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Tuesday, August 6, 2019
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Sorry we’re a bit late today. There was so much material on Kashmir for us to get through this morning—and we’ve worked hard to get it right. That said, to err is human etc.—so do let us know if we flubbed some details or missed out on any key information. This is a momentous time in our nation’s history. All of us have many questions and concerns—many of you have raised the same in DMs to us. So we’ve created a safe space (a closed FB group) where we all can come together to ask questions, share information and offer knowledge and support. Our only rule: We approach each other with empathy and kindness, and most importantly no judgement. Join the group here. Also: please do share our Kashmir explainers widely.

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EVERYONE'S TALKING ABOUT...

The biggest news story today, explained.

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The end of Kashmir as we know it

In one fell swoop, the government stripped Jammu & Kashmir of its special status and its statehood. And it did so in a roundabout way aimed at sidestepping a) the need for a constitutional amendment and b) any consultation with the people of J&K or their representatives. Here’s how it was done.

 

The clauses that matter: Four parts of the Constitution are at play here:

  • Article 370. This key Article gives Kashmir its special status. It essentially says that other than Article 1 and Article 370, the Constitution of India will not be applicable to the state—which will have its own constitution, a separate flag and its own laws. However, three areas defined by Kashmir’s accession agreement—foreign affairs, defence and communications—will remain the preserve of the Union government. 

  • Clause 1(d): of Article 370 basically states that the President can issue an order to make the Indian Constitution applicable to Kashmir but only with the concurrence of the state government

  • Clause 3: of Article 370 is like a self-destruct button. It reads: “the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications” but only with the recommendation of the Constituent Assembly of the State.”

  • Article 367: specifies how terms used in the Constitution will be interpreted. 

 

What the government did not do: They did NOT revoke Article 370 which has been left in place… for now. Why? Because it would need the approval of J&K’s Constituent Assembly—which no longer exists and will have to be reconstituted. Moreover, the Supreme Court has already ruled that it views Article 370 to be a “permanent” part of the Constitution.

 

Step one, The Constitution Order: President Kovind instead issued The Constitution (Application to Jammu and Kashmir) Order, 2019. Here’s what it did:

  • It invoked clause 1(d) of Article 370 to add a new provision to Article 367—that solely applies to Kashmir.

  • This new provision changed the meaning of two terms. One: the government of Kashmir (Legislative Assembly) now refers to the Governor of Kashmir. Two: The Constituent Assembly now refers to the state’s Legislative Assembly. 

 

And here’s how it worked: It used Clause 1(d) of Article 370 to change Article 367. Then used the amended Article 367 to strip two key clauses of Article 370. 

  • Clause 1(d) requires the consent of the J&K state government. As per the new Article 367 provision, Kashmir Governor Satyapal Malik—appointed by the President and nominated by the Union government—is now considered to be the government of Kashmir. He then gave consent to applying all parts of the Constitution to J&K. 

  • Clause 3 is the self-destruct button which required the consent of a Constituent Assembly—which is now the state’s Legislative Assembly. That doesn’t exist right now since J&K is under President’s rule. But this change is crucial to understand what the government did next and why.

 

Step 2, the statutory resolution: Armed with the constitutional order, the government then introduced a resolution which delivered the final blow to Article 370.  

  • It annulled all clauses of Article 370—leaving only a modified Article 1 in place. 

  • This modified Article 1 now reads: “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…”

  • And here’s the kicker: Since Kashmir is under presidential rule, it claimed that the powers of the state assembly have been passed to parliament—which can now approve what came next.

 

Step 3, the Jammu and Kashmir Reorganisation Bill: Having essentially eliminated Article 370, the government pushed through a bill in the Rajya Sabha which did the following:

  • It divided the state into two Union Territories: Ladakh and J&K. 

  • Ladakh will not have a legislature—like Chandigarh, for example. 

  • J&K will have a legislature headed by a Chief Minister who can “advise” the Lieutenant Governor—who typically has far greater powers than a state’s governor. 

  • Unlike a state assembly, the legislature and Chief Minister have highly limited powers. In J&K’s case, the Lt Governor will exercise far more discretion—including the right to veto any bill passed by the state legislature. 

 

Umm, is any of this legal? Well, it depends on who you speak to. Some constitutional scholars like former solicitor general Harsh Salve argue that it passes the smell test. Others point to two potential challenges:

  • Legal expert Gautam Bhatia flags Clause 1(c) of Article 370 which states: “notwithstanding anything contained in this Constitution, the provisions of Article 1 and this Article shall apply in relation to that State.” If so, will a change in Article 376 (the new interpretation provision) apply to Kashmir?

  • Other constitutional experts are sceptical as to whether such far-reaching changes can be approved without the approval of a legitimate state government—and instead using either the governor (in the original constitutional order) or the Parliament (in the statutory resolution) as its substitute. 

 

What about the Opposition? The government drew support from surprising quarters, including AAP and Mayawati-led BSP. Also voting on the side of the government: Naveen Patnaik’s BJD, Jagan Mohan Reddy’s YSRCP and Bodoland People’s Front (BDF). The holdouts included JD(U), Congress, TMC, DMK, PDP and Vaiko’s MDMK.

 

What’s next? Of course, there will be legal challenges but that will take time to resolve. For now, Jammu and Kashmir are under lockdown. Kashmiri leaders Omar Abdullah and Mehbooba Mufti—who were initially under house arrest—have now been formally taken into custody. The government has deployed an additional 40,000 troops. It is unclear what it plans to do next—and we may remain in the dark as no one knows what is happening on the ground. 

 

The bottomline: Whether the government’s actions prove to be legal or not, it is clear that they were not democratic in any sense of the word. As policy analyst Khalid Shah told The Guardian, “My biggest problem is that today the government has demonstrated that they can step aside the will of the people, they can step aside the elected representatives of the people… The best argument to the people of Jammu and Kashmir was that we are a democracy and, at the end of the day, in a democracy, your rights and opinions will be taken care of. What happens today will lay seeds for a very dark future and I don’t know what that future is going to be.”

 

Learn more: Quint has the most detailed account of what the government did yesterday. Indian Express got a constitutional expert to do a long explainer on Articles 370 and 35A. Both The Print and The Telegraph look at the legal questions raised about the government’s actions. The Print sums up the  Gautam Bhatia lays out in detail exactly what those actions were—and where they may prove too clever for the government’s own good. The Hindu explains why the government moved on Kashmir now. Plus: An interesting Twitter thread arguing that this plan was already in place back in 2018.

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IN CASE YOU MISSED IT...

brushing up on the Indian Constitution

Flipkart is now streaming: The ecommerce platform plans to launch a free video streaming service in the coming months. It will be available to members of its Flipkart Plus loyalty program around Diwali time. Nope, there won’t be any Flipkart originals a la Amazon or Netflix. It will instead license content from Disney, Balaji Telefilms etc. (Firstpost

 

The Unnao rape survivor is in Delhi: She was airlifted out of Lucknow after her mother informed the Supreme Court that she has now developed pneumonia. She is now being cared for at AIIMS. (The Hindu)

 

Look what’s in my salad: Prepackaged salads in the United States can sometimes contain an unwanted surprise. Nope, not bugs or caterpillars as you might expect. According to a new study, 53% of these had frogs and toads, 23% were reptiles, and nearly 18% were mammals and the rest were birds. And in some instances, they were alive! (Live Science

 

A new hoverboard record: French inventor Franky Zapata successfully crossed the English Channel on a jet-powered hoverboard—in just 20 minutes! (CNN)

 

Also taking flight, cars! The Japanese company NEC unveiled a "flying car" which looks, umm, kinda odd. The test flight only reached 10 feet off the ground… so we wouldn’t plan on getting around in one of these any time soon. But the video is still pretty awesome! (Independent

 

Prank texting is a social media thing: Everyone is now texting their ‘number neighbour’—i.e. the person who has the phone number below theirs—just to chat. In many cases, it did not go well at all. (Mashable)

 

Need to take a breath? Because you may need it today, here’s a lovely clip of a forest breathing.

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THE POP-UP

Unexpected, thought-provoking and always worth your time

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The 'Online Beauty' Edition

Social media has transformed our notion of who we are, what we desire, even how we look. But it all depends on which platform you are using: Tik Tok or Instagram?

Facetune yourself!

It's a cheap, easy-to-use Photoshop alternative on your smartphone, which allows you to smooth and slim any part of your face or body. And the app has helped give rise to the infamous “Instagram Face.” But is there a backlash brewing even on the glossiest of platforms?

Read: Facetune and the internet’s endless pursuit of physical perfection | Vox

Sex, Love etc 2

Move over Insta, Tik Tok beauty is here

The fake perfection of Instagram has given way to a more playful and creative Tik Tok which has a completely different take on beauty. Say hello to the new kind of cool: The E-girl! And she would never ever dream of Facetuning her photos.

Read: How Tik Tok is changing beauty standards for gen Z | i-D Vice

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