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Ominously Anti-Federal: On the Supreme Court’s Judgment on Article 370 and J&K’s Special Status

Editorial, The Hindu

The Supreme Court of India’s verdict upholding the abrogation of Jammu and Kashmir’s special status under Article 370 of the Constitution represents not merely judicial deference, but a retreat from the Court’s known positions on federalism, democratic norms and the sanctity of legal processes. It is undoubtedly a political boost to the ruling BJP and an endorsement of its audacious move in August 2019 to strip Kashmir of its special status and bring it on a par with other States. However, it is also a verdict that legitimises the subversion of federal principles, fails to appreciate historical context and undermines constitutional procedure. The most potent attack on federal principles is the Court’s unconscionable conclusion that Parliament, while a State is under President’s Rule, can do any act, legislative or otherwise, and even one with irreversible consequences, on behalf of the State legislature. This alarming interpretation comes close to undermining a basic feature of the Constitution as enunciated by the Court itself and may have grave implications for the rights of States, permitting a range of hostile and irrevocable actions in the absence of an elected body. The government and its supporters have much to cheer about as the Constitution Bench has endorsed its stand and rejected strong arguments from the petitioners, especially the point that the government had acted in a mala fide manner by imposing President’s Rule preparatory to the intended abrogation of special status without the need to involve any elected representative from J&K.

The government had adopted a complicated process to give effect to the ruling BJP’s long-cherished ambition of removing the State’s special status. It had gone on to divide and downgrade it into two Union Territories (UT). It began with a Constitutional Order on August 5, 2019 applying the whole of the Constitution to J&K and changing some definitions so that the State’s Legislative Assembly could recommend the abrogation instead of its now-dissolved Constituent Assembly, as originally envisaged in Article 370(3). Ultimately, the Court ruled that parts of the August 5 order were unconstitutional as they, in effect, amounted to amending Article 370 itself, which was impermissible; but, in a peculiar twist, it held the consequential notification on August 6 declaring Article 370 as valid and that the President was empowered to do so even without the legal underpinnings of the previous day’s notification that sought to bolster the validity of the action. The President could remove the State’s special status without any recommendation.

The Court has reasoned that the Constitution of India has been applied incrementally from time to time even after the Constituent Assembly was dissolved in 1957 and that the removal of special status is nothing but the culmination of the process of its integration. Even if this line of argument is seen as unobjectionable, the idea that in the absence the Constituent Assembly and in view of the subordination of J&K to the sovereignty of India, there is no fetter on the government’s intention to hollow out its residual autonomy is opposed to all canons of federalism and democracy. There is no doubt that J&K is not vested with any sovereignty. The Court says Article 370 represents no more than a form of asymmetric federalism and that additional features — such as having a separate Constitution, residuary power of legislation and requirement of its consent to some legislative subjects before Parliament can make law on them — will not clothe it with sovereignty. All of this is true. But, how this can mean that historical obligations owed to it and promises made by constitutional functionaries can be blown away at the ruling dispensation’s whim is beyond comprehension. Forgotten is the fact that the process of integration itself was by and large built on a constant dialogue between Kashmir’s leaders and the Union government, the context and conditions in which it acceded to India, the terms of the Instrument of Accession and the progressive extension of constitutional provisions with the consent of the State government over the years.

The Court’s failure to give its ruling on whether the Constitution permits the reorganisation of J&K into two UTs is an astounding example of judicial evasion. It is shocking that the Court chose not to adjudicate a question that arose directly from the use of Article 3 of the Constitution for the first time to downgrade a State. The only reason given is that the Solicitor-General gave an assurance that the Statehood of J&K would be restored. It is questionable whether a mere assurance of a remedial measure can impart validity to any action. At the same time, the Court upheld the carving out of Ladakh as a separate UT. On this point, the verdict is an invitation to the Union to consider creation of new UTs out of parts of any State. The Court’s position that there is no limit on the President’s power or Parliament’s competence to act on behalf of the State government and its legislature is equally fraught with danger. In particular, the reference to “non-legislative” powers of the State Assemblies poses a significant threat to the powers devolved to the States. A future regime at the Centre could impose President’s rule to carry out extraordinary actions through its own parliamentary majority that an elected government in a State may never do. Some examples could be ratification of Constitution amendments, abrogation of inter-State agreements, withdrawal of crucial litigation and bringing about major policy changes. The view that some of these may be restored by a subsequently elected government or House is of little consolation if actions taken under the cover of President’s Rule cause great damage to the State’s interests. This is a verdict that weakens institutional limitations on power, and, while rightly upholding Indian sovereignty over J&K, it undermines federalism and democratic processes to a frightening degree.

(Courtesy: The Hindu.)

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The Last Pillar of Indian Democracy Has Fallen

Prem Shankar Jha

In the past decade, the Supreme Court of India has given a succession of judgements that have eroded civil society’s faith in its readiness to uphold the Constitution of India and protect its secular, ethno-federal democracy from the relentless attack that has been launched upon it by the government of Prime Minister Narendra Modi and his home minister Amit Shah. But the impact of the most perverse of its previous decisions pales into insignificance before that of their judgment upholding the reading down of Article 370 of the Constitution on 5, August 2019.

In one of the most powerful, and most disturbing, editorials that I have read in six decades as a journalist, The Hindu has described how, by upholding Modi’s decision, the Supreme Court has opened the way for his or any future government to amend the Constitution without having to bother with getting a two-thirds majority in both houses of Parliament.

The way is simple: take advantage of, or create, a law and order situation in a state, declare President’s Rule under Article 356 of the Constitution, claim that the president (or governor) now has all the powers of the state legislature, and enact whatever change the state government did not want to make.

The way in which the Modi government will use this interpretation of the Constitution needs no imagination. In three states the BJP-appointed governors have refused to give their assent to Bills or laws passed by the legislature. In Tamil Nadu, in a direct violation of the Constitution, the governor has refused to give it even after the Bill has been returned to him a second time. This was an express violation of the Constitution, but one that was directly instigated by the Union government.

Earlier, the Modi government sent a team of 40 CBI officials to Kolkata, to arrest a serving police commissioner of the state government and bring him to Delhi for interrogation. Its attempt was foiled only because there was an elected state government whose police rose in defence of their commissioner and ‘arrested’ the CBI officials instead.

In Delhi, the Modi government has taken advantage of its already being a union territory to arrest no less august a personage than its elected deputy chief minister, Manish Sisodia, and has been holding him without bail and despite being unable to frame a charge against him for ten months. Not Satisfied with that, Modi is now attempting to do the same with the chief minister, Arvind Kejriwal, himself.

These are the actions of a tyrant, not of the elected leader of a democratic government, and all have been taken before Chief Justice of India D.Y. Chandrachud and his colleagues’ eyes. How long do they think it will be before Modi begins to use the freedom their verdict has given him, to start overturning opposition governments in order to bend the whole of India to his and his Hindutva colleagues’ will?

To justify its decision, the bench has put forward two other supporting arguments. The first is that Article 370 was placed in part 21 of the Constitution titled “Temporary, Transitional and Special Provisions”. Thus it was never meant to be permanent. So all that the Modi government has done is to close the chapter on Kashmir.

The second is that over the decades since the accession, Kashmir’s laws have in any case been brought in line progressively with those of the rest of India. So as the government has argued, the autonomy shielded by Article 370 had been been ‘gradually eroded’.

This is so deliberate a misreading of the Constitution that it leaves one gasping for breath. How could the learned judges not know that ‘temporary’ had to be read within its temporal and political context?

The Constitution was drafted in 1948-49 and adopted by the Constituent Assembly on November 26, 1949. At that time, India was still a dominion of the British Commonwealth. The princely state of Kashmir had acceded to India but two-fifths of it was occupied by Pakistan and war was still raging there. Kashmir’s accession to India had been confirmed by the United Nations Security Council, subject to a plebiscite. But Pakistan had refused to vacate occupied Kashmir, because it knew, as British high commissioner to Pakistan Sir Patrick Graftey-Smith had reported to London from Karachi as early as October 1947 when the invasion of Kashmir had just begun, that it would lose it if one were to be held.

The Constituent Assembly knew that substantial amendments would be needed when the two parts of Kashmir were reunited. Thus it was the boundaries of Kashmir that were temporary when the Constitution was adopted. Since ‘Azad’ Kashmir is now generally accepted as a province of Pakistan, and the ceasefire line has become the de-facto boundary between India and Pakistan in Kashmir, the word temporary has lost its meaning. It was the worst kind of sleight of hand for the Supreme Court to have given this term a wholly different meaning.

The court’s other justification for its verdict is equally flawed. It is true that over the past seven decades Kashmir’s laws and constitutional safeguards have been brought more and more in line with those of the rest of India. The Instrument of Accession had brought only defence, foreign policy and communications within the ambit of Central power. It was the Delhi Agreement of 1952, overseen by Jawaharlal Nehru and Sheikh Abdullah, that began the integration of government in all spheres between the state and the rest of the country.

Just how comprehensive it was can be judged from the range of subjects covered: These included the appointment of the head of the state; the extension of all the civic and fundamental rights of citizens of India to persons domiciled in the state of Jammu and Kashmir; and extension of the jurisdiction of Supreme Court to the state.

It integrated the fiscal system of the state with that of the rest of India, thereby giving Kashmiris full and free access to the vast Indian market. Finally it extended key symbols of statehood like the national flag, and the emergency powers of the Indian state to Kashmir.

The Delhi agreement was the beginning of Kashmir’s integration with the rest of India. A decade later, in 1963, Nehru said that Article 370 has been eroded and the process of gradual erosion was going on. A year later, home minister Gulzari Lal Nanda, described article 370 as a tunnel to take the Constitution of India to Jammu and Kashmir.

By the time Prime Minister Indira Gandhi released Sheikh Abdullah from incarceration and allowed him to resume his chief ministership of Kashmir, 23 constitutional orders had been promulgated to further integrate the state into the Indian Union, and 262 Union laws had been applied to the state.

What the Supreme Court has chosen to ignore is that all this was done with the consent of the Kashmir governments of the time. Sheikh Abdullah had signed the Delhi agreement only after convening a constituent Assembly with 75 members, to approve of it.

In the decades that followed, more and more all-India laws and provisions were extended to Kashmir as well with the full consent, often at the request of, the Kashmir government. As Sheikh Abdullah’s talks with Indira Gandhi’s special representative, G. Parthasarathy, before returning to power showed, there was next to nothing left that he wanted to change.

This process was a world away from the sleight of hand that the Modi government used in 2019, to ‘complete’ the integration. The contrast between ‘erosion by consent’ and ‘erosion through brute force’ was vividly demonstrated by the weeks-long curfews, the complete shut down of internet services, and the paralysis of transport even afterwards that forced people catching flights out of Kashmir to walk kilometres to get to the airport. For the Supreme Court to have glossed over this stark and humiliating difference is inexcusable.

Coming after two foreign governments have accused the Modi government of carrying out or planning extra-judicial killings on their soil, it is clear that the sole remaining pillar of India’s once vaunted, and much envied, democracy has finally fallen.

(Prem Shankar Jha is a veteran journalist. Courtesy: The Wire.)

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The Supreme Court’s Article 370 Judgment Is Injustice Writ Large

Omair Ahmad

There is an old saying that, in a court case, it is not the accuser or the accused who is on trial. The person who is wrong knows what they have done, as does the person who has been wronged – or wrongly accused. The only person who has doubts is the judge. The judgment is less a reflection on the truth of the accusations, but more a reflection on the sagacity and logic of the judge.

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In their judgment on the Article 370 case, the honourable justices of the Supreme Court of India have shown they have nothing of sagacity or logic; but of cowardice, they have aplenty.

There are many parts to the judgment, and it is worth reading in full because it blends many questions of law. Nonetheless, there is one issue that stands out as the heart and substance of the case, and it is the key differentiator between a democracy and a dictatorship.

In bending the framework of the constitution, the regime reinterpreted Article 367 to say that the J&K legislative assembly should be regarded as the J&K Constituent Assembly – which was dissolved in 1957 – and furthermore, since the legislative assembly was dissolved, then the governor was the representative of the legislative assembly as the Constituent Assembly.

Please regard this carefully. The president, an appointee of the governing party, and the governor, another appointee of the governing party, are supposed to represent the governed. In other words, the government chooses who represents the people, not “We, the people”.

This does not just go against the “basic structure” of the constitution that the Supreme Court has defended so strenuously, it goes against democracy itself. It is only in a dictatorship that the regime chooses who represents the people.

This was captured best by Bertolt Brecht when he wrote his satirical poem, ‘The Solution‘, in 1953:

After the uprising of the 17th of June

The Secretary of the Writers’ Union

Had leaflets distributed on the Stalinallee

Which stated that the people

Had lost the confidence of the government

And could only win it back

By redoubled work. Would it not, in that case,

Be simpler for the government

To dissolve the people

And elect another?

Since the Indian government is open to ideas and blind to satire, it has done just that: arguing that it had dissolved the people and elected another, since – after all – if its appointees were the representatives of the people, it could change them at will.

The Supreme Court, in its infinite wisdom which has been on display in a slew of cases whether involving the Babri Masjid, non-hearing of the electoral bonds scheme, habeas corpus petitions that were allowed to languish for a year and its sublime indifference to the evisceration of its Puttaswamy judgment, has now put its imprimatur on this.

How this makes sense, well, that is not the Supreme Court’s business. I mean, if it could maintain in the Babri Masjid demolition case that the demolition was wrong but those who committed the crime should retain custody of what they had grasped through the crime, well then, anything is possible.

And regarding Kashmir, where all our pieties about democracy, liberalism and the rule of law have gone to die, burying rationality in an unmarked grave along with so many others will be nothing new.

(Omair Ahmad is an author and journalist. Courtesy: The Wire.)