, the Union government had passed nearly 200 constitutional orders to take away the exclusive powers of the state under its own constitution.

Article 370 was, however hollow, a symbol of Kashmir’s uniqueness to the Indian scheme of things. It may have been neutered, but it still remained a significant symbol of Kashmiri identity. Now Amit Shah and Narendra Modi have struck it down and it cannot but have immediate psychological consequences and even a prolonged period of political unrest.

Home minister Amit Shah, with PM Narendra Modi in the background. Photo: PTI

The demotion of the status of the state is an egregious insult. Far from upholding the state as a unique one in the Indian system, one that was once run by its own prime minister, it has been reduced to the status of a half-state, run by a Lt Governor. Here again, there is the de facto reality that J&K has been more or less run by the Union government since the 1990s, but there was an important veneer of local political activity under parties like the National Conference and the People’s Democratic Party that made for stability.

By its actions, the government is force-feeding what it believes is bitter medicine to the Kashmiris, and the chances are that its impact will last generations. On the other hand, it could be the beginning of a new process which will tell Kashmiris, “Guys, grow up, the world of UN resolutions and Pakistan is long past. Kashmir has been and will remain a part of India and it would be a good idea if you get used to it.”

Also Read: Jammu and Kashmir: Decoding Article 35A and Article 370

The legal issues surrounding Kashmir’s accession to India are in themselves quite intricate. The constitutionality of the move itself is suspect, since Article 370 can be abrogated by the president, but under clause 3, he can only do so following the recommendation of the state’s constituent assembly, which was itself dissolved in 1956. So some mechanism is needed through which this clause can be satisfied. No doubt, the matter will figure in petitions to the Supreme Court soon.

The international community

Internationally, too, there is an issue. No country in the world recognises Kashmir to be a part of India. They all view it as a disputed area whose final status needs to be worked out through negotiations between India and Pakistan. More important, the UN resolutions of April 1948 underline this point since they argue that the final status of the state needs to be determined through a reference to its people. No one has bought India’s view that the participation of the people of the state in successive elections constitutes an expression of that view.

At the same time, international law means little to powerful states. In the words of Thucydides, “the strong do what they can and the weak suffer what they must.” Countries like the US can trash international agreements like the JCPOA with Iran; Russia can occupy Crimea; China can scoff at the UNCLOS and claim a maritime jurisdiction by force or place millions in “re-education” camps; Israel can militarily occupy another nation. So, India can insist on having its way in J&K and the international community will not get their knickers in a twist. But, let’s be clear, they will not endorse India’s undisputed title over the state, at least as of the near term.

There is no doubt that the decision will generate wholesale alienation in the Valley and will almost certainly give a fillip to separatism in the short term. The most dangerous aspect of this could be the reaction of the J&K police forces, who play a cutting-edge role in countering militancy today. If the sense of alienation extends across sections of society, we could see counter-militant activity become more difficult.

The J&K police forces, who play a cutting-edge role in countering militancy today. Credit: PTI.

Is this an opportunistic move or a planned one? At one level, it is the fulfilment of the BJP’s  long-standing demand for abrogating Article 370. At another, it takes advantage of the times where the global hegemon is itself shaking the international system and is unlikely to get involved in the region it is trying to leave. Further, the change in the American position on Jerusalem and the recognition of the annexation of the Golan Heights could well have been examples that inspired the government.

A leap in the dark

Like  many dramatic political moves, it is a leap in the dark, and probably its authors are aware of this. But in the scale of politics they are playing, their approach has been “nothing venture nothing gain”. In that scale, their ambition is to go back in time and reverse engineer India’s political and cultural trajectory. So yes, they have been responsible for disasters like demonetisation, but maybe they have taken a deliberate decision to gamble with the state with the belief that move will be hailed by the constituency that really matters to them – the majority Hindus.

Also Read: Historically, UTs Become States. Now the Centre Is Reversing That Trend in J&K.

The fact that the move has been welcomed by a clutch of parties ranging from the Biju Janata Dal to the YSR Congress party, and even the Aam Aadmi Party, is an indicator of the political dividend that the BJP can reap from the action. There should be no doubt that the move will be hailed across India, since a certain amount of Kashmir fatigue already afflicts the country and the attitude is that “Things have not worked for 70 year, maybe it’s time for some drastic measures”.

But it will be some time before people realise that such “killer moves” like bank nationalisation or demonetisation, usually come with a price that is not apparent at the outset. More than that, when people are involved, change through a measure of consent is usually a better way out than the secretive process through which it has been brought about.

Manoj Joshi is a distinguished fellow, Observer Research Foundation, New Delhi.