Guest Post: Article 370 – Dealing with Sampat Prakash and Maqbool Damnoo

(This is a guest post by Amlan Mishra.)

Two stances have been taken by those who believe in the unconstitutionality of the Presidential Order amending Article 370. First, that Article 370 can be abrogated, but only through a constitutional amendment or the people’s consent. The presidential order is problematic because it does indirectly cannot be done directly; therefore is a colourable exercise of power. The Second stance is one which relies on the work of AG Noorani and the Constitutional Assembly debates to take a strictly textual view that the Constituent Assembly being dissolved, no authority executive can exercise the power conferred on the Constituent Assembly to decide on Article 370.

The commonality in both these approaches is that the Kashmir issue should not be decided by the executive unilaterally, and by a colourable exercise of power. However, two cases of the Supreme Court pose a direct challenge to these ways of thinking. In this post I will deal with these two cases and show how they are inapplicable to the present issue, or deserve to be overruled or distinguished.  In so doing, I will rely on implied constitutional limitations and build a case for the unconstitutionality of the Presidential Order.

Sampat Prakash v. State of J and K (1968): a check on the President’s power

In Sampat Prakash, the petitioner had challenged the non-application of Part III of the Constitution to Kashmir’s Preventive Detention laws. The modified Constitution of India as applicable to Kashmir had, vide Article 35C, excluded such application to Preventive Detention laws. The petitioner submitted that the delegation of power to the President to amend and modify the Constitution as applied to Kashmir could not be construed so broadly as to take away fundamental rights. The court however disagreed, giving wide power to the President.

“We are, therefore, ‘of opinion that in the context of the Constitution we must give the widest effect to the meaning of the word “modification” used in Art. 370(1) and in that sense it includes an amendment. There is no reason to limit the word “modifications” as used in Art. 370(1) only to such modifications as do not make any “radical transformation.”

Sampat Prakash was reiterating the position of law already set out in Puran Lal Lakhanpal v. State of J and K, which had held that indirect election(as opposed to a direct election in rest of India) to the Lok Sabha from the state of Jammu and Kashmir could be effected through Article 370(1). Notice that the ratio of both these cases, read broadly, proposes that the power to modify the Constitution of India as applicable to Kashmir, has no boundaries/guidelines. Is this power to legislate given to the executive to be completely unhindered? As pointed out in this blog the text of Article 370 itself provides that it cannot be used to amend itself. However, I will argue that there is a more crucial implied limitation on this exercise of the President’s power.  

Consider, for example, Samatha v. State of AP, where the Supreme Court held that a legislative power to the constitutional executive (Governor in that case) to ‘modify, amend and regulate’ laws had some implied limitations. The question was whether 5(2) (a) of the Fifth Schedule, which provided that the governor could ‘regulate’ allotment of land to STs in Scheduled  Areas, could be used to give away tribal land to non-tribals. The fifth schedule allows the governor to modify laws as applicable to the Scheduled Areas of the state and regulate the allotment of land in these Scheduled Areas.  The court held that a perusal of the rest of the schedule made it clear that the intention of the framers behind the Fifth Schedule was to prohibit devolution of land to non-tribals. Marshalling Constitutional history of special protection to tribal community and Constituent Assembly debates, the court read into the fifth schedule an implied limitation thus:

“In the light of the provisions contained in clause (a) of sub-para (2) of para 5, there is implied prohibition on the State’s power of allotment of its land to non-tribals in the Scheduled Areas.”

Notice that Article 370 of the Constitution similarly gives the President to alter and modify the Constitution as applicable to the State of J and K. The text of Article 370 shows that the President is to merely legislate on what this special status would look like. Each clause gives the sense that the final word shall be of the people of J and K.  Article 370(2) actually envisions laying all decisions before the Constituent Assembly of Kashmir  A perusal of Article 370 should make it clear that it seeks to preserve the ‘consent’ of the people of Kashmir. The Constitution Assembly debates of N Gopal Ayyangar show as much. This puts an implied check on the President’s amending power by making it contingent on the consent of the people of Kashmir. Even though the Constituent Assembly of Kashmir has been dissolved, the centrality of consent in the provision should be an implied limitation. Thus it is best to confine the ratio of Sampat Prakash that ‘radical transformation’ is possible to the facts of that case.

What the present order does it two things. Firstly, it overrules all prior Presidential orders made under Article 370(1), thereby effectively ending the special status of Kashmir. Secondly, it does this without any sliver of people consent. Thus it violates the implied limitation of consent inherent in Article 370.

Mohammad Maqbool Damnoo v. State of J and K (1972): the backdoor of Article 367

In 1965, the office of the indirectly elected Sadr-e-Riyasat was replaced with the office of the Governor, who was to be unelected, vide an amendment in the J and K Constitution. The amendment was made by the Sadr-e-Riyasat, who had the power to amend the Constitution of J and K. The Presidential order giving effect to this added a ‘legal fiction’ clause in Article 367 that ‘Sadr-e-Riyasat’ was to be read as ‘Governor’. Notice that similar to the present presidential order, it sought to indirectly amend Article 370. The 1965 amendment has been dismissed as ‘clarificatory’ i.e. merely giving effect to a legal fact. The court also held similarly:

“But, as we have already said, the explanation had become otiose and references to the Sadr-i-Riyasat in other parts of the Constitution had also become otiose. There were two alternatives; first, either to leave the courts to interpret the words Government of the State” and give it its legal meaning, or secondly, to give the legal meaning in the definition clause. What has been done is that by adding cls. (aa) and (b) a definition is supplied which the Courts would have in any event given. Therefore, we do not agree that there has been any amendment of art. 370(1) by the back-door.

However, dismissing this amendment as clarificatory does not engage with a crucial idea. The post of the Sadr-e-Riyasat was an indirectly elected post, which was done away by an amendment made by the Sadr-e-Riyasat himself. Can an elected post which carried with it the power to amend the J and K constitution be replaced with an appointed one, that too through a presidential order? Thus the amendment was more not just clarificatory and changed the elective nature of the office as provided for in both the original Indian and the J and K Constitution.

The distinction between the power to amend the constitution i.e. ‘constituent’ power and ‘legislative power’ must have been known to the court when Damnoo was decided. Both Shankari Prasad(1951) and Sajjan Singh(1965) had sufficiently delineated the difference, but had held that Parliament’s constituent power to amend the constitution had no implied limitation. But this concept had been thrown into disarray after the Golak Nath case, which held that amendments were ‘law’ under Article 13, and that the Indian Constitution did not envision any separate ‘constituent power’. J. Hidayatullah went to the extent of saying: ‘What then is the real distinction between ordinary law and the law made in the exercise of constituent power? I would say under the scheme of our Constitution none at all.’ Given this doctrinal muddle and the subsequent 24th Amendment, the court in Damnoo must have trod safely in not relying on any of those cases, or even entering such a discussion.

It was only in that in 1973, that Kesavananda Bharati developed fully and clarified the difference between constituent power and constituted power. The parliament exercised constituent power under Art. 368 subject to some implied limitation that it cannot ‘destroy basic features of the original constitution. A better way of distinguishing Damnoo, then, is not to say that it was ‘clarificatory’, but to say that it needs to be overruled in light of the sufficient clarity we now have about this crucial idea of sovereignty. The constituent power of the people of Kashmir and the people of India cannot be said to have been overruled, by a presidential order or an amendment in the J and K constitution. As the court has held in Kihoto Holohan and Kuldip Nayar, the democratic nature of offices is a basic feature which cannot be taken away not even by amendment, let alone executive dictats. To that end, Damnoo deserves not just to be distinguished, but to be overruled. In fact the High Court of J and K has observed that the 1965 amendment violates the basic features of democratic election and the constituent power of the people of Kashmir (in Para 24). But it shied away from declaring it unconstitutional, as that was not the issue before it.

That leads us to this Presidential order. Here similarly, the constituent power of the people of Kashmir in granting themselves autonomy has been frustrated by a Presidential order. The only tokenistic concurrence provided here is by the Governor of the state, who himself operates ‘during the pleasure of the President’. The distinction between representative, constituted and constituent power as given in Kesavananda Bharati should guard us against changing Article 370 through a presidential order.


I have shown how the two cases which are cited in favour of Article 370 need to be overruled or distinguished in light of subsequent jurisprudential clarity about implied limitations in the constitution.

Guest Post: Article 370 – A Counter-Point

(This is a guest post by Pranay Lekhi.)

Clause 1(d) of Article 370 has been used to pass over 45 Presidential Orders to modify and progressively expand the powers of the Central Government with respect to Jammu and Kashmir since 1950. It is true that in State Bank of India v. Santosh Gupta, the Supreme Court noted that the marginal note stipulating that Article 370 is “temporary” has lost its meaning due to the dictum in Sampat Prakash v. State of Jammu and Kashmir. However, the implications of these judgments are not as consequential as they have been made out to be. As stated by Nariman J. in Santosh Gupta,the implication is simply that despite Article 370(3) reading “Constituent Assembly of the State”, the article will not cease to operate upon the dissolution of the Constituent Assembly, which happened in 1957. Therefore, the logical deduction is that despite the dissolution of the Constituent Assembly of Jammu and Kashmir, the procedure under Article 370 can still be used to issue Presidential Orders. Consequently, the Order of 2019 is an exercise of constitutionally valid powers to pass an order of a similar nature to those before it, as it “supersedes” the previous orders and makes applicable to Jammu and Kashmir all parts of the Constitution that were previously inapplicable, without exception.

In the same vein, it has been argued that the procedure under clause 3 has not been followed, which requires the recommendation of the “Constituent Assembly of the State” prior to such promulgation. Undoubtedly, since 1957 the State Assembly, which has been given autonomy in certain matters, is the Constituent Assembly. This is evident from a bare reading of Section 147(1) of the Constitution of Jammu and Kashmir, which vests the legislative assembly with the constituent power of amendments. The Supreme Court in Santosh Gupta (para 10) followed this logic while declaring that after the dissolution of the Constituent Assembly, an order under Article 370(3) can be made with the concurrence of the “State Government”. This must be seen in consonance with the Presidential Order of 1954 extending Emergency Provisions under Articles 356 and 357 of the Constitution of India to Jammu and Kashmir.

Furthermore, unlike other States, President’s Rule under Article 356 runs concurrently with Governor’s Rule under Section 92 of the Constitution of Jammu and Kashmir. This is important as Section 92 allows for far more expansive powers to the Governor: under Section 92(1)(a), the Governor may assume to himself all or any of the functions of the Government of the State. This action is not only legally justifiable but also has precedent: in 1986, then Governor of Jammu and Kashmir, Jagmohan, approved an order extending Article 249 of the Constitution of India to the State. This suggests that scheme of Governor’s Rule is unique and incomparable to other provisions of the Constitution, such as those concerning promulgation of ordinances. In sum, while the Assembly is in suspended animation, the Governor alone is embodied with the powers of the Constituent Assembly of Jammu and Kashmir. Hence, as the 2019 Order correctly notes, it is made “with the concurrence of the Government of Jammu and Kashmir.”

Insofar as the argument concerning the exercise of a constituent power under Section 147 of the Constitution of Jammu and Kashmir is concerned, the same is inapplicable to the present situation. It is indeed true that as per the proviso of Section 147, certain parts of the Constitution of Jammu and Kashmir cannot be amended by the Legislative Assembly. However, the assent to the Presidential Order is not an exercise of the power to amend the Jammu and Kashmir Constitution at all. On the contrary, it is specifically an exercise of powers provided under Article 370 of the Constitution of India. Therefore, since all powers of the State Government vest with the Governor under Section 92 of the Constitution of Jammu and Kashmir, his assent to the Presidential Order, despite being an exercise of constituent powers, will remain unaffected by Section 147.

Additionally, Article 370 has not been used to either abrogate or amend itself. The provision provides for the President to modify any part of the Constitution for the purpose of an order issued under it, and in furtherance of such power, the 2019 Order amends Article 367. The effect of this change is indeed that the language of Article 370(3) is altered. However, it is incorrect to suggest that Article 370 cannot be used to amend itself. Clause 1(c) talks of the applicability of Articles 1 and 370 to Jammu and Kashmir irrespective of any Presidential Order and Clause 1(d) makes such” other parts of the Constitution of India applicable only after the promulgation of such Orders. The addition of the word “such” in Clause 1(d) makes it clear that it includes within its ambit Articles 1 and 370 mentioned in Clause 1(c).

In any case, these two forms of application of constitutional provisions in no way imply Article 370 cannot be used to modify itself. As noted by the judgment in Santosh Gupta, the powers “modify” under Article 370(1) have to be given “the widest possible amplitude” and not a restrictive meaning (¶ 14). This would imply that the President by order would also have the power to amend Article 370 itself. This is also evident from the scheme of Article 370. Sub-Clause (3) of Article 370, which applies “notwithstanding” anything in the foregoing provisions expressly notes that this Article (i.e. Article 370), shall cease to be operative or be operative with “exceptions and modifications” by an order of the President. This makes it apparent that Article 370 can be amended by a Presidential Order.

As for the delimitation and central administration, the sequitur follows. Once the whole Constitution is validly and equally made applicable to Jammu and Kashmir, Articles 2 and 3, without any privileges are also applicable. This implies that an Act of Parliament can modify the boundaries and separate an existing State. There does exist a provision for the expression of opinions by the concerned State’s government but there is nothing to suggest that the same was not done in the present case for the reason stated above.

Strangely, there has been some intensely revived citation of the Instrument of Accession signed by Hari Singh to suggest that there has been a violation of trust. This is incorrect as the Instrument, for this purpose, itself gave way to the Constitution of Jammu and Kashmir, which declared it an integral part of the Union of India unconditionally and progressively allowed for an expansion of the role of the Union in the region. This instrument is not very different from those signed by Junagarh, Hyderabad and the other Princely States. This is important because similar arguments on “violation of trust” were given by those vested interests who benefitted by measures such as privy purses amongst other patently undemocratic and discriminatory privileges. These have since been emphatically rejected.

In sum, the Presidential Order of 2019 is a valid exercise of the procedure established by Article 370. This is also in line of the purpose of the Article as well, which has been used since 1950 to progressively integrate the State of Jammu and Kashmir with the Union. While it can be argued that the President’s Rule should be restricted to impermanent decisions for the State, the unique scheme of Article 370, which provides expansive powers of modification to the President, coupled with the assumption of the State Government’s role by the Governor under Section 92 has given rise to these distinctive circumstances that have made the Order constitutionally legitimate.

Guest Post: Article 370: The Constitutional challenge

(This is a guest post by Nivedhitha K.)

The legal trajectory that lead to the abolition of J&K’s special status has already been explained by Bhatia here. This post deals with a constitutional argument to challenge the course of events.

The Presidential Order C.O. 272 notified by the president on 5th August, 2019 through Art 370(1) (d) is the genesis of the subsequent events. The order amended Art 367 in its application to J&K, wherein the phrase ‘constituent assembly of the state’ in Art 370(3) was construed to mean ‘legislative assembly of the state’. In my essay I argue that the Presidential Order C.O. 272 is unconstitutional to begin with, and hence the series of steps that followed the notification have no force of law.

An amendment to the Indian Constitution can be effected through Parliaments’ constituent power under Art 368. However, the Constitution can be amended for its application to the state of J&K through Art 370(1) (d), wherein the concurrence of the government of J&K will have to be obtained before the President notifies such modification. Pursuant to this, various constitutional orders have been notified by the President earlier, and this is how the notorious Art 35A came to be introduced in the Indian constitution.

Now, could Art 370(1) (d) be used to amend Art 370? The answer is in the negative. Art 370(1) (d) could only be used to ‘modify’ provisions other than Art 1 and Art 370 of the Constitution only. This is what distinguishes the present order from the one introducing Article 35A: Presidential Order C.O. 48 (the genesis of 35A) extended certain protections to permanent residents of J&K against the violation of fundamental rights.  The inclusion of Art 35A did not effect a ‘modification’ of Art 370 but merely modified another provision of the constitution (other than Art 1 and Art 370) by issuing an order under Art 370(1) d). On the other hand, Art 370(3) provides for a special procedure through which Art 370 could be modified or abrogated, where the recommendation of the constituent assembly of J&K is a mandatory requirement.

‘Modification’ under Art 370(3)

The central question of law is whether Presidential Order C.O. 272, in which the constituent assembly of the state and the legislative assembly of the state are used interchangeably, is a ‘modification’ under Art 370(3). In order to understand this situation, a reference is made to a similar circumstance in the past. Unamended Article 370, in its explanation clause, had stated that the government of J&K shall mean the Maharaja of J&K. In 1952, through a resolution under Art 370(3), the constituent assembly of J&K ‘modified’ Art 370 by substituting Sadar-I-Riyasat in the place of Maharaja. Subsequently, in 1954 Presidential Order C.O. 48, notified through Art 370(1)(d) which amended Art 367 in its application to J&K, stated that reference to Sadar-I-Riyasat in Art 370 shall be construed to mean the governor. In the case of Mohammad Maqbool Damnoo v. State of J&K, Presidential Order C.O. 48 was questioned. The question that arose was whether using Art 370(1) (d) to “interpret” phrases in Art 370 amounted to ‘modification’ under Art 370(3). The court had observed that the Presidential Order C.O. 48 merely elucidated the Constitutional position that existed in the state, wherein Sadar-I-Riyasat had been functionally substituted by the governor and hence it did not amount to ‘modification’ under Art 370(3). Therefore, the question in the instant case is whether the legislative assembly is a “constitutional substitute” for the constituent assembly. If the answer is in the affirmative, the Presidential Order C.O. 272 would not have ‘modified’ Art 370; otherwise, it would have. If it has modified Article 370, then the order is unconstitutional, since a modification could only be effected by following the procedure under Art 370(3).

Constituent Power and Legislative Power

I will now prove that the legislative assembly of J&K is not a constitutional substitute of the constituent assembly of the state. The premise of my argument is based on the difference between the legislative power (power to enact laws) and the constituent power (power to modify the Constitution) of the legislature. In rigid constitutions, the procedure to amend the Constitution (special majority) is different from the procedure to legislate (simple majority).  The constitutional equivalent of the constituent assembly is the constituent power of the legislative assembly. Therefore, if the legislative assembly of J&K possesses the constituent power to recommend modification to Art 370, then the presidential Order would not have effected a modification.

Crucially, however, the legislative assembly of J&K does not possess the constituent power to recommend a modification. Consider section 147 of the J&K Constitution. Proviso 2 of section 147 declares certain provisions of the constitution unamendable: these are sections 3, 5, 147 of the J&K constitution, and provisions in the Indian constitution that are related to the special status of J&K (i.e, Art 370). Therefore, the legislative assembly does not have the constituent power to amend Art 370 or provisions related to the special status (s. 3 and 5 of the J&K Constitution).

Recommendation under Art 370- through exercise of Legislative or Constituent power?

This argument could be met with a counter-argument that the recommendation under Art 370(3) only requires exercise of legislative power, which shall be effected by passing a resolution through a simple majority. This counter argument will be negated through four arguments which are based on the structure of section 147, Art 370 and the J&K Constitution. Firstly, a slight modification of Art 370, (let’s say to increase the legislative and executive autonomy of J&K) is also permitted only by introducing a recommendation by the constituent assembly. Even if the recommendation only requires a simple resolution under Art 370, section 5 (extent of legislative and executive power of J&K and its interrelationship with India) will have to be amended by the legislative assembly of J&K for it to be in tune with the modified Art 370, for which the legislative assembly of J&K does not have the power. Secondly, when a special majority is required under section 147 for any constitutional amendment, it is ridiculous that an explosive decision such as determining J&K’s relationship with India could be made through a simple majority. Thirdly, the J&K constitution was enacted after the Indian Constitution came into force; consequently, the Constituent assembly members were aware that a recommendation was required under Art 370(3), but expressly prohibited the legislative assembly from modifying status. Fourthly, section 147 states that an amendment to the constitution can be effected only through the introduction of a bill, but proviso 2 of section 147 reads ‘no bill or amendment seeking to make any change..’. The inclusion of the phrase ‘amendment’ seeking to make any change is intended to cover the recommendation under Art 370(3). Hence, the legislative assembly of J&K does not possess the constituent power to modify the special status and hence it is solely within the realm of the constituent assembly.

Effect of section 147 of the J&K Constitution

 The question that follows is: what is the effect of unamendability of provisions related to special status of J&K? Should another constituent assembly be formed for this purpose? The express prohibition placed on the J&K legislature regarding the amendment of Art 370 could mean two things: either that Art 370 is a permanent feature of the Constitution and that the state of J&K shall indefinitely enjoy its special status, or that citizens of J&K did not confer on the legislative assembly the power to make modulations to the special status that they enjoy with regard to India. 

The unamendability effect is countered by two arguments which elucidates that the special status of J&K is an amendable provision of the Indian Constitution. Firstly, the Instrument of Accession, which is the basis of relationship between J&K and India, reserved the discretion of the Maharaja of J&K to enter into arrangements with India in the future (clause 7).  Secondly, neither Art 368 nor Art 370 of the Indian constitution expressly prohibits the modification of Art 370. This would mean that Art 370 is amendable. Therefore, the second effect stands tall, i.e., the people of J&K while entering into a social contract through the constitution with the state of J&K, reserved the right to modify the relationship that they hold with the Union of India. This means that only a plebiscite could modify Art 370.

The theory of dualist democracy proposed by Bruce Ackerman in his book, We the People, differentiates between lower law making and higher law making. He argues that higher law making is when the people directly participate in decision making during ‘constitutional moments’, and lower law making is when the people delegate their law making power to the legislature. The modification of the special status enjoyed by the state of J&K has been expressly regarded as a “constitutional moment” by the Constitution itself. This is reflected by the express prohibition upon amendment by any body other than the Constituent Assembly.

Transfer of Constituent power under Art 356(2)

Even if the argument on ‘modification’ fails in the Supreme Court on the ground that section 147 only prevents unilateral amendment by J&K to Art 370, and even if it is regarded by the judiciary that the legislative assembly of J&K holds the constituent power, my second argument lays certain legal impediments on the way of the parliaments’ exercise of power under Art 356(2). My argument is that transfer of power of the legislature of the state to the parliament under Art 356(2) on declaration of national emergency only permits the transfer of legislative power and not constituent power. The objective of transference of legislative power during a national emergency is only to prevent a state of temporary lawlessness. Therefore, the recommendation of the parliament is without force of law, since it is for the legislative assembly of the state to recommend on exercise of its constituent power (assuming, that is, that my first argument has failed).

In order to strengthen the above argument, the structure of Art 370 is taken into consideration. In contrast to the phrases ‘consultation’ and ‘concurrence’, which are used in Art 370 for decisions regarding the applicability of provisions of the Indian Constitution to J&K, Art 370(3) uses the phrase ‘recommendation’. The usage of the phrase ‘recommendation’ elucidates that the proposal shall come only from the state, excluding the interference of the centre on any degree. 


Through my arguments above, I have explained that the constitutional equivalent of the constituent assembly of J&K, is the constituent power of the legislative assembly. Since the legislative assembly does not hold the constituent power to modify the special status, the Presidential Order C.O. 272 has in effect ‘modified’ Art 370 through colourable exercise of power. If the judiciary fails to declare the order unconstitutional, my argument on transfer of legislative power under Art 356(2) regards the parliament’s recommendation as one with no force of law. Therefore, the Presidential Order C.O. 272 and all the subsequent activities that have its genesis in the presidential order are unconstitutional.

The Article 370 Amendments: Key Legal Issues

In this post, I will attempt to break down the constitutional changes to Article 370, and highlight some key legal issues surrounding them. In essence, to understand what has happened today, there are three important documents. At the heart of everything is Presidential Order C.O. 272, which constitutes the basis for everything that follows. The second is a Statutory Resolution introduced in the Rajya Sabha, which – invoking the authority that flows from the effects of Presidential Order C.O. 272 – recommends that the President abrogate (much of) Article 370. The third is the Reorganisation Bill, that breaks up the state of Jammu and Kashmir into the Union Territories of Ladakh (without a legislature) and Jammu and Kashmir (with a legislature).

To understand the legal issues, we need to begin with the language of unamended Article 370. Article 370, as is well known, limited the application of the provisions of the Indian Constitution to the state of Jammu and Kashmir. Under Article 370(1)(d), constitutional provisions could be applied to the state from time to time, as modified by the President through a Presidential Order, and upon the concurrence of the state government (this was the basis for the controversial Article 35A, for example). Perhaps the most important part of 370, however, was the proviso to clause 3. Clause 3 itself authorised the President to pass an order removing or modifying parts of Article 370. The proviso stated that:

Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.

In other words, therefore, for Article 370 itself to be amended, the recommendation of the Constituent Assembly of J&K was required. Now, the Constituent Assembly of J&K ceased functioning in 1957. This has led to a long-standing debate about whether Article 370 has effectively become permanent (because there is no CA to give consent to its amendment), whether it would require a revival of a J&K CA to amend it, or whether it can be amended through the normal amending procedure under the Constitution.

C.O. 272, however, takes an entirely different path. C.O. 272 uses the power of the President under Article 370(1) (see above), to indirectly amend Article 370(3), via a third constitutional provision: Article 367. Article 367 provides various guidelines about how the Constitution may be interpreted. Now, C.O. 272 adds to Article 367 an additional clause, which has four sub-clauses. Sub-clause 4 stipulates that “in proviso to clause (3) of Article 370 of this Constitution, the expression ‘Constituent Assembly of the State referred to in clause (2)” shall read “legislative Assembly of the State.”

In other words, this is what has happened. Article 370(1) allows the President – with the concurrence of the government of J&K (more on that in a moment) – to amend or modify various provisions of the Constitution in relation to J&K. Article 370(3) proviso states that Article 370 itself is to be amended by the concurrence of the Constituent Assembly. C.O. 272, therefore, uses the power under 370(1) to amend a provision of the Constitution (Article 367) which, in turn, amends Article 370(3), and takes out the Constituent Assembly’s concurrence for any further amendments to Article 370. And this, in turn, becomes the trigger for the statutory resolution, that recommends to the President the removal of (most of) Article 370 (as the Constituent Assembly’s concurrence is no longer required).

This is very clever. Is it legal? One serious objection is Article 370(1)(c). Article 370(1)(c) (unamended) stated that “notwithstanding anything contained in this Constitution, the provisions of Article 1 and this Article shall apply in relation to that State.” This is absolutely crucial, because it makes clear that the power of the President to amend provisions of the Constitution in relation to J&K does not extend to Article 1 and “this Article”, i.e., Article 370 itself. 370(1)(d) makes it even clearer where it refers to the “other provisions” of the Constitution that may be altered by Presidential Order (and this is how the present Presidential Order is different from previous ones, such as those that introduced Article 35A). Article 370 itself, therefore, cannot be amended by a Presidential Order such as C.O. 272 (the one exception was a clarificatory amendment, which is not analogous to this one).

Now, it may be immediately objected that C.O. 272 does not amend Article 370: it amends Article 367. The point, however, is that the content of those amendments do amend Article 370, and as the Supreme Court has held on multiple occasions, you cannot do indirectly what you cannot do directly. I would therefore submit that the legality of C.O. 272 – insofar as it amends Article 370 – is questionable, and as that is at the root of everything, it throws into question the entire exercise.

There is a second important point to be noted here. C.O. 272 says – as it must – that the concurrence of the government of the state of Jammu and Kashmir has been taken. However, Jammu and Kashmir has been under President’s Rule for many months now. Consequently, actually, the consent is that of the Governor. However, there are two serious problems with basing C.O. 272 upon the consent of the Governor. The first is that the Governor is a representative of the Central Government – like the President. In effect, therefore, Presidential Order 272 amounts to the Central Government taking its own consent to amend the Constitution.

There is, however, a more important issue. President’s Rule is temporary. It is only meant to happen when constitutional machinery breaks down in a state, and an elected government is impossible. President’s Rule is meant to be a stand-in until the elected government is restored. Consequently, decisions of a permanent character – such as changing the entire status of a state – taken without the elected legislative assembly, but by the Governor, are inherently problematic. Formally, they may be within the bounds of legality; however, as the Supreme Court held in D.C. Wadhwa, on the question of re-promulgation of Ordinances, formal legality can nonetheless, in effect, amount to a fraud on the Constitution. Using the Governor to sign off on a Presidential Order that fundamentally alters the constitutional character of a federal unit appears, to me, to be straying dangerously close to the constitutional fraud line.

For these two reasons, therefore – first, on the indirect amendment of Article 370(3) proviso via 370(1), and secondly, on the use of the Governor as a substitute for the elected assembly in a matter of this kind – I would submit that there are serious legal and constitutional problems with Presidential Order C.O. 272 – which, of course, forms the basis of both the statutory resolution and the Reorganisation Bill.

The Supreme Court on Mandatory Voice Samples – II: The Rise of the Executive Court

[Editorial Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against the Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances.]

In the previous post, Abhinav Sekhri highlighted some of the flaws with the Supreme Court’s judgment on the mandatory taking of voice samples from an accused party. In this post, I want to build upon Sekhri’s arguments, and make two further points.

To start with, in order to prevent misunderstanding, let us get a few basic points out of the way. The debate before the Court wasn’t so much about whether the compelled taking of voice samples would violate the guarantee against self-incrimination under Article 20(3) of the Constitution. The two disagreeing judges who referred the case to this three-judge bench did not disagree on that point, and most of the High Courts did not either. After Kathi Kalu, indeed, it would be difficult (although not impossible) to argue that the taking of voice samples is hit by the Article 20(3) bar.

Nor was the case about whether compelled voice samples violated the fundamental right to privacy. After Puttaswamy, this would be an interesting legal question to analyse, but it was not the question that the Court was called upon to answer. No: what the case was about was whether there existed a statutory basis upon which voice samples could be taken without consent. It was this question that the Court answered in the negative, and then went on to “fill the gap” by using Article 142, and allowing for it anyway.

Why does this matter? It matters because this background is key to understanding just how flawed – and how dangerous – paragraph 24 of the Court’s judgment is. Paragraph 24 states:

Would a judicial order compelling a person to give a sample of his voice violate the fundamental right to privacy under Article 20(3) of the Constitution, is the next question. The issue is interesting and debatable but not having been argued before us it will suffice to note that in view of the opinion rendered by this Court in Modern Dental College and Research Centre and others vs. State of Madhya Pradesh and others, Gobind vs. State of Madhya Pradesh and another and the Nine Judge’s Bench of this Court in K.S. Puttaswamy and another vs. Union of India and others the fundamental right to privacy cannot be construed as absolute and but must bow down to compelling public interest. We refrain from any further discussion and consider it appropriate not to record any further observation on an issue not specifically raised before us.

There is a lot to unpack in this paragraph. The first thing to note is that this is a rank sleight of hand. The reason why Puttaswamy and privacy was not raised before the Court was that there was no reason for it to be raised! As I mentioned above, the questions before the 2012 Bench – where the two judges disagreed – were two-fold: whether the taking of voice samples was hit by the Article 20(3) bar, and if not, whether it was affirmatively authorised by any provision in the Code of Criminal Procedure. The two judges agreed that 20(3) did not apply, and disagreed on whether statute applied. Now, if the Supreme Court intended to override the absence of statutory authorisation by invoking Article 142, it would have to – necessarily – examine first whether there existed any other statutory or constitutional bar that would prevent it from doing so (because recall that Article 142 cannot be applied contrary to statute or the Constitution). In other words, therefore, in applying Article 142, the Court could not simply dodge the privacy question by saying that it was “not specifically raised before us.” That excuse went out of the window the moment Article 142 came in through the back door.

In other words, the Court would have it both ways. Expand the scope of the case, of its own accord, to issues that were never in the frame, and then dodge an examination of those issues by claiming they were never argued. The only possible reaction to this sleight of hand begins at 30 seconds of this video:

Consequently, it was not enough for the Court to give us the boilerplate phrase of “privacy is not absolute and must bow down to compelling public interest.” Nobody has ever made the claim that privacy is “absolute”, and the Court gets no brownie points for tearing down that little straw-man for the umpteenth time.

But there is a deeper problem with paragraph 24, which would preclude the above discussion from even happening in the first place. And that is – as Sekhri pointed out in his post – the established position that the word “law” under Articles 19 and 21 does not include judicial orders. This point has been discussed at some length before, and I summarise it here: our constitutional scheme envisages a two-step process before an infringement of rights can be justified. First, there must exist State-enacted law that, prima facie, is found to infringe a right. And secondly, upon a challenge, a Court must review that law to check whether it is a reasonable restriction upon the fundamental right – and strike it down, if not. The point of this two-step process is to ensure that rights are adequately safeguarded, and that the supreme deliberative and elected body – Parliament – must take the first decision in that regard. For very good reason, therefore, the Constitution does not grant power to the Courts to infringe rights of their own accord.

The implication of this, therefore, is that it was not for the Court to say that privacy was not absolute, and would have to bow down to compelling public interest. That analysis, in the first instance, would be Parliament’s to make when deciding whether or not to amend the CrPC – and for the Court to review if Parliament’s assessment was challenged. The moment that it was found that the use of Article 142 would prima facie violate privacy – which it undoubtedly does – there was no question of the Court using Article 142 powers. That – as Sekhri pointed out – is the lesson of Kharak Singh and every other case after it, until Rupa Ashok Hurra.

This brings me to my second, broader point. The Supreme Court’s judgment reflects perhaps most starkly a phenomenon that we can label as the “Executive Court.” What began as the Supreme Court stepping in to fill a vacuum left by an inactive Executive, is now transforming into the Supreme Court becoming indistinguishable from the Executive. Instead of the rule of law, protection of rights, precedent, the separation of powers, and judicial reasoning (all hallmarks of a constitutional court) guiding its decisions, the executive logic of an undefined, larger “public interest” (that only the Court knows), which is to be achieved by tossing aside all other constraints that may stand in the way, has come to dominate important cases (the NRC is perhaps the starkest example of this). So: Parliament has made no provision for the taking of voice samples, and without Parliament’s approval, executive agencies cannot act? No problem – the Court will step in and sanctify those actions judicially. This, for obvious reasons, is dangerous in many respects.

In the present case, this is revealed most starkly by the Court’s repeated invocation of the mantra, “procedure should be the handmaiden of justice.” As Sekhri pointed out in his post, this is yet another sleight of hand: the Court effectively borrowed this phrase from the context of civil litigation – conducted between parties of equal standing – and applied it to criminal litigation, where procedural safeguards are literally all that stand between the individual and the unchecked might of the State. The fact that the Court viewed procedural safeguards as impediments to achieving “true justice” is the clearest statement yet of how indistinguishable it seems to have become from the Executive.

Perhaps the Court should have dug a little deeper into its own history. Had it done so, it would have found another, telling quote: “the history of personal liberty,” wrote a certain Justice Hans Raj Khanna, in a certain well-known dissent, “is largely the history of insistence upon procedure.”

Guest Post: The Supreme Court on mandatory voice samples – I: Some glaring conceptual errors

[Editorial Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against the Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances.]

(This is a guest post by Abhinav Sekhri, the first in a two-part series. On 2nd of August, a three-judge bench of the Supreme Court decided the case of Ritesh Sinha v State of UP, dealing with the question of whether an accused could be compelled to provide voice samples during the course of a criminal investigation. The issue had divided many High Courts – some of which had returned detailed judgments – and had also divided a two-judge bench of the Supreme Court, where the judges had disagreed whether the Code of Criminal Procedure authorised this form of compulsion. The three-judge bench was called upon to resolve the issue. The Bench found that there was no statutory authorisation for the process; but it then noted that “procedure was the handmaiden of justice”, and decided to “fill in the gap” by invoking its powers under Article 142 of the Constitution to do “complete justice”, and authorised Magistrates to demand voice samples anyway.)

“In the light of the above discussions, we unhesitatingly take the view that until explicit provisions are engrafted in the Code of Criminal Procedure by Parliament, a Judicial Magistrate must be conceded the power to order a person to give a sample of his voice for the purpose of investigation of a crime. Such power has to be conferred on a Magistrate by a process of judicial interpretation and in exercise of jurisdiction vested in this Court under Article 142 of the Constitution of India. We order accordingly and consequently dispose the appeals in terms of the above.”

This decision by a three-judge Bench of the Supreme Court in Ritesh Sinha v. State of U.P. [Crl. Appeal 2003 of 2012, decided on 02.08.2019 (“Ritesh Sinha”)], is the latest iteration of the Court using its extraordinary powers under Article 142 for “doing complete justice”. This time, “complete justice” has been done by (i) ignoring elementary differences between civil and criminal procedure; (ii) creating new law without any modicum of precision or clarity, and; (iii) by ignoring past precedent on using Article 142 itself, with the Court choosing, of its own volition, to give the law a course that necessarily infringes fundamental rights. 

These features have adorned previous decisions of the Supreme Court as well. But very rarely do we get an example of all three working together with such destructive potency, as it has been done in Ritesh Sinha to achieve the result mentioned at the outset of this post.

Civil v. Criminal Procedure   

Throughout Ritesh Sinha, the Court is at pains to remind us that procedural law mustn’t become a thorn in the side of substantive justice — instead, procedural law must serve its role as the “handmaiden” of justice. The opinion turns to old cases, as if to suggest that its views are hardly new but rather a reflection of time-honoured tradition. But this is a ruse, dear reader: By relying upon the distracting prose of prior precedent, Ritesh Sinha tries to throw sand in your eyes. 

Why? Because all of those flowery words are germane to the context of civil litigation. Here, the idea of procedural law is to help ensure litigation places parties on an equal footing for the Court to do justice. It does so by removing privilege and secrecy, bringing before the Court all possible material and giving both sides equal opportunities to advance their case. Therefore, when there are doubts about what course procedural law should take, the answer is clear: take the path that helps the litigation to proceed.

If civil procedure is planet Earth, then criminal procedure is the moon. Police investigations are, by definition, not a situation with two equal players. Till the time a case is under investigation, the police hold all the cards. If it is a cognizable case, then the police can go and arrest anyone, question anyone, practically conduct searches anywhere, to gather material. And there is no duty to share this material with the subject of a future prosecution: an accused person does not even have the right to get a copy of the FIR registered against her.

Procedural law is not a handmaiden of justice in this context: it is the only sword and shield in the hands of an ordinary person to resist the truly awesome might of the State. It is the only rope I can cling onto for securing some measure of restraint against the State when it proceeds down the brutally invasive path of a criminal investigation. It is, also, the golden thread that protects an individual from being condemned unfairly to a conviction and the badge of guilt and shame that it must carry.

But in its earnest efforts at “doing complete justice”, the Supreme Court seems to have ignored these differences. If not, then the Court seems to have imagined a different criminal justice system from the one that most ordinary Indians are subject to. Perhaps it would help if rather than only quote prior precedent, the Court resume past practices of actively engaging with the various facets of the criminal justice system by doing surprise inspections at prisons and police stations. Maybe then the Court might see the police practices that coerce an innocent person to implicate herself falsely just to end the brutal harassment of interrogation. 

Where is the Law?

Ritesh Sinha is not the first or the last time that the Court decides to “fill the gaps” and create law rather than wait for Parliament to do its job. But, if you are deciding to deal another hammer blow to the system of the separation of powers and create law, you might at least do a decent job of it. Previous instances have included detailed guidelines being passed in Vishaka, as well as a fully detailed draft legislation being blessed in Prakash Singh; so one would expect that the Court create judicial legislation with some measure of precision.

Sadly, that doesn’t happen. The paragraph quoted at the outset is all we have by way of a law. Rather than pen a paragraph with the many gaps left behind by the Court in its effort to plug a single one, below is an illustrative list of questions, based on all that is left unclear:

  • What kind of Judicial Magistrate is conferred the power?
  • Is the Court acknowledging that no existing provision in the Cr.P.C. could confer this power on Magistrates?
  • Will a Magistrate / Sessions court not have the power to compel persons to give voice samples during trial? (since the judgment specifies investigation)
  • Who will take the sample? Must it be before officials of the Forensic Science Laboratory or can the Investigating Officer take samples? Or will they be taken before Court?
  • Is custody a necessary requirement for taking voice samples? 
  • What kind of questions can be asked during this process? Will earlier guidelines offered by the Court in the Zee extortion case be valid?

None of these questions are immaterial, and all of them are bound to start coming up sooner or later before courts, to clog our system with more cases and contribute to rising delays. That is the cost of “doing complete justice”, and not waiting for Parliament to do its job.

Atlas, Shrugged?

The premise behind the title of Ayn Rand’s famous novel was simple: Atlas, the Greek Titan, is supposedly keeping the Earth aloft on his shoulders; so what happens if Atlas shrugged? Apply this in context of the Indian Constitution and the fundamental rights of citizens, and we find that the Supreme Court has been placed in the role of Atlas. It bears the brunt of our crazy system on its shoulders, to ensure that the fundamental rights of persons are protected as the cogs of this machine keep ticking. Ritesh Sinha seems to suggest that our Atlas has shrugged, and it is perhaps time to start rethinking our approach to protect fundamental rights in the Indian polity.

The signs had come at least a decade ago, when the Court used Article 142 in Shahid Balwa [(2014) 2 SCC 687)] to go ahead and completely remove the constitutional right of appeal under Article 226 of persons who had been embroiled in the “2G Scam” cases. On that occasion, this removal of right was justified on a balancing logic, keeping in mind the overwhelming public interest in a quick prosecution (but it still took almost a decade to complete the trial, which ended in acquittals). This resurfaced in the “Coal Scam” cases, where again the same tactic was used and justified away. 

What makes Ritesh Sinha different, is that while the “2G Scam” and “Coal Scam” orders also involved a clear derogation of rights, this was limited to a particular class of cases. This time around, the criminal procedure code itself stands amended by the Court through Article 142, in spite of having noted the possible derogation of fundamental rights that this involved: because in paragraph 24 of Ritesh Sinha, the Court concedes how, at least at the threshold level, its decision can infringe the fundamental right to privacy.

Now at this point, the Court was bound to follow prior precedent set by a Constitution Bench in Prem Chand Garg [AIR 1963 SC 996], where it was held that Article 142 cannot be used to pass any orders inconsistent with fundamental rights. But there is no mention of Prem Shankar Shukla in the judgment. Instead, after noting how the fundamental right to privacy can be infringed, the Court in Ritesh Sinha justifies the derogation on grounds of “compelling public interest.”

Even if you disagree with the idea of precedent and that the sound restraint advised in Prem Chand Garg should not be controlling subsequent benches, the Court’s attempt in Ritesh Sinha to justify derogations from the fundamental right to privacy is flawed at a very basic level. In the haste to limit the fundamental right, the Court somehow forgets that such restraints must be through procedure established by law, and that judicial orders do not fall within the definition of “law” for this purpose. It is painfully ironic that the one privacy decision that ignored the Court’s attention in Paragraph 24, i.e. Kharak Singh, saw this issue being discussed at some length.

Conclusion: History Repeats Itself

In August 1961, an Eleven Justices’ Bench of the Supreme Court delivered separate opinions in State of Bombay v. Kathi Kalu Oghad [(1962) 3 SCR 10]. In Oghad as well, the Court chose to limit a fundamental right [Article 20(3)] by operating on unrealistic presumptions about criminal investigations involving an exchange between equal participants. 

In August 2019, nearly sixty years later, the Supreme Court has made the same mistake. As I have argued recently, some reasons behind the outcome in Oghad were probably the peculiar politics of 1961 — police reform was considered imminent, emboldening the Court to show more faith in the police by allowing it more investigative leeway. Maybe the only way to make sense of the judgment in Ritesh Sinha is also by turning to the peculiar politics of our time, and removing naive notions of the Court being a counter-majoritarian protector of our civil rights.  

ICLP turns 6 years old :: “We couldn’t remember their names…”

Today marks the sixth birthday of the Indian Constitutional Law and Philosophy Blog. As always, I remain deeply grateful to all our readers, commentators, and guest-writers, commentators. Thank you for contributing towards a living, public culture of constitutionalism.

Historically, on the blog’s birthday, I have highlighted a particular aspect of the judiciary that has stood out in the previous year: examples include the office of the Chief Justice, access to justice, and legal scholarship around the courts. This, however, has been a somewhat extraordinary year, and this blog post will depart from the convention.

The role of the judiciary as the guardian of fundamental rights, standing between the individual and the State, has always been crucial to the functioning of democracy. To those of us engaged with constitutional law, there are times when we feel that the Court has performed this role well, and times when it has not. On this, disagreement is both inevitable, and necessary. Yet, however much we disagree with a judgment, we also recognise that the authority to judge remains vested in the Court, as much as it remains our prerogative to criticise how the Court chooses to exercise that judgment.

But in the last year, we have seen something else. We have seen cases where the issue is not whether the Court correctly exercised judgment in a contest between the individual and the State, but where the Court itself became an aggressor against fundamental rights. Against that aggression, as we have also seen, there is neither recourse nor appeal. And when that happens, it is long past time to take a step back, and to take a long, hard look at the path we are on, and to ask where it will take us.

But above all else, it is important, in the aftermath, to oppose the normalisation of events such as these, to ensure that they are not glossed over or buried, and to insist that even when the Supreme Court does it, it is – and always will remain – unacceptable. That is the task of this post.

The first event: on 19th April 2019, a former employee of the Supreme Court alleged that the Chief Justice had sexually harassed her. What happened next is well-documented. The Chief Justice constituted a three-judge bench to hear the case against himself, placed himself on it, heard the case against himself – but the judicial order did not record his presence on the bench. High law officers questioned the complainant’s motives, and alleged conspiracies. A second bench was constituted. It also muttered darkly about conspiracies, and then passed an order asking a retired Supreme Court judge to investigate said conspiracies. Meanwhile, three other Supreme Court judges constituted themselves into an “In-House Committee”, one of whom was immediately required to recuse himself when the complainant pointed out that he had already made a public statement expressing support for the accused. That judge was replaced. The In-House Committee then began its proceedings. The complainant – according to her testimony – was told that it was an “informal committee” that was not required to follow legal procedures or best practices when it came to sexual harassment complaints. Among other things, the proceedings were not video-graphed, she was not provided with copies of her testimony, and not allowed access to a lawyer. At this point, she withdrew from the proceedings, and the Committee swiftly proceeded to grant a “clean chit” to the accused. There the matter was buried, and there it still lies buried.

In this farcical process, no fewer than eight judges of the Supreme Court were involved at various points. The sexual harassment case, then, was an institutional failure. As an institution, the Court undermined every last principle that has been struggled for and fought over interminable years: attacking the complainant’s integrity, alleging conspiracy, pronouncing the accused innocent at the start, exacerbating power imbalances rather than mitigating them, and throwing procedural fairness into the waste-bin. And at the heart of all this, of course, was an individual: the complainant, whose treatment should shame all of us who claim to care for and speak about human rights.

No apology will suffice, but it must be made – we are sorry; and in an effort to contribute to the struggle of memory against forgetting, this blog will continue – as it has so far – to preface posts about the Supreme Court with a reminder of this institutional injustice, until structures are put in place to ensure it does not happen again.

The second event is a continuing one. It is about those women, men, and children whose lives have been damaged, broken, and in some cases destroyed, by the National Register of Citizens [“NRC”]. The NRC process took the form it has on the back of a 2014 judgment of the Chief Justice and Rohinton Nariman J., where the highest Court in the land saw no problem in endorsing phrases such as “invasion of a vast horde of land-hungry immigrants” and “the vultures will be gathered together” to make an evidence-free case for taking the NRC process out of the hands of an apparently recalcitrant government, and accelerating it under the aegis of the Court itself. What followed included opaque and secretive proceedings to determine methods of identification – methods that further disadvantaged the most vulnerable – and a brutal set of deadlines, imposed by the Court in the teeth of protests by the government, of all things, for an immensely complex process that risked (and as we now know, has resulted in) thousands of incorrect exclusions. Once again, these decisions were taken without oversight or check, because they were being taken by the Supreme Court itself (often behind closed doors), the very entity that was supposed to preserve the rule of law from governmental overreach.

All this had human consequences. These consequences were measured by death, where even one death is too many: Noor Neher Begum (14), Jaynal Ali (41), Rahim Ali (37), Ambar Ali (59), Kulsum Begum, Amar Majumder, and Ashraf Ali (88) are just some of the individuals who were driven to take their own lives, reportedly due to exclusions from the NRC. As for the rest, we probably cannot remember their names.

And when we reach a situation where human beings refuse to be rescued from their flooded homes until they’ve managed to salvage their NRC documents – risking life and limb in the process – we probably need to ask whether the Supreme Court has dismissed humanity in limine (and with costs).

None of this, it needs to be stressed, is normal: immigrant-baiting rhetoric from a constitutional court is not normal; loose, evidence-free statements about migration in a courtroom are not normal; opaquely devising methods of identification and then imposing them – along with deadlines – upon millions of citizens by judicial firman is not normal; and becoming an aggressor against rights rather than its protector is far from normal.

But that is where we are, and that is where the Court is. There perhaps remains nothing else but to acknowledge our own complicity, to try and remember the names, and to wonder, along with Adorno, about the “shame of still having air to breathe, in hell.”