Indian Ministry of Law and Justice, Indian President
SUMMARY
November 23, 2023

On August 5, 2019, the Government of India imposed unprecedented legal changes in Indian-Administered Jammu and Kashmir, including Presidential Order C.O. 272.  By fiat, this eliminated historic protections guaranteed by international humanitarian law, treaty and constitutional guarantees for the benefit of the indigenous people of Indian-Administered Jammu and Kashmir.  This also overturned the legal basis for seven decades of Indian jurisprudence (itself based in violations of international law) relating to Indian-Administered Jammu and Kashmir and imposed almost all of the provisions of the Indian Constitution to the territory.  This is a major violation of international humanitarian law, human rights, indigenous rights, treaty obligations and constitutional guarantees.

Topics: changing the laws in force in occupied territory, international humanitarian law violation, no consent of governed, violation of economic rights, violation of cultural rights, violation of social rights, demographic change, settler colonialism, land expropriation, forced demographic change, colonial domination, dispossession, disempowerment, marginalization, right to education, right to work, indigenous rights

ARTICLE PREVIEW

Note that: 

  • the original Article 370 of India’s Constitution was illegal (under international law) and a political compromise borne of a drawn-out negotiation between a non-representative, non-democratic, India-sanctioned government in the Indian-Administered Jammu and Kashmir and the Government of India 
  • the Government of India had historically used Article 370 of India’s Constitution to implement the inverse of what was purportedly intended by Article 370, namely to make Jammu and Kashmir an inferior, constitutionally subordinate, subservient region lacking territorial integrity rather than a privileged, constitutionally separate, fully autonomous state with territorial integrity and extraordinary powers over its own affairs.


On August 5, 2019, the Government of India announced unprecedented steps relating to Indian-Admnistered Jammu and Kashmir, including Presidential Order C.O. 272 (claiming the exercise of powers pursuant to clause (1) of Article 370 of the Indian Constitution).  By its terms, this order:


  • came into immediate effect
  • superseded the Basic Order, abrogating, among other things, Article 35A of the Indian Constitution
  • applied all the provisions of the Indian Constitution to J&K with the following exceptions to Article 367 (Interpretation) of the Indian Constitution: construing references to the Sardar-i-Riyasat (which was J&K’s constitutional head-of-state who was appointed by the J&K Legislative Assembly acting on the advice of the Council of Ministers of the State) as the Government of India-appointed Governor of the State, construing references to the Government of Jammu and Kashmir as the Government of India-appointed Governor of Jammu and Kashmir and construing the Jammu and Kashmir Constituent Assembly as the Legislative Assembly of Jammu and Kashmir in the proviso to clause (3) of Article 370.

Note that Presidential Order C.O. 272:

  • claims, through a President’s order, to supersede the Basic Order which was the fundamental order that, in the Government of India’s view, implemented the constitutional relationship between the Government of India and Jammu and Kashmir.  That Basic Order was issued prior to the dissolution of the unrepresentative the Jammu and Kashmir Constituent Assembly in January 1957 and it, like all Indian President’s orders was, pursuant to the terms of Article 370, subject to ratification by that assembly.  In 65 years of deliberate undermining of J&K’s autonomy by the Government of India through President’s orders and the validation thereof by the Indian Supreme Court, all orders were supplementary to the Basic Order until C.O. 272.
  • equates the Sardar-i-Riyasat, the head-of-state pursuant to the Jammu and Kashmir Constitution and, intentionally, subject to legislative approval by the Legislative Assembly of J&K, and the Council of Ministers of the State with a Governor appointed by the Government of India without even the pretense of local democratic approval.  The head-of-state question was one of the primary mandates of the Jammu and Kashmir Constituent Assembly and its answer to this question was deliberated on at length and enshrined in the Jammu and Kashmir Constitution.  The answer to this question had also been of significant interest to the Government of India’s early governments – for example, at least some of the Government of India’s leaders thought the abolition of the monarchy in the Princely State impaired the validity of the Instrument of Acession (and therefore the Princely State’s presumptive accession to India) itself.  
  • goes further in construing the entire Government of the State with a Governor appointed by the Government of India without any involvement whatsoever from Jammu and Kashmir (even pretextually).
  • equates a time-limited, constituent, sovereign body with extraordinary powers, the Jammu and Kashmir Constituent Assembly which was formally dissolved in January 1957, with a Legislative Assembly that the Government of India has since always ensured was a non-representative body through state violence, denial of fundamental rights, banning of pro-self-determination political parties and vote-rigging and is subject to ordinary powers circumscribed by the Government of India itself.
  • All of the foregoing is predicated on the Government of India-appointed Governor himself providing the “concurrence” reserved for the Jammu and Kashmir Government pursuant to clause (1) of Article 370, all of which was subject to ratification by the Jammu and Kashmir Constituent Assembly which dissolved in January 1957.  The Jammu and Kashmir Government’s power to provide concurrence now claimed by the Government of India-appointed Governor (since Jammu and Kashmir was under direct Government of India president’s rule) was itself only intended to last until the Jammu and Kashmir Constituent Assembly convened, which it did in 1951.
Link to Original Article

August 2019

Originally published

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