The Indian Constitutional Law and Philosophy blog welcomes Mihir Naniwadekar as an editor and contributor. Mihir, a practicing advocate in Pune and Mumbai, has been a long-time friend of the blog; we look forward to his insights on a regular basis.
Some of his previous posts:
(This is the second post in a two-part series by Mihir Naniwadekar.)
In an earlier post, we had looked at the decision and reasoning of the Bombay High Court in Civil Writ Petition 6996 of 2019 (Vijay Namdeorao Wadettiwar v State of Maharashtra). The Court held that appointing RVP as a cabinet minister (in circumstances when there was no possibility of his becoming a member of the legislative assembly during the remainder of the term of the assembly) was not liable to be quashed by the Court as being a fraud on the Constitution, and the remedy (if any) was with the electorate. The earlier post argued that the constitutional history relied on by the High Court did not entirely support the Court’s conclusion in that regard. This post considers how one can look at the concept of “fraud on the Constitution” and how such a concept may be tested in similar facts.
Evolving a framework for judicial interference in ‘political’ decisions
In order to consider what test should be applied in situations such as these – where the Court is called on to interfere in something generally considered a ‘political’ decision – it may be helpful to consider a recent example from the United Kingdom – R (on the application of Miller v The Prime Minister [Miller (No.2)]. The case concerned a challenge to the Prime Minister’s advice to the Queen for proroguing Parliament. The power to prorogue is a prerogative power of the Crown.
The Supreme Court of the United Kingdom explained [Para 35] that two distinct issues must be separated in considering prerogative powers:
The first is whether a prerogative power exists, and if it does exist, its extent. The second is whether, granted that a prerogative power exists, and that it has been exercised within its limits, the exercise of the power is open to legal challenge on some other basis. The first of these issues undoubtedly lies within the jurisdiction of the courts and is justiciable, as all the parties to these proceedings accept… The second of these issues, on the other hand, may raise questions of justiciability. The question then is not whether the power exists, or whether a purported exercise of the power was beyond its legal limits, but whether its exercise within its legal limits is challengeable in the courts on the basis of one or more of the recognised grounds of judicial review…
Having so held, the Court considered the standards by which the lawful limits are to be identified, to determine whether the power has indeed been exercised within those limits. After further analysis of the relevant principles, the Court considered that the fundamental principles of parliamentary sovereignty and accountability to the Parliament were part of the limits on the very existence of the power to prorogue. And the limit was then expressed using the following test [Para 50]:
… the relevant limit upon the power to prorogue can be expressed in this way: that a decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course…
In other words, an effects-based test was adopted: is the exercise of the power such that it has the effect of frustrating (without reasonable justification) a certain fundamental principle? Merely saying that a power is a “prerogative” power is unhelpful: no power, not even a prerogative power, can be exercised in a manner which has the effect of frustrating a fundamental constitutional value. In other words, for any and every power, there is an inherent limit in a constitutional setup that the power cannot be exercised to violate certain fundamental principles. The doctrine of “fraud on the Constitution” can perhaps be understood in such sense in the constitutional context.
That may help us understand why appointing criminals to be ministers is not a “fraud on the Constitution” (because it is no part of the basic structure to prevent criminals taking part in politics, however much one may ethically detest it) while re-promulgating ordinances is (because it is a basic feature of the Constitution that laws must be made by an elected legislature exercising its legislative powers). Hence, re-promulgating ordinances is a “fraud on the Constitution”, because the power to issue ordinances is limited to doing so only in the situation of absolute necessity and ensuring legislative oversight as soon as practicable. To re-promulgate those ordinances would mean that this legislative oversight is lost: and the basic feature is therefore negated. As Justice Chandrachud observed in Krishna Kumar Singh:
… the court must adopt an interpretation which furthers the basic constitutional premise of legislative control over ordinances. The preservation of this constitutional value is necessary for parliamentary democracy to survive on the sure foundation of the rule of law and collective responsibility of the executive to the legislature. The silences of the Constitution must be imbued with substantive content by infusing them with a meaning which enhances the rule of law. To attribute to the executive as an incident of the power to frame ordinances, an unrestricted ability to create binding effects for posterity would set a dangerous precedent in a parliamentary democracy…
To come to the example given by the Bombay High Court of a person who is not a member of the Assembly being re-appointed over and over again by the simple expedient of him resigning before the six-month period is over: that is again a “fraud on the Constitution”. But why? The answer is perhaps because the relevant basic feature engaged is of legislative oversight over Minsters and the executive; and appointing the same person over and over again has the effect of frustrating that basic feature without any reasonable justification at all.
Justice Krishna Iyer’s statement in Shamsher Singh is well known, that “Not the Potomac, but the Thames fertilises the flow of the Yamuna…” The 4th edition of Halsbury’s Laws of England noted that since ministers must always be responsible to the Parliament, and the responsibility is both personal as well as collective. The rationale for the British convention that ministers must always be members of Parliament is that this ensures that ministers cannot avoid criticism of their ministry and are always accountable to Parliament for the conduct of their ministry. If it were open to become a minister without any requirement whatsoever to become a member, then this essential element of accountability to the Parliament is lost. The High Court of Australia held in Australian Capital TV & New South Wales v Commonwealth of Australia:
The very concept of representative government and representative democracy signifies government by the people through their representatives. Translated into constitutional terms, it denotes that the sovereign power which resides in the people is exercised on their behalf by their representatives. The point is that the representatives who are members of Parliament and Ministers of State are not only chosen by the people but exercise their legislative and executive powers as representatives of the people. And in the exercise of those powers the representatives of necessity are accountable to the people for what they do and have a responsibility to take account of the views of the people on whose behalf they act…
In SR Chaudhari’s case, following this line of reasoning and expressly referring to these authorities, the Supreme Court held the second appointment of the same person as Minister (without being elected) as being invalid. In reaching this conclusion, the Court also approved of scholarly commentary that “It is basic to the system of responsible government that the Prime Minister and all the other ministers be members of parliament…” and further held:
Parliamentary democracy generally envisages (i) representation of the people, (ii) responsible government and (iii) accountability of the Council of Ministers to the Legislature. The essence of this is to draw a direct line of authority from the people through the Legislature to the Executive… The very concept of responsible Government and representative democracy signifies Government by the People. In constitutional terms, it denotes that the sovereign power which resides in the people is exercised on their behalf by their chosen representatives and for exercise of those powers, the representatives are necessarily accountable to the people for what they do. The Members of the Legislature, thus, must owe their power directly or indirectly to the people….
SR Chaudhari is clear authority for the proposition that ministerial responsibility is indeed a fundamental feature of the Constitution.
The above analysis has suggested one tentative conception of approaching the question of “fraud on the Constitution”; and it is argued that this conception appears to be in line with the approach of a 7-Judge Bench of the Supreme Court (per Chandrachud J.) in Krishna Kumar Singh. What needs to be examined is if the impugned action (the appointment of RVP) is such that it has the effect of frustrating a fundamental constitutional value (ministerial responsibility).
Conclusion: “Fraud on the Constitution” and Ministerial Responsibility
Adopting this approach, it could be contended that the effect on the underlying value of responsible government and legislative oversight is such that if a person is in a position of being unable to face by-election, then in every case that person is ineligible to be Minister. Readers will recollect that in the Constituent Assembly, one of the reasons given by Dr. Ambedkar for rejecting the proposed amendment of Mohd. Tahir was that it was desirable to leave open the flexibility to the government to appoint the best person as minister “on the assumption that he shall be able to get himself elected…” In a situation of a vacancy shortly before the expiry of the term of the legislature, when no by-election at all is possible, then that vacancy should be filled up only by an existing member of the assembly: not because the Constitution requires this in express terms, but because not doing so will in every case have the effect of negating an underlying constitutional value. True, the Constitution permits a non-member to be a minister: but that permission is circumscribed by the underlying values which mandate that the person so appointed must necessarily be one who is capable of becoming a minister. The question which was left open in SR Chaudhari (“we have declined an invitation of learned counsel for the appellant to express our opinion on the question whether a non-legislator can be appointed as a Minster, if on the date of such appointment, he suffers from a constitutional or statutory disqualification to contest the election within the next six consecutive months…”) can perhaps be answered in this manner and contrary to what emerges from the Bombay High Court decision. This fits in well with the decision of the Supreme Court not just in SR Chaudhari but also in BR Kapur; and also does not detract from the general rule that a non-member who is capable of being elected in six months can be so appointed.
Even if one were to take a different view, the analysis required to uphold the appointment would be of a somewhat different nature; and would have to focus on the effect of the appointment on the underlying constitutional value. It would have to be argued, perhaps, that the principle of collective responsibility is in itself sufficient to ensure that there is no adverse effect on the underlying constitutional value of ministerial responsibility. Indeed, while one of Dr. Ambedkar’s reasons (which we have already noted in the earlier post) for rejecting Mohd. Tahir’s amendment was that there was an underlying assumption that the minister would get elected as member, Dr. Ambedkar also offered another reason for rejecting the amendment:
…My second submission is this, that the fact that a nominated Minister is a member of the Cabinet, does not either violate the principle of collective responsibility nor does it violate the principle of confidence, because if he is a member of the Cabinet, if he is prepared to accept the policy of the Cabinet, stands part of the Cabinet and resigns with the Cabinet, when he ceases to have the confidence of the House, his membership of the Cabinet does not in any way cause any inconvenience or breach of the fundamental principles on which Parliamentary government is based…
The argument would then be that the framers regarded collective responsibility in itself as being sufficient to protect the underlying constitutional value; and hence, the fact that a particular minister may not even be capable of becoming a member of the assembly is irrelevant. That is certainly a proposition which would require careful consideration: however, it is suggested that this reasoning – that collective responsibility is in itself sufficient to ensure that the fundamental value of ministerial responsibility is not lost – does not sit comfortably with the reasoning of the Supreme Court in Kapur and Chaudhari.
Perhaps, the decision of the Bombay High Court – if carried in appeal to the Supreme Court – may give the Supreme Court a chance to further consider how the doctrine of “fraud on the Constitution” is to be applied and also to elucidate how exactly the fundamental constitutional value of ministerial responsibility is to be protected in the constitutional scheme.
[The author is grateful to Gautam Bhatia for his comments on a draft version of this essay.]
(This is the first of a two-part guest series by Mihir Naniwadekar.)
I. The Facts and the Decision
Mr. Radhakrushna Vikhe Patil [“RVP”] was elected as a Member of the Maharashtra Legislative Assembly in the 2014 state elections, as a candidate of the Indian National Congress. He was Leader of the Opposition in the Assembly.
In early June 2019, he resigned from the Assembly; and ceased being Leader of the Opposition. Disqualification proceedings before the Speaker remain pending, where one of the issues would be whether the provisions of the Anti-Defection law can be avoided by resigning from the Assembly before being declared as a defector. Under the Representation of the People Act, 1951, it was not possible to hold a by-poll for RVP’s assembly seat (or any other by-poll). This was because the term of the Assembly itself was to get over in less than six months.
However, on 16th June 2019, RVP was appointed as a Cabinet Minister by the ruling alliance. There was no possibility that RVP would become a member of the Assembly for the remainder of the term of the Assembly, as there was no question of any by-election being held.
RVP’s appointment as a Minister (along with some other appointments) was challenged before the Bombay High Court in Civil Writ Petition 6996 of 2019 (Vijay Namdeorao Wadettiwar v State of Maharashtra). It was principally argued that (a) the procedure adopted to induct RVP into the Cabinet resulted in defeating the Anti-Defection Law; and (b) the provisions of the Constitution mandated that someone who is not a member of the Assembly but is nonetheless made a Cabinet Minister must be elected as a member of the Assembly within a period of six months: as there was no scope at all of elections being held or of RVP becoming a member of the present Assembly at all, his induction as Cabinet Minister was unconstitutional.
In a detailed judgment, a Division Bench of the Bombay High Court (S.C. Dharmadhikari & G.S. Patel JJ.) rejected these contentions. The Court held:
Before proceeding further, one further facet of the judgment of the Bombay High Court is worth noting. This blog has often spoken of ‘judicial evasion’, when important issues of constitutional law are ‘footballed’ by the Courts such that a decision is essentially rendered academic. On the other hand, the present judgment of the Bombay High Court is, with great respect, a model of how constitutional adjudication can take place. The writ petition was filed on 19 June 2019. The Petition was heard first on 24 June 2019; and the Court issued notice on the petition. On 5 August 2019, the Court noted that one of the Respondents was not served because he was absent from his official residence. The Court directed the Bailiff of the local District Court to complete service within a further two weeks. The petition was directed to be listed in Court on 4 September 2019. Rule was issued; made returnable forthwith, and the Petition was finally heard: with the dictation of the oral judgment commencing in open Court on 9th September and concluding on 13th September 2019. The judgment demonstrates that even in India – with an explosion of the Court dockets resulting in extraordinary pressure on judges – it is possible for substantial questions of law of public importance to be adjudicated in a quick and efficient manner.
With that introduction, we can now proceed to try to understand the judgment more comprehensively.
II. On ‘Justiciability’
There appears to be some tension in saying that there may be some extreme cases where the Courts may intervene [Para 64], and at the same time maintaining that such matters are best left to the people [Para 66]. The Court explains that this tension arises because the Courts must ‘strike a balance’ [Para 68]. In the same paragraph, the Court suggests that sometimes, all that the Court can do is to bring the facts and relevant constitutional principles on record and then leave the decision to the voters. But is doing this the entire extent of the “intervention” possible for Courts? Or are there may be some type of cases where the Court will actually intervene in the form of quashing the relevant appointment?
It is respectfully submitted that the better understanding of the Court’s decision is not that its ‘intervention’ will always be limited only to bringing the facts to the notice of the voters. The Court must be taken, instead, as having held that while in a majority of cases of this type the Court’s ‘intervention’ will be limited (in the sense of concisely placing on record the relevant facts without striking down the impugned action), there may be instances where actual intervention is justified. This reading is to be preferred, because the Court did take note of other judgments where the Courts had intervened in the form of striking down an action. One illustration is SR Chaudhari v State of Punjab where an appointment as a Cabinet Minister for the second time during the term of the same legislature was struck down by the Supreme Court. The other illustration is where the Court suggests (Para 75) it would interfere if a person “comes back again and again by taking, for illustration a day’s or a month’s gap…”. These are all situations of a fraud on the Constitution – DC Wadhwa’s case on ordinances read with Krishna Kumar Singh v State of Bihar is another illustration of a somewhat similar concept – where the Court does indeed retain the power to intervene. Thus, the Court’s decision to not intervene in RVP’s case is understood not as a case of holding the issue to be non-justiciable, but as holding that the facts while not meriting ‘approval’ of the Court did nonetheless not rise to the threshold of a fraud on the Constitution.
On that basis, I will now seek to understand further the Court’s reasoning in the facts of this particular case, to see why the Court thought that the balance in this case fell on the side of non-intervention; and the next post will consider what test can be applied by the Courts in such matters to determine when the balance will tip over to the side of judicial intervention as opposed to non-intervention.
III. The Reasoning of the Court
We have seen (in section I above) that the Bombay High Court relied on essentially three strands of reasoning: (a) the question of ‘defection’ was one for the Speaker and not the Court; (b) ‘silence’ in the Constitutional text, and (c) the history of the Constituent Assembly Debates.
Insofar as the first strand is concerned, the Court’s reasoning in paras 40 to 45 is comprehensive. The only quibble could perhaps be that there are situations in law where if no time limit for a certain action is prescribed, then the Court presumes that the action must nonetheless be taken within a “reasonable” time. Hence, one possibility – if the Speaker does not decide at all on defections – is to hold that the Speaker is bound to decide in a reasonable time. There will still be difficulties on what is reasonable time in such situations and also, a larger issue may be whether such implication of reasonable time can at all be imported given that the issue relates essentially to the proceedings in the Legislature: the Speaker is typically understood to be the master of what goes on in the legislature. To go into this aspect of time-lines for the Speaker would take us too far from the central issues on merits being considered in this note; and is therefore left to one side for now.
Insofar as the question of “constitutional silence” is concerned, the point the Court seems to be making is that in respect of who can and cannot become a minister, the Constitution expressly considers that aspect and provides that it is not necessary to be a minister on the date of appointment. If that is so, then it would not be permissible for the Court to add a further disqualification over and above what the text prescribes. In this context, the Court relied heavily on the decision of the Supreme Court in Manoj Narula v Union of India, which was considered to be a case raising a “somewhat comparable” [Para 56] issue. The issue there was – in the backdrop of severe criminalisation of politics – whether a person with criminal antecedents could be appointed as a Minister. The Supreme Court held that there could be no bar in law – although condemnable, there was no actionable illegality: and it was not the function of the Courts to add a disqualification where none exists.
With great respect, that issue is not really comparable. The point ultimately is that there is an express provision in the Constitution which provides that a minister must become a member of the Assembly within six months in order to continue. The question is whether one can be appointed as Minister when there is no possibility whatsoever of that condition being complied with. The comparison with Manoj Narula may not be entirely appropriate in view of this. It cannot be a “fraud on the Constitution” or against constitutional morality to appoint a criminal as a Minister when the Constitution indicates absolutely nothing in that regard. But in the case of RVP, the Constitution does indicate that there is to be ministerial responsibility to the legislature and there is indeed a requirement that within six months, a minister must become a member of the Assembly. In that scenario, is it or is it not a fraud on the Constitution to appoint someone who has no chance whatsoever of complying with the mandate? That question is, with great respect, not concluded by Manoj Narula.
Insofar as the Constituent Assembly Debates are concerned, the Court notes [Paras 59 and 60] that the “precise issue” was deliberated and negatived in the Constituent Assembly. But the issue which as deliberated and negatived in the Constituent Assembly was the issue of whether a person must be a member of the Assembly at the time of his induction to the Cabinet. With great respect, that is not the “precise issue” – the “precise issue” is whether a person who cannot possibly become a member of the legislative assembly for the rest of its term can be made a Cabinet Minister. There is an important distinction between “not being a member at the time of appointment” and “not being a member at the time of the appointment and not possibly being a member for the rest of the term of the Assembly”.
As the Court notes, the relevant provision here – Article 164(4) – was introduced in the Constituent Assembly as Draft Article 144(3). It is true that an amendment was proposed by Mohd. Tahir, which was negatived. This proposed amendment sought to provide that “A Minister shall, at the time of his being chosen as such, be a member of the Legislative Assembly…” It is respectfully submitted that neither the rationale stated by Mohd. Tahir for introducing this amendment nor the debate on Draft Article 144 provide any indication that the Constituent Assembly contemplated a situation of appointment of a minister who could not even theoretically become a member of the state Assembly at any point in the remaining term of the Assembly.
In fact, the High Court only noted the debate on the day (1 June 1949) the amendment proposed by Mohd. Tahir had been negatived. However, with great respect, some further light on this subject can be thrown by reference to the decision of the Supreme Court in BR Kapur v State of Tamil Nadu. In Kapur, the Court held that a person disqualified to be a member of the Assembly could not be appointed as Chief Minister. In the course of its discussions, the Supreme Court extracted a reply given in the Constituent Assembly in the course of the debate by Dr. Ambedkar (Volume 7 CAD) on 31 December 1948. The reason why Mohd. Tahir’s proposed amendment was opposed was this:
…with regard to the first point, namely, that no person shall be entitled to be appointed a Minister unless he is at the time of his appointment an elected member of the House. I think it forgets to take into consideration certain important matters which cannot be overlooked. First is this, – it is perfectly possible to imagine that a person who is otherwise competent to hold the post of a Minister has been defeated in a constituency for some reason which, although it may be perfectly good, might have annoyed the constituency and he might have incurred the displeasure of that particular constituency. It is not a reason why a member so competent as that should not be permitted to be appointed a member of the Cabinet on the assumption that he shall be able to get himself elected either from the same constituency or from another constituency. After all the privilege that is permitted is a privilege that extends only for six months. It does not confer a right to that individual to sit in the House without being elected at all…
In other words, the Constituent Assembly Debates indicate that one of the reasons for negativing the proposed amendment may have been the assumption that the minister “shall be able to get himself elected…”. For this assumption to apply, the possibility of being elected should be open. In the circumstances, it is submitted that the negativing of Mohd. Tahir’s amendment does not in itself lead to the conclusion that the Bombay High Court draws.
Indeed, it could be argued that the reason for the requirement of becoming elected within six months is to ensure that the flexibility to the Chief Minister comes coupled with ministerial responsibility to the Legislature. If a person is required to be elected as a member of the legislature in six months, then (a) the Minister remains responsible to the electorate, and (b) the Minister once elected can be questioned as to all actions on the floor of the house. But if a person is appointed as a minister without any possibility of standing for election or becoming elected as a member, then there is no ministerial responsibility to either the electorate or the legislature at all. It could be argued that appointing a person who has no intention whatsoever of facing the electorate or the legislature in six months is a fraud on the Constitution. So too, it can be argued that appointing someone who cannot possibly face elections in the period of six months is also a fraud on the Constitution. The answer turns on what exactly the term “fraud on the Constitution” is: and the particular Constituent Assembly Debates noted by the High Court do not provide any indication on this one way or the other.
The question then is: when does one say – in cases of such type – that there is indeed a fraud on the Constitution? That is the question to which we will turn to in the next post.
[The author is grateful to Gautam Bhatia for his comments on a draft version of this essay.]
(This is the second essay in a guest post series on the constitutional changes to Article 370, authored by Shrimoyee Ghosh, first published on Raiot, and reproduced here with permission. The first essay is available here.)
In this essay, we look at what the dismantling of Kashmir’s “special status” means in the realm of the international order: the laws of nations, wars and our shared humanity. The question of Kashmir’s international legal status has been an extremely contentious one, and one on which there has been very little serious academic engagement. In India, most legal experts and opinion makers have seemed content to echo, either by their words or their silences, the position of the Indian state that Kashmir is primarily a constitutional question, in other wordsan “internal matter”. But in the midst of the legal upheaval wrought by the neutering of Article 370, several previously verboten terms – ‘Occupation’, ‘Annexation’, ‘Colonialism’, ‘Right to Self Determination’, drawn from the realms of international law and politics, are now being used in the Indian public sphere to describe, debate, or decry the events of 5 August, 2019. In this essay, I will try to unpack some of these terms and address the question of the implications of the constitutional changes for Kashmir’s disputed legal status in International Law.
Questions about Kashmir’s international legal status inevitably lead to a cascade of further arguments over the nature and meaning of the Instrument of Accession, signed in October 1947 between Maharaja Hari Singh of Jammu and Kashmir and Governor General Mountbatten of the Dominion of India. Was this document a treaty, that is, an international agreement creating a binding legal obligation between two sovereigns? Did the Maharaja, as the sovereign head of a princely state formerly under British suzerainty have the legal capacity to enter into such an agreement at the moment of decolonization? What effect did the Instrument have on the legal status of Kashmir, and its sovereignty? What did the UN peace processes that began in 1948 mean, and what did they do to Kashmir’s legal status? What effect did the incorporation of the terms of the Instrument of Accession into the Indian Constitution have on Kashmir’s legal status in International Law? What about other wars fought over the region, and other treaties and agreements over the years? And finally, what has the latest move done to Kashmir’s status?
The imperium of International Law
Before we tackle this torrent, let us embark on a brief detour, taking in the imperial and colonial origins of International Law, and the implications they may have for our understanding of Kashmiri sovereignty in particular, and for claims to sovereignty in the post colonial world in general. Westphalian models of International Law imagine ‘sovereignty’, ‘territory’ and ‘population’ (or power, land, and people) as neatly coinciding attributes so as to form independent, well defined, bounded, and “natural” nation states, entitled to govern themselves and exert a monopoly of force within their boundaries without external interference. Anomalies or departures from this model were seen as terra nullius, empty, unoccupied lands without sovereigns, legally available like other things without owners—wild beasts, lost slaves and abandoned buildings—for conquest through seizure, by civilized and self governing (i.e. White, European) men and nations. In alignment with this legal tradition, and without any appearance of apparent irony, the boundaries of the post-colonies, through the long century of decolonization (beginning with the decolonization of Spanish America in the early nineteenth century and stretching into the liberation of Asia and Africa in the 1960s), were largely determined by the principle of Uti possidetis juris (you may keep what you posses by law) drawn from the medieval laws of conquest of territory in International Law. Under this principle, upon becoming self-governing territories, postcolonial successor states inherit the boundaries, dependencies, and often the governing frameworks of their colonial predecessors. It was felt by former colonisers and colonies alike that once the self-determination claims of the former colonial possessions were realized, and sovereign, independent nationhood attained, their boundaries solidified in perpetuity, and no further legitimate claims to self determination persisted in order to guard against the instability and contentions to sovereignty that may be wrought by colonial withdrawal and transfers of power. This explains the marked reluctance in International Law and international relations to apply the Right to Self-determination “within” the inherited boundaries of post-colonial nations, as instantiated by India’s reservations to Article 1 of the International Covenant on Civil and Political Rights, 1966 as well as the International Covenant on Economic Social and Cultural Rights, 1966 on the Right to Self-determination. In its reservation, India states that the Right to Self–determination applies “only to the peoples under foreign domination and that these words do not apply to sovereign independent States or to a section of a people or nation–which is the essence of national integrity.”
“Accession”
The princely states of British India, which covered 40% of the area of the Indian sub-continent, contained 23% of its population, and exercised vastly differentiated, unequal and splintered modes of sovereignty and statehood under the suzerainty of the British Indian government, posed a challenge to the Westphalian model before, during and after partition and the transfer of power. For instance, in the inter-war years when debates relating to the international trafficking of women and children raged in the League of Nations (in which British India was itself an anomaly as the only non-governing state admitted as member), princely states were treated at certain times as sovereign, ‘foreign’ territories with international borders and at others as part of British India, on par with the provinces. In the precipitate prelude to the Partition of British India and the making of India and Pakistan, the intractability of such contradictions became more apparent. The British exit strategy in 1947 attempted a clumsy rapprochement between the principle of Uti possidetis juris, or the inherited boundaries of successor states, with recognition of the sovereignty of the princely states.
While “accession” in International Law signifies the assent by a state to an already existing treaty, the Instrument of Accession was a sui generis (unlike any other) legal contract, devised and codified under the Government of India Act, 1935 to enable princely states to broadly continue the treaty relationship that formerly existed with the British Indian government, as constituent units within the framework of the new Federation of India, set up under the 1935 Act. The Instrument provided the rulers of the princely states a sphere of sovereign autonomy over the internal affairs of their kingdoms while the federal government retained certain legislative subjects specified in a separate schedule (such as foreign relations and military affairs).
The official British position under the Indian Independence Act, 1947 was that British suzerainty over the princely states would lapse with the transfer of power, and all sovereign powers would be restored to princely states, who then would be free to negotiate the terms of their future relations with either of the successor states—the dominions of India or Pakistan—or choose to remain independent. However, in his dealings with them Governor -General Lord Mountbatten cajoled state after state into signing “Instruments of Accession” as provided for under the Government of India Act, 1935, threatening them with ostracism from the international community, including being excluded from the British Commonwealth, should they chose to remain independent. This was in keeping with the ruling establishment of Indian National Congress, including future Indian Prime Minister Jawharalal Nehru, who adopted the classic terra nullius position of seeing princely states as anomalous, feudal, autocracies without popular sovereignty that were carved out of the territory of the greater Indian nation into which they should be re-incorporated. Going a step further, Nehru declared at a meeting of the All India States Peoples’ Conference in April 1947 that any princely state that refused to join the Indian Constituent Assembly would be treated as a “hostile state”. British, Indian, and Pakistani state actions, including diplomatic communications and policy documents at the time of decolonization showed an acceptance of the belief that the Instruments of Accession were binding sovereign agreements, and thus would form opinio juris (opinions of law), an element of customary International Law that binds nations.
Jammu and Kashmir, the largest of the Princely Kingdoms with a Hindu ruler and a majority Muslim population, which had its own Constitution, a partially-elected legislature, an independent judiciary, and laws that provided its subjects quasi-citizenship rights to domicile, livelihood and property, remained a holdout against the pressures to conform and accede, with the Maharaja Hari Singh and his Prime Minister Ram Chandra Kak favouring further negotiations before making a choice. The Maharaja entered into a Standstill Agreement with the Dominion of Pakistan in August 1947, whereby Pakistan as the successor state would continue with certain contractual obligations, and administer the continued operation of postal, telegraph and railroad services in Kashmir.
However, in late October 1947, faced with an armed rebellion and insurrection in the Western quarter of his kingdom in Poonch, presentiments of genocidal violence against Muslims in the South, stirrings of mutiny in the far North, and an invasion by Pashtun tribesmen from the North-West that had almost reached the city gates, the Maharaja fled from his summer capital Srinagar, and hurriedly signed an Instrument of Accession with India, as a pre-condition to India airlifting troops and coming to the defense of his kingdom. The date of this signing is however disputed, with several historians contending that the Instrument was in fact signed after the landing of Indian troops, on 27 October 1947, or never signed at all, thus making it an entirely illegitimate invasion, with no consent of the reigning sovereign. Pakistan questions the capacity of the Maharaja to enter into such an agreement on behalf of his people having signed a prior Standstill Agreement with Pakistan, and whilst two-fifth of his kingdom (Azad Kashmir and the Northern Areas of Gilgit and Baltistan) was no longer under his effective control.
The presence of Indian boots on Kashmiri ground, whether immediately prior to or immediately after the signing of the Instrument of Accession, even if for the protection of the Maharaja’s land and people, also lays open questions of the threat of use of force, and the voluntariness of the Maharaja’s conditional assent to the Instrument of Accession. The Maharaja’s letter of 26 October 1947, viewing the agreement as a condition precedent to receiving military assistance to save his kingdom, adds heft to this argument. Art. 52 of the Vienna Convention on the Law of Treaties (1969) states that a treaty is void ‘if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations’ and, thus, rejects the validity of even a treaty-based annexation, though of course given the (Westphalian) state-centric model of International Law, the ‘anomalous’ ‘quasi sovereignty’ of Jammu and Kashmir, as a not quite (and perhaps never to be) sovereign state, makes the Vienna Convention at best a guiding rather than a binding axiom applicable to the situation.
“Annexation”
This view that there is no valid legally binding document that governs the India-Kashmir relationship, which is shored up by considerable historical evidence, would mean that the Indian control over Jammu and Kashmir was in effect an illegitimate seizure, or an annexation—a unilateral act of assertion of sovereignty by forcible territorial occupation or conquest (whether or not it is met with actual resistance), accompanied by the permanent administrative takeover of a state, or disputed territory, by another. Annexations are seen as acts of aggression violating the UN Charter’s rules on the legitimate use of force, and thus are an outlawed act of war, prohibited under International Law. The unilateral actions of the Indian state in changing the status of Jammu and Kashmir from a federal unit to directly-administered Union Territories, destroying the last residues of its territorial integrity and legal autonomy, arguably only further consolidates and perpetuates the initial illegal act of aggression.
India has however always maintained that the Instrument of Accession is a valid and binding legal instrument, in the nature of a sovereign contract (in other words a treaty) entered into between India and the Maharaja, in his capacity as the absolute ruler of (the entire territory) of the former princely state of Jammu and Kashmir. This position was not only articulated by India in the UN debates about the Kashmir dispute, but also by the Indian Supreme Court in the Premnath Kaul case, which involved a constitutional challenge to Kashmiri land reforms, where the Court held that even after the lapse of British paramountcy on the passing of the Independence Act, 1947, “the Maharaja continued to be the same absolute monarch of the state […] and in the eyes of international law he might conceivably have claimed the status of a sovereign and independent State.”
What did the Instrument of Accession say?
If we accept that the Maharaja was sovereign, and validly entered into a legally binding agreement, we must first wade through the deep waters of the Instrument of Accession, and its accompanying documents, which together are considered a part of the instrument under the laws governing international contracts and agreements. Following this, we must venture further and deeper into the processes through which the United Nations and the Indian and Jammu and Kashmiri Constitutions affected the legal position the Instrument sets out. We then arrive at the clearing of what this might all mean for Kashmir’s legal status. The Instrument of Accession sets out the terms upon which the Maharaja accepted or acceded to the jurisdiction of the Dominion of India. Like in Instruments signed by several of the other larger princely states with ‘internal autonomy’, the ruler consented to give up some of his lawmaking powers—in the domains of foreign affairs, communications and defence to the Dominion of India—while preserving his sovereign and territorial authority. The eminent domain over all land in the State vested in the Maharaja exclusively, and land could only be acquired by India if transferred by him. Under Clause 5, the agreement states that its terms could only be modified by consent of the ruler of the state. Further, it was quite categorical on the continuance of the rights of the Maharaja as a sovereign ruler, and of the constitutional autonomy of Jammu and Kashmir itself, except in the specified spheres listed in the schedule to the Instrument. Clause 7 of the Instrument states, “Nothing in this Instrument shall be deemed to be a commitment in any way as to acceptance of any future Constitution of India or to fetter my discretion to enter into arrangement with the Governments of India under any such future Constitution.” Clause 8 reiterates, “Nothing in this Instrument affects the continuance of my sovereignty in and over this State, or save as provided by or under this Instrument the exercise of any powers, authority and rights now enjoyed by me as Ruler of this State or the validity of any law at present in force in this State.” In his letter accompanying the Instrument dated 26 October 1947, the Maharaja wrote that Indian military aid was sought in return for the Accession. He also stated that that it was his intention to immediately set up Interim Government. On 30 October 1947 he appointed Sheikh Abdullah, the leader of the National Conference, to head the government as Emergency Administrator alongside his own representative, the then Prime Minister Meher Chand Mahajan.
Governor General Mountbatten in his letter dated 27 October 1947, accompanying his formal acceptance of the Accession, acknowledged the Right to Self-determination, and popular sovereignty of the Kashmiri peoples. He wrote: “[M]y Government has decided to accept the accession of Kashmir State to the Dominion of India. Consistently with their policy that, in the case of any State where the issue of accession has been the subject of dispute, the question of accession should be decided in accordance with the wishes of the people of the State. It is my Government’s wish that as soon as law and order have been restored in Kashmir and its soil cleared of the invader, the question of the question of State’s accession should be settled by a reference to the people.”
The Instrument and its associated documents therefore do not lay out a final and complete arrangement in perpetuity, but are rather in the nature of a provisional and conditional agreement, providing for the continuance of the Maharaja’s sovereign title aided by an emergency administration, and contingent upon the provision of Indian military aid in the immediate future as well as the occurrence of a plebiscite once “law and order had been restored.”
War, and (not quite) Peace
In the immediate aftermath of the signing of the Instrument, war was declared between India and Pakistan. The Indian Cabinet referred the Kashmir dispute to the UN Security Council on 1 January 1948 in order to reach a peaceful settlement, with Pakistan also raising its own issues two weeks later. The UN Security Council through Resolution 39 established the United Nations Commission on India and Pakistan (UNCIP) on 20 January 1948 to investigate the claims and counter-claims about the illegal use of force and occupation of territory made by both Pakistan and India. The Security Council adopted Resolution 47 on 21 April 1948 asking that Indian troops and Pakistani tribesmen withdraw from Jammu and Kashmiri territory, that an interim local authority be established to represent the major Kashmiri political groups from both sides of the cease-fire line, and that a five-member UNCIP delegation go to Kashmir to help restore peace and conduct a plebiscite.
A ceasefire was finally negotiated through the UNCIP and a UN mediated Ceasefire Line demarcated and agreed to by both parties in July 1949 through the Karachi Agreement, to be monitored by a peacekeeping force called the UN Military Observers Group in India and Pakistan (UNMOGIP). However, owing to intractable disagreements between India and Pakistan, the truce, demilitarization, and plebiscite stages of the contemplated peace process never took place, despite 17 UN resolutions, and various plans, missions and proposals attempting to bring about a negotiated settlement between 1948 and 1971. Pakistan maintained that any demilitarization on its part needed to be simultaneously reciprocated by India, owing to the fear of Indian aggression in taking over the vacated territory in Azad Kashmir given India’s previous annexation of the princely states of Junagadh and Hyderabad. While Pakistan initially withdrew some its tribesmen and nationals, the reciprocal withdrawal of regular troops became mired in controversy when India refused to match the Pakistani offer for withdrawal of an initial tranche of soldiers instead stating that it would only withdraw its air force. India continued to insist the Pakistan be treated as an aggressor, while the UN tended to treat both states with parity, prioritizing Kashmiri self-determination and imposing conditionalities on both. On March 5, 1948 the Maharaja dissolved the increasingly fractious emergency administration (which had been headed by an Emergency Administrator and a Prime Minister) and Sheikh Abdullah was appointed as Prime Minister, the single head of the Interim Government. Controversy about this also soon arose in the UN as India adopted the position that the Interim Government must be recognized as the sole local authority for the entire territory after demilitarization, including the Northern and Western parts (Gilgit and Baltistan and Poonch) of the region, which had declared their “liberation” and established their own provisional government allied to Pakistan, and over which the Maharaja had lost territorial control prior to the outbreak of war.
To this day India maintains that the UN peace process was scuttled by Pakistan’s refusal to comply with UN resolutions asking it to withdraw its troops first as a pre-condition to plebiscite. However, numerous contemporaneous accounts, including by Owen Dixon, the UN appointed mediator after the failure of the UNCIP, blame the failure of the negotiations on India’s obduracy against allowing a plebiscite under a neutral authority and international supervision. Dixon, who was also scathing about Sheikh Abdullah’s “police state,” wrote in in his report at the end of failed talks in Delhi July 1950, “None of the suggestions [about the several options for partition and/or plebiscite that he had proposed] commended themselves to the Prime Minster of India […] In the end I became convinced that India’s agreement was never to be obtained to demilitarization in any such form or to provisions governing the period of plebiscite of any such character, as would, in my opinion, permit of the plebiscite being conducted in conditions sufficiently against intimidation and other forms of influence and abuse by which the freedom and fairness of the plebiscite might be imperiled.”
Constitution making
Even as the UN negotiations were ongoing through 1949 and 1950, the Constituent Assembly was engaged in drafting the Constitution of India. By mid 1949, it had become increasingly clear that the UN was unprepared to accept India’s position on the finality of the accession, or the legitimacy of the Maharaja-appointed National Conference government as the sole political authority over the entire territory of the erstwhile state of Jammu and Kashmir. Though referred to as a “popular government” Abdullah’s administration was appointed in the immediate aftermath of the signing of Instrument of Accession, as an interim, emergency wartime measure, and at the insistence of Prime Minister Nehru. Sheikh Abdullah’s National Conference which had been at the forefront of the anti–colonial and anti-monarchial movement since 1946, had boycotted the previous two elections to the Jammu and Kashmir State Assembly. Abdullah himself had only been recently released from prison in September 1947, again at the insistence of Nehru and Gandhi.
On 16 June 1949, four days before the Maharaja announced his abdication, and five months before the Constitutional drafting process came to an end, a four member delegation from Kashmir, headed by the Prime Minister of the Interim Government, Sheikh Abdullah, joined the Indian Constitution drafting process. N. Gopalaswami Ayyangar, member of the drafting committee, and later Minister of State for Kashmir Affairs, had proposed their induction three weeks earlier, stating on the floor of the Constituent Assembly that it would be “unfair to the Government and the People of the State of Jammu & Kashmir to deny them the opportunity of participating in the discussions” on the new Constitution of India. The non-representative character of Prime Minister Abdullah’s (unelected) delegation was opposed by some members, mainly on communal grounds, but it was argued by the Indian government that the partly-elected legislative assembly and the pre-war cabinet had fallen into disarray through the winter of accession, war and partition. (What was left unsaid: many opposition figures and prominent voices opposed to Accession, including former Prime Minister Ram Chandra Kak, had been exiled or externed by the emergency administration, using wartime legislation such as the Enemy Agents Ordinance). On 20 June of 1949, after two months of stormy closed door meetings and agonised bargaining with Indian Home Minister Vallabhbhai Patel, the Maharaja made a sudden declaration that he was “temporarily” vacating his throne in favour of his eighteen-year-old son, the Prince Regent Karan Singh, entrusting to him legislative, judicial and executive powers. The Maharaja and his wife Tara Devi were never permitted to return to Kashmir and the Maharaja died in Bombay in 1961. Shortly after his abdication and exile, in October of 1949, Article 306-A, which later took final form as Article 370, was debated in the Constituent Assembly and drafted into the Constitution of India.
The Article violated the terms of the Instrument of Accession, which had explicitly stated that the Instrument would not be deemed to be a commitment to the acceptance of a future constitution of India and any other future agreement must be entered into at the Ruler’s sole and unfettered discretion, conditional upon a reference to the popular will once the war-time emergency had passed. Article 370 incorporated the “Indian State of Jammu and Kashmir” as one of the constituent states in the territory of Indian Union, thus over riding the (by then) deposed Maharaja’s sovereign right and title to his lands. It allowed for the negation of the legislative autonomy and sovereignty of Jammu and Kashmir State and its ruler, beyond that which was contemplated by the instrument through the medium of Presidential Orders passed by the Union executive. On 25 November 1949, the day before the Indian Constitution was adopted, the Prince Regent Yuvraj Karan Singh issued a proclamation declaring that the Constitution of India shall govern the constitutional relationship between the State and the Union of India, and will be enforced in the State by him, his heirs and successors. He also declared that the provisions of the Indian Constitution would supersede and abrogate all other constitutional provisions inconsistent with it, which were then in force in the State (under the old Dogra era Jammu and Kashmir Constitution Act, 1939).
In October 1951, India convened a Constituent Assembly to formulate a Constitution for Jammu & Kashmir—in a thoroughly compromised, violent and widely boycotted electoral process in which National Conference candidates stood with the slogan “One Leader, One Party, One Programme” and were elected unopposed in all seventy five seats. In response, the Security Council passed Resolution 91 of 1951 affirming that the convening of the Constituent Assembly and any action it might attempt to take to determine the “future shape or affiliation of the entire state or part thereof” of Kashmir “would not constitute a disposition of the State in accordance with the principle of a free and impartial plebiscite conducted by the UN.” The Constituent Assembly was formally dissolved by resolution in January 1957 after framing a separate Constitution for Jammu and Kashmir, in defiance of the Security Council Resolutions, declaring that the whole of the former princely State “is and shall be integral part of the Union of India”. Even the Indian Constitution arguably only refers to the territory under Indian control, by referring to the “Indian State of Jammu and Kashmir” (the only state whose description is prefixed by its national allegiance). The Jammu and Kashmir Constitution on the other hand explicitly asserts India’s territorial and political claim to the entire territory of the erstwhile kingdom stating that “[U]ntil the area of the State under the occupation of Pakistan ceases to so occupied and the people residing in that area elect their representatives twenty-five seats in the Legislative Assembly shall remain vacant and shall not be taken into account for reckoning the total member-ship of the Assembly”. UN Security Council in Resolution 122 of 1957 reiterated the action taken by the Constituent Assembly would not satisfy its earlier resolutions calling for a plebiscite.
But isn’t Kashmir a bilateral dispute?
While the UN continued to pass resolutions urging the peaceful settlement of Kashmir, over the next decade, including after the seventeen day Second Kashmir war in 1965, the resolution of the Kashmir dispute saw little real progress as the UN became embroiled in Cold War-era veto politics. The next major development occurred at the end of the Bangladesh War, with the signing of the Shimla Agreement in 1972. The Agreement converted the cease-fire line in Jammu and Kashmir (as of the cessation of hostilities in December 1971) into the Line of Control (LOC) between India and Pakistan and it was agreed that “That the two countries are resolved to settle their differences by peaceful means through bilateral negotiations or by any other peaceful means mutually agreed upon between them. Pending the final settlement of any of the problems between the two countries, neither side shall unilaterally alter the situation.”
Since the signing of the Shimla Agreement, India vociferously maintains that the Kashmir dispute is exclusively a bilateral issue, and dismisses all international debate or interventions, including by the United Nations, as being legally ruled out by the terms of this agreement. India also claims that the demarcation of the Line of Control has overruled the earlier Karachi Agreement (1949) on the UN-mandated Ceasefire Line and therefore prevents access to the UN Military Observers Group from the LoC on the Indian side, despite the continuously occurring ceasefire violations that have claimed hundreds of Kashmiri lives from both sides of the bloodied dividing line. However, no treaty or agreement can overrule the application of all international laws. No issue is purely domestic—the laws of international custom create obligations on nations to abide by a peremptory and universal honour code. For instance no bilateral or multilateral agreement, or domestic law, court or constitution can permit or legalise colonialism, apartheid, slavery, torture, genocide or acts of unilateral aggression or unlawful use of force. The text of the Shimla Agreement itself acknowledges this when it states “That the principles and purposes of the Charter of the United Nations shall govern the relations between the two countries,” and further that “in accordance with the Charter of the United Nations, they will refrain from the threat or use of force against the territorial integrity or political independence of each other.” The purposes of the UN Charter as laid out in Article 1 includes “[T]o develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace.”
“Occupation”
We have taken this rather long historical journey to uncover the terrain of the relationship between India and Kashmir, as set out in the Instrument of Accession and as modified by subsequent events and documents. It is clear that at the time of signing the Instrument of Accession, the Maharaja viewed it as a temporary and provisional arrangement entered into with India in order to protect his kingdom preserve and his own power. Through it the Maharaja asserted his sovereignty and control over his separate and independent territory to the exclusion of any other authority. India was granted law-making powers in three spheres, until the final determination of the political and cartographic shape of the region through a reference to the will of the people. The unilateral change in this treaty, effected in the first instance by deposing and exiling the Maharaja and installing his barely-adult son as the Regent, will be very familiar to any student of British colonial policy towards “native” Indian states through the long nineteenth century. The Prince Regent was never officially recognized as the Ruler of the State, as sovereign powers were only “temporarily” delegated to him by his father prior to his unofficial but eventually permanent abdication and exile. The subsequent involvement of the non-representative Jammu and Kashmir delegation in the drafting process of the Indian Constitution, further violated the terms and conditionalities of Instrument of accession, and granted India sovereign rights over Jammu and Kashmir. The Prince Regent’s declaration on 25 November 1949, that the Constitution of India would henceforth govern the India-Kashmir relationship formally incorporated Jammu and Kashmir into the Indian polity. Finally, the Jammu and Kashmir Constitution, 1957 declared a unilateral territorial integration of the region. Taken as a whole these maneouvres granted India effective political, legal and territorial control over Jammu and Kashmir, in violation of the International Law recognition of its disputed status.
International Humanitarian laws define Occupation as the effective control of a foreign territory by hostile armed forces. In my view, when India breached the Instrument of Accession and effected the coercive albeit “temporary” integration of Kashmir into its constitutional framework superseding the holding of a plebiscite, its military forces lost the right to remain on Kashmiri soil and became hostile to the sovereign will and the right of the people of Jammu and Kashmir to determining their own political future. In effect and in that moment India legally became an occupying power. In this regard it is important to emphasize that pinpointing the exact temporal beginning of an Occupation is not necessary under the Laws of Occupation, as an occupation can begin through a series of events and hostilities that effectuate a gradual transition from invasion to effective administrative control. This is exemplified by the difficulties that experts have experienced in identifying the precise date at which the occupation of Iraq began in 2003.
Under International Law, an occupation is a question of fact. International Humanitarian law (IHL), the body of laws which deals with the humane regulation of wars, armed conflicts and occupations, is described as jus in bello (laws in war) as opposed to jus ad bellum (laws of war). IHL, of which the four Geneva Conventions form the core, is not concerned with the justness, lawfulness or causes of belligerency—who started it, or why—but only that wars be waged as humanely as possible, with the least possible suffering and devastation to civilian lives, land, and infrastructure. It specifically protects the most vulnerable—prisoners, the ship wrecked, the war wounded, the sick, and the civilian population of an occupied territory, amongst others—and lays down the principles of proportionality, military necessity and distinction (between combatants and non combatants) to help soldiers and their generals decipher what is and what is not a legitimate target.
This being the case, under the laws of occupation it does not matter if the occupying power denies the nature of its relationship to the territories it administers and controls, or sees them as an “integral part.” The existence of an occupation does not depend on a declaration by the occupying power that it is in occupation or any recognition of the occupation. The intention of the occupying power also does not matter, that is, whether it aims to exploit the occupied territory or liberate the population by its actions does not have any effect on the classification of the situation. Article 47 of the Fourth Geneva Convention expressly states that persons in the occupied area shall not be deprived of the benefits of the convention by any agreement between the authorities of the occupied territory and the occupying authority. Nor does it matter whether the occupying power meets with any armed resistance. Occupation differs from annexation in that it is a temporary sovereign takeover of a territory, where the inherent sovereignty of the occupied territories is not erased but is held in suspension until the occupation ends and the area is liberated or otherwise returned to its sovereign status. The only legal test to determine if a territory is occupied is that the prevailing situation meets the defined factual criteria set out under the laws of occupation. It bears repeating that the IHL regime is not concerned with the moral rightness or wrongness of the acts of invading and establishing temporary political authority over a foreign territory; what it is concerned with is the conduct of the occupying power thereafter to best protect the sovereignty, the population and the continued territorial existence of the occupied territory. It is a breach of these rules of conduct that renders an occupation unlawful, rather than the existence of a set of facts (however reprehensible) that meet the requirements of an occupation.
The definition and obligations under the law of occupation are found in two main international humanitarian instruments: The 1907 Hague Regulations ‘Respecting the Laws and Customs of War on Land’ and the Fourth Geneva Convention, 1949 ‘Relative to the Protection of Civilian Persons in Time of War’. India is not a party to the Fourth Hague Convention, 1907 to which the Hague Regulations are annexed. However, the International Court of Justice (ICJ) in its advisory opinion, Concerning the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, held that the rules laid down in the Hague Regulations are part of international custom, which means that they apply to all states irrespective of whether they are party to a specific treaty or not. Article 42 of the 1907 Hague Regulations states that a “[T]erritory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.” The definition therefore requires three things to exist (i) a territory, (ii) a hostile army, (iii) and actual establishment and exercise of authority. Let us disentangle each of these strands to discover if the factual situation in Jammu and Kashmir can help determine whether it is an occupation.
Territory
While the Hague Regulations do not mention that the occupied territory must necessarily be a state or a part of a state, Common Article 2 of the four Geneva Conventions of 1949 (which India acceded to in 1950) states that the Geneva Conventions “shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.” Israel and other occupying powers have argued that this means that the article, and therefore the Geneva Conventions, apply only when the occupied territory belongs to a High Contracting Party, i.e. another state that has signed on to the Conventions. Under such an interpretation the Indian control over Jammu and Kashmir would not be an occupation, since prior to the Accession the independent kingdom of Jammu and Kashmir was neither itself a High Contracting Party nor did its territory belong to one. However, the International Court of Justice has categorically ruled that the Geneva Conventions will apply even when the status of the territory is contested. The Eritrea-Ethiopia Claims Commission award, another International Law ruling, also supports the view that the law of occupation must be applied to contested territory. The Commission stated, referring to the Fourth Geneva Convention and the Hague Regulations 1907, that “neither text suggests that only territory the title to which is clear and uncontested can be occupied territory.” The International Red Cross whose commentaries and interpretations of IHL are considered authoritative, states that “Occupation exists as soon as a territory is under the effective control of a State that is not the recognized sovereign of the territory. It does not matter who the territory was taken from. The occupied population may not be denied the protection afforded to it because of disputes between belligerents regarding sovereignty over the territory concerned.” It goes on to explain why this is necessarily the case: “Any other interpretation would lead to a result that is unreasonable as the applicability of the law of occupation would depend on the invading State’s subjective considerations. It would suffice for that State to invoke the controversial international status of the territory in question in order to deny that the areas in question are occupied territory and thus evade its responsibilities under the law of occupation.” This is precisely what India seeks to do when it simultaneously invokes the Maharaja’s right as a sovereign to sign the Instrument of Accession, but denies Jammu and Kashmir’s disputed legal status as recognized in International Law.
Hostile army
The second requirement of occupations, that of belligerency, or outright enmity and war or invasion between the occupying power and the occupied territory, has undergone a broadening in light of the changing character and technologies of twenty–first century wars and the foreign administration of territories. Scholars and lawyers have argued for the applicability of the law of occupations to a range of situations which do not fit into the classical definition of an enemy territory being physically occupied for a temporary period through war and invasion. Situations where effective control was exercised through proxies (for instance in parts of former Yugoslavia in the 1990s), through multinational agencies (the United Nations administration set up post war Iraq in 2003) in post-conflict circumstances for “humanitarian” reasons, or which are so prolonged as to be almost permanent, are now seen as falling within the ambit of occupation law. Several states, for instance Nazi Germany in the case of Quisling’s Norway administration, or Vichy France, or Japan in the case of Manchukuo, have historically invoked or even celebrated the consent of the sovereign and the local administrative surrogate to deny the applicability of occupation law, as India does through its reliance upon the finality of the Maharaja’s signing of the Instrument of Accession and the constitutional creation of the Jammu and Kashmir state administration. However, as the International Court of Justice ruled in the case of the Namibia, after the UN General Assembly renounced the South African mandate over it, consent may be withdrawn at any time, transforming a continuing foreign military presence into an occupation. Even if the coercive abdication and exile of the Maharaja of Jammu and Kashmir did not vitiate his consent to Indian military presence and to the establishment of the Sheikh Abdullah-led emergency administration, the continuing failure to carry out the promised plebiscite, the outbreak of an armed resistance movement against Indian rule in 1989, and the ever escalating deployment of Indian armed forceson counter–insurgency duties against the civilian population, will undoubtedly weigh against India in any objective factual evaluation of the nature of its relationship with Jammu and Kashmir.
Legal scholar Eyal Benvenesti notes that there are “ample reasons” to apply the law of occupation to situations not encompassed by the “foreignness” or “enmity” of rival sovereign of states, arguing instead that the modern standard is one based on relationships and conflicts of interest between the administrations and the populations subject to their rule. Thus he argues any “exceptional regime” where one territory is subject to the control of another, no matter how “friendly” or “consensual,” creates a potential hostile environment and a vulnerable population, because it involves a departure from the universal human right of self-determination. Such a situation therefore warrants international scrutiny and is subject to the basic constraints of occupation law.
Effective Control
The idea of effective control or actual exercise of authority is at the heart of occupation law. The International Criminal Tribunal of Yugoslavia provided a useful checklist of the factual circumstances to determine the existence of ‘authority’ in the case of Naletilić & Martinović. According to the Court, (i) The occupying power must be in a position to substitute its own authority for that of the occupied authorities, which must have been rendered incapable of functioning publicly; (ii) The enemy’s forces have surrendered, been defeated or withdrawn. In this respect, battle areas may not be considered as occupied territory. However, sporadic local resistance, even successful, does not affect the reality of occupation; (iii) The occupying power has a sufficient force present, or the capacity to send troops within a reasonable time to make the authority of the occupying power felt; (iv) A temporary administration has been established over the territory; (v) The occupying power has issued and enforced directions to the civilian population.
The Jammu and Kashmir Prince Regent Karan Singh’s royal declaration on 25 November 1949 that the Indian Constitution would henceforth govern the relationship between Jammu and Kashmir and India, was a public substitution of the authority of the lawful sovereign of Jammu and Kashmir with that of the Dominion of India. From the terms of the Instrument of Accession, which handed over legislative power over military affairs to India; to Article 370, that expanded the reach of the Indian state in breach of the terms of Instrument of Accession; to the subsequent tranche of Constitutional Orders that virtually overturned the original relationship enshrined in Article 370, and the Jammu and Kashmir Constitution, 1957 that accepted India’s territorial and political authority; it is clear that the India-Kashmir relationship is governed by a legal regime where effective control over Jammu and Kashmir—military, political and administrative—vests in New Delhi. All of the other elements, except (ii) (since the Maharaja’s forces were eventually subsumed within that of the Indian Army), have been quite clearly satisfied in the Jammu and Kashmir case.
Consequences
As I have suggested above all occupations are not unlawful. The purpose of occupation law is to ensure that the temporary authority of the occupying power is exercised in a way so as to protect the interests and rights of the ousted authority, and the people who live in the occupied territories. The law of occupation thus recognises that the occupying power is the temporary administrator or “trustee” of a territory and establishes a series of positive obligations towards the occupied population, its resources, and its institutions to ensure their survival for whenever sovereignty is eventually returned to them. The duties of the occupying power are spelled out primarily in the 1907 Hague Regulations (Articles 42-56) and the Fourth Geneva Convention (Articles 27-34 and 47-78)
Besides the usual prohibitions under the Geneva Conventions against torture, collective punishment, extra–judicial killings and other war crimes, these rules state that the occupying power must respect, as far as possible, the existing laws and institutions of the occupied territory. It is however authorized to make changes where necessary to ensure its own security and to uphold the obligation to restore and maintain public order and safety and to ensure orderly government. The occupying power cannot annex the occupied territory or change its political status; instead it must respect and maintain the political, legal and other institutions which exist in that territory for the entirety of the occupation. Through the years, India has been in violation of occupation law with regard to Kashmir in many respects. To name just a few: it has instituted fundamental legal and political changes in the region’s governing structures, it has acquired vast swathes of land through militarization and permanently altered such lands and other natural resources, and it is alleged to have carried out widespread and systemic human rights abuses, including torture enforced disappearances, extra–judicial killings, collective punishment, and sexual violence which are absolutely prohibited under international law and which amount to war crimes when they occur in the context of an armed conflict.
What do the new changes mean?
A wise Kashmiri journalist once quipped to me that when it is before the UN and international forums, India claims Kashmir is a “bilateral dispute”, when it is speaking to Pakistan it says Kashmir is an “internal matter,” and when it talks to Indians it claims Kashmir is not a dispute at all. The growing “internationalisation” of Kashmir, in the wake of the humanitarian and human rights crisis in the region since 5 August 2019, has been noted with shrill alarm from all quarters of the Indian political and media establishment. In the Public Interest Litigation (PIL) hearing on the constitutionality of the abrogation of Article 370 both judge and petitioner agreed that it was the internationalisation of Kashmir that was the real problem, rather than the suspension of civil liberties. But as this history demonstrates Jammu and Kashmir was and continues to be a matter of international law—a challenge to the laws of war, of nations, and our shared humanity. The permanent war and illegal ceasefire violations across the Line of Control that enacts an unending and unresolved Partition of the region, is not separable from the histories of coercive state formation and constitutionalism that deny the Jammu and Kashmiri people the right to self determination and/ or unification, and the brutal ‘internal’ repression of this sentiment over the last seven decades.
The territorial dissolution of Jammu and Kashmir state and the dismantling of the legal scaffolding of the India–Kashmir relationship is the attempted defacement of a stubborn legal trace of Kashmir’s refusal to remain domesticated. By its very existence and in its tenuous provisionality, Article 370 archived other histories, and foretold of other political possibilities, even as it foreclosed them. The changes in Jammu and Kashmir’s constitutional status and the annihilation of its territorial integrity through the J&K Reorganisation Act of 2019, have transformed the occupation, characterized by the de jure (in law) “temporary” suspension of Kashmiri sovereignty, into a permanent and irreversible annexation of its territory in law and fact. The legal fiction of special status is now legal history. While the nuts and bolts of everyday legalities may take time to work out, in the palaces of justice and the corridors of power, where the law lives out its sovereign lives, where peace and war are brokered and broken, there can be no mistaking the immanent violence of this unilateral change.
(This is the first essay in a guest post series on the constitutional changes to Article 370, authored by Shrimoyee Ghosh, first published on Raiot, and reproduced here with permission.)
The dismantling of Jammu and Kashmir’s special status has been heralded as a kind of constitutional surgical strike—the clearing of an unruly and hopelessly overgrown legal tangle, in one brilliant and blinding swoop. This, we are told is our other, long delayed tryst with destiny—that of one nation united at last under one constitution and one flag. But is it really? To arrive at an answer, we must circumnavigate through the first two of our simple questions, whose answers I’m afraid are anything but. First, what was this tangled forest of Article 370 and Article 35A? And second, what exactly has been done to them?
The Tangled Forest
What is Article 370?
Article 370 is one of the provisions under Part XXI of the Indian Constitution that deals with Temporary, Transitional and Special Provisions. The Articles in this Part deal with different constitutional rights and protections for citizens of various states in the Indian Union (including, for example, Gujarat, Maharashtra, Andhra Pradesh, Sikkim and Nagaland), and about the adaptation and continuance of pre-constitutional laws and institutions such as the judiciary in post-independence India. Article 370 has been repealed almost in its entirety by the Constitutional Orders of 5 August 2019 (C.O. 272) and 6 August 2019 (C.O 273), and replaced with text that effectively dismantles the limited protection it afforded to Jammu and Kashmir in self governance, territorial integrity and collective rights to land and livelihood.
The original Article 370 incorporated into the Indian Constitution a modified form of the terms of the Instrument of Accession signed between Maharaja Hari Singh, ruler of the independent kingdom of Jammu and Kashmir, and the Dominion of India in October 1947, at the commencement of the First Kashmir War. While the Instrument itself is identical to those signed by the rulers of the 140 other princely states that acceded to India, Jammu and Kashmir was unique in being the only princely state that attempted to negotiate the terms of its accession and the protection of its sovereignty. It did so by participation in the Indian Constitutional drafting process, and thereafter through an agreement, ratified by Indian parliament, between the Indian state and representatives of Jammu and Kashmiri state called the Delhi Agreement of 1952. While the Maharaja had signed an Instrument of Accession temporarily giving over certain of his law making powers to India, unlike the rulers of the other princely states he had not signed (and never did sign) an Instrument of Merger, territorially integrating his kingdom with India. In future essays, we will return to some of the spectacular political events that accompanied this moment — massacre, insurrection, more massacres, war, truce, international diplomacy, abdication, commandeered elections, conspiracy and coup-d’etat (to name only a few) —which form the mise –en-scene of a legal history bookended by the signing of the Instrument of Accession and the promulgation of the Jammu and Kashmir Constitution (1948-1957). But for now let us turn back to Article 370.
From the Constituent Assembly Debates about the inclusion of Kashmiri representatives in the Indian Constituent Assembly and the drafting of Article 370, as well as the marginal notes to it, it becomes clear that the article was presented as a transitional measure to manage the relationship between India and Jammu and Kashmir until a final determination of the latter’s legal status. At the time of its drafting in October 1949, the United Nations was still actively intervening in the Kashmir dispute, which had first been taken to the international body by India in January 1948, in the wake of the First Kashmir War. N. Gopalswami Ayyangar, a member of the Constitutional Drafting Committee and later Minister for Kashmir Affairs, said before the Constituent Assembly: “[The Government of India has] committed themselves to the position that an opportunity would be given to the people of the State [of Jammu and Kashmir] to decide for themselves whether they will remain with the Republic or wish to go out of it. They are also committed to ascertaining this will of the people by means of a plebiscite provided that peaceful and normal conditions are restored and the impartiality of the plebiscite could be guaranteed. We have also agreed that the will of the people, through the instrument of a constituent assembly, will determine the constitution of the State as well as the sphere of Union jurisdiction over the State.”
he contradiction in this statement, that should the people of the State indeed “wish to go out” of the Indian Republic in a plebiscite, the future Constitution of Jammu and Kashmir, its drafting process, and the “sphere of Union jurisdiction” over the state (if any) would be no business of at all of the Indian republic, was not pointed out. This is unsurprising given the widespread belief that the “entanglement” (in Ayyanger’s words) with the United Nations was a mistake, and the express desire of a large number of members of the Indian Constituent Assembly, including its President, Dr. Rajendra Prasad that the Accession be treated as “unconditional and complete.”
The final wording of Article 370 as incorporated in the 1950 Indian Constitution makes no mention of the UN processes, or Jammu and Kashmir’s divided and disputed status, where two–fifth of the territory was held by Pakistan and hence neither in India’s nor in the Maharaja’s sovereign control. Instead, it only refers to a Constituent Assembly for Jammu and Kashmir, which would be empowered to decide on the terms of its relationship to India, including the ratification of all the temporary presidential orders passed under the Article, and the future revocation of the Article itself. (In the next essay In the World I will return to the question of the legal status of the Instrument of Accession and the Jammu and Kashmir Constituent Assembly.)
Without acknowledging the dispute, Article 370 set out that Jammu and Kashmir is a constituent unit of the territory of the Indian Union of states (Under Article 1, and the First Schedule of the Indian Constitution). In accordance with the terms of the Instrument of Accession, nothing else in the Indian Constitution would apply to Jammu and Kashmir except Article 370 itself, which was understood as the constitutional incorporation of the Instrument of Accession. The insertion of this provision in the constitutional text if only to exclude its own operation, nonetheless drew a legal instrument signed by the two sovereign powers—India and Jammu and Kashmir, inexorably into the domesticating force field of Indian constitutionalism. In doing so it founded the normative framing that continues to dominate understandings of the legal position of Kashmir in the Indian public sphere today across all political lines.
Article 370 also laid down the procedures through which (i) Indian law making powers (other than on the three specified subjects of foreign affairs, defence, and communications) and (ii) Indian constitutional provisions could temporarily be applied to Jammu and Kashmir, as well as (iii) how the Article itself could partially or fully cease to operate. The procedure for doing these three things was by Presidential Declarations or Orders, that is executive decrees issued by the President, giving him/her and therefore the Union executive, extraordinary albeit temporary law making and constituent (constitution making) powers over a state. This was in violation of core Indian constitutional values of the separation of powers and federalism.
The Article stated that:
Article 370 further stated that all such temporary expansions of the Indian parliament’s law making powers, and the application of Indian constitutional provisions to Jammu and Kashmir passed with concurrence of the State Government before the coming into being of the Jammu and Kashmir Constituent Assembly (i.e. presidential orders pertaining to subjects not specified in the Instrument of Accession), would require the ratification of the Jammu and Kashmir Constituent Assembly, once it commenced its operations. Article 370 was silent as to what would happen once the Jammu and Kashmir Constituent Assembly was dissolved, since it presumably assumed that the terms of the future relationship (including the possible abrogation of the Article) would be fully laid out in the future Constitution of Jammu and Kashmir, and no further such transitional, extra-ordinary executive power would need to be exercised by the Indian executive.
The ‘temporary’ nature of the Article was upheld by the Indian Supreme Court in its ruling in the Premnath Kaul case, which involved a challenge to the far reaching land reforms brought about by the interim administration led by Sheikh Abdullah, and enacted by proclamation of the Yuvraj Karan Singh in October 1950. The petitioner a landed zamindar who had lost his estates, contended amongst other arguments, that the royal edict promulgating the land reform law was invalid, as Article 370 of the Indian Constitution had extinguished the Maharaja’s legal status as a sovereign with powers to make laws in Jammu and Kashmir. The Court held that the final determination of the relationship of Jammu and Kashmir and India would rest with the Jammu and Kashmir Constituent Assembly, and until such time, the Maharaja (and through him the Yuvraj) continued to be a sovereign monarch with plenary powers under the old Jammu and Kashmir Constitution of 1939. Subsequent judgments of the Supreme Court, passed after the dissolution of the Constituent Assembly however depart from this view, holding that since the Jammu and Kashmiri Constituent Assembly had dissolved itself in 1957, without passing any recommendation as to the modification or abrogation of Article 370, and no other body is contemplated in the text of the Article as having this constituent power, the Article has become a permanent feature of the India-Kashmir constitutional scheme. This view has legalised the continuous use of constitutional orders to dramatically alter and undermine the nature of the sovereign constitutional relationship, rendering Jammu and Kashmir far less autonomous than other states when it comes to key areas of Centre-State relations such as the promulgation of emergencies, or the Union’s powers of legislation.
What is Article 35A?
Article 35A was a special provision applicable only to Jammu and Kashmir, inserted into the Indian Constitution using the procedure for Constitutional Amendment under Article 370, via a Presidential order passed in 1954 (The Constitution (Application to Jammu and Kashmir) Order, 1954). Besides Article 35A, this far reaching constitutional order, which is often called the Basic Order, extended a large portion of the Indian Constitution, including the citizenship provisions, the jurisdiction of the Indian Supreme Court, and the Indian Constitution’s Fundamental Rights Chapter (Part III) to Jammu and Kashmir (albeit with some significant modifications). This order was absolutely crucial to establishing the legal regime between Jammu and Kashmir and India. While it was putatively enacted to give legal form to the Delhi Agreement of 1952, it far exceeded those terms. It was passed within six months of Sheikh Abullah’s 1953 arrest, and his removal from the position of the first Prime Minister of Kashmir. All subsequent presidential orders (until the 2019 orders) have been crafted as amendments to this Basic Order, possibly to preemptively save them from a constitutional challenge, since they were passed after the Jammu and Kashmir Constituent Assembly ceased to exist in 1956, a situation that the original text of Article 370 did not contemplate. Nor did the Article lay out any procedure for the amendment of a presidential order. This Basic Order and all its subsequent amendments have been revoked in its entirety by the 2019 Constitutional Order (C.O. 272) and therefore the protection of laws relating to Permanent Residents under Article 35A too stands entirely repealed.
Article 35A was the constitutional recognition of a form of proto-citizenship rights for ‘Permanent Residents’ of Jammu and Kashmir. It stated that laws on certain subjects made by the Jammu and Kashmir State Legislature could not be challenged under Indian constitutional provisions, on the grounds that they abridged the rights (for example the right to equality, or the right to move freely) of other Indian citizens. The Jammu and Kashmir State legislature was therefore exclusively empowered to pass laws and regulations in relation to certain subjects without judicial review by the Indian Supreme Court. These matters were: (i) the definition of ‘Permanent Residents’, (ii) rights to acquire immoveable property in Jammu and Kashmir, (iii) rights to settle in Jammu and Kashmir, (iv) rights to employment in the State Government, and (v) right to scholarships and government aid for education.
The concept of Permanent Resident, incorporated in Article 35A and the Jammu and Kashmir Constitution, 1957, draws from a long history of State Subject rules and notifications enacted by the Dogra Maharajas, passed in the first three decades of the 20th Century. This was a response to agitations by his subjects for citizenship rights and protection of their lands, educational opportunities and livelihoods against foreigners from the Punjab and elsewhere. The Jammu and Kashmir Constitution, 1957 defines a Permanent Resident of the state as an Indian Citizen who was a state subject on May 14, 1954, or who has been a resident of the state for 10 years, and has “lawfully acquired immovable property in the state.” The qualification of Indian citizenship was necessary since the state subject law otherwise applied to all residents of Jammu and Kashmir including those in Azad Kashmir, Gilgit and Baltistan. The Constitution has several other provisions pertaining to Permanent Residents, including sections, which preserve pre-constitutional service conditions and posts, and disallow non Permanent Residents from becoming members of the state legislature, or being appointed to government employment.
The state legislature and executive has over the years passed many laws, bye-laws and government orders, protecting Permanent Residents’ exclusive rights to buy, sell and own property, preventing alienation of lands to non Permanent Residents and in matters of state employment, healthcare, higher education, state compensation schemes, voting and standing for elections. The Jammu and Kashmir state legislature also has the ability to alter the definition of Permanent Residents or modify the privileges applicable to them through a law passed with two-thirds majority. Neither Article 35A, nor the Jammu and Kashmir Constitution, 1957 contain any reference to the gender of Permanent Residents, or legal disabilities of women Permanent Residents who marry non Permanent Residents, though this has been widely cited as a reason for the removal of Article 35A, and was also one of the grounds of its challenge in the Supreme Court. I will discuss the ‘equality’ justifications put forward by supporters of the amendments including gender and caste discrimination in the last essay in this series. For now, suffice to say that the constitutional protection accorded to these laws under Article 35A has been removed with the abrogation.
The Lightning Strike
Since the in-built procedural protections with regard to Article 370 made it fairly robust and difficult to directly amend or repeal, the Indian government devised a circuitous, three–step route to achieve its ends. Constitutional experts have suggested that the Parliament should have adopted the ordinary amendment procedure laid down in Article 368 of the Indian Constitution, instead of this “back door” method. However, this view does not take into account the fact that the Basic Order of 1954 provided that Constitutional Amendments to the Indian Constitution would not apply to Jammu and Kashmir, unless extended by Presidential Order. It would not have been legally sound to have directly repealed Article 370 altogether, as it is the basis through which Jammu and Kashmir is incorporated into Indian Union in the first place. Abrogating it completely, without instituting a new basis of the relationship through the substituted wording would mean dissolving the relationship itself. The new language of the Article, dismantles the protections and procedures of the Article, and enacts the application of the entirety of Indian Constitution to Jammu and Kashmir.
Step 1
The Union Government used Article 370(1)(d) relating to Presidential orders for Constitutional Application/Amendment to enact C.O. 272, on 5 August 2019, applying provisions of the Indian Constitution to Jammu and Kashmir. Since Jammu and Kashmir was under President’s Rule and there was no popularly elected government or Council of Ministers in place, the concurrence of the State Government required under Article 370 was read to mean the concurrence of the Governor alone. This had been done several times in the past as well to apply constitutional provisions to Jammu and Kashmir, most recently in March 2019 to promulgate an ordinance relating to reservations in government jobs for border residents. The first C.O. does three things:
(b) The words “Sadr i Riyasat” (The indirectly elected Constitutional Head under the Jammu and Kashmir Constitution, also recognized in the Indian Constitution, will mean the Governor), and that references to Government will mean Governor acting on the advice of his Council of Ministers. These changes had already been amended through Constitutional Orders in 1965, but since the Basic Order and all its amendments had been repealed, the language had gone back to the original text
(c) Most crucially that in Article 370(3) relating to the procedure for cessation of operation of Article 370, “Constituent Assembly” will mean the “State Legislative Assembly.”
Step 2
The Union Government then used the new meaning of “Constituent Assembly” in the procedure under Article 370(3) for abrogation of Article 370 to pass a Statutory Parliamentary Resolution recommending that the President make a public notification replacing the existing Article 370, with text that stated that the entirety of the Indian Constitution would apply to Jammu and Kashmir, notwithstanding any “law, document, judgment, ordinance, order, bye- law, rule, regulation, notification, custom or usage […] or any other instrument, treaty or agreement,” thus effectively eviscerating the Article. In his speech to the Rajya Sabha, Home Minister Amit Shah explained that since President’s Rule under Article 356 (as modified and applied to Jammu and Kashmir by Constitutional Orders) was in place, all powers of the State Legislative Assembly was now vested in the Indian Parliament. In these circumstances and since the Constituent Assembly, which was the only body empowered to abrogate or amend Article 370 had been replaced by the State Legislature (through C.O. 272), the Union Parliament could pass such a resolution.
Along with this Statutory Resolution, the Home Minister also tabled Jammu and Kashmir (Reorganisation) Bill, 2019 making Jammu & Kashmir a Union territory with a Legislative Assembly and Ladakh a Union Territory without a Legislative Assembly, effective from 31 October 2019. This law would have earlier run afoul of the Basic Order, which disbarred the operation of Article 3 of the Indian Constitution, which allows the Union Government to modify the boundaries of any state, in Jammu and Kashmir, thus preserving its territorial integrity.
The Home Minister also tabled the Jammu & Kashmir Reservation (2nd Amendment) Bill, 2019 amending the Jammu & Kashmir Reservation Act 2004 to allow for reservations for people from border areas, based on an earlier ordinance promulgated by the Governor of Jammu and Kashmir in March 2019. Both bills were unanimously passed in both houses.
Step 3
The Union Government then passed another Constitutional Order (C.O. 273) dated 6 August 2019, which was a public notification formally effectuating the changes set out in the Parliamentary Resolution, ceasing the operation of the original Article 370 and the Basic Order. It decreed that notwithstanding all other laws, treaties and instruments to the contrary, Jammu and Kashmir would be henceforth governed by the provisions of the Indian Constitution. And with that, the deed was done.
What Remains of the Day
The full implications of this up-ending of the India-Kashmir constitutional regime will only be revealed as events unfold, and hitherto uncharted legal waters are navigated. For instance, though the change has rendered the existing laws and the Constitution of Jammu and Kashmir, 1957 vulnerable to repeal and judicial challenge on the grounds of violation of the Indian Constitution, until they are explicitly revoked, substituted by the legislature or struck down by courts, they continue to remain in force. Two flags still flew over the State Secretariat until recently, as Caravan magazine reported, and as the Jammu and Kashmir High Court upheld in 2015, a judgment that continues to be the law in force. Though the existence of the two flags caused much alarm, and the eventual lowering of the Jammu and Kashmir state flag was crowed over on television, this is without legal mandate. The Jammu and Kashmir Constitution, 1957 which instituted the separate flag (Section 144), while it may have been rendered meaningless by the constitutional legislative changes is yet to be formally struck down or invalidated in part or whole by a court of law or act of parliament. The parliament or court’s power to exercise such a constituent power, on the basis of the new Article 370, when the Constituent Assembly of Jammu and Kashmir has dissolved itself, is a matter of grave constitutional doubt, and open to further challenge.
This however does not mean nothing has changed. Under Schedule Five of the Jammu and Kashmir (Reorganisation) Act, 106 Central laws will be extended to the two new Union Territories. Out of the total 330 State laws and Governor’s Acts, 164 will continue to operate, 166 will be repealed and seven (mainly land related legislations) will be amended. The Jammu and Kashmir Constitution, 1957 has not been repealed and continues to be valid law. Police and Public order will also now become a Union subject, under the new dispensation. The Jammu and Kashmir Armed Forces Special Powers Act, 1990 and the Public Safety Act, 1978 are both included in the schedule of laws that will continue to operate. In addition, the National Security Act 1980 will also now apply to Jammu and Kashmir, perhaps adding a further weapon to the state’s arsenal of preventive detention legislations. Bars on transfer of land to non permanent residents, under the Jammu and Kashmir Transfer of Property Act, 1920 and the Jammu and Kashmir Land Alienation Act, 1938, have been removed. Ceiling on land transfers of state lands to non-permanent residents under the Jammu and Kashmir Land Grants Act, 1960 and private lands under the Jammu and Kashmir Big Landed Estates Abolition Act, 2007 have been dismantled. The Jammu and Kashmir Land Acquisition Act, 1935 has been repealed and replaced by the central land acquisition legislation. While the J&K Industrial Policy of 2004, already allowed for leaseholds on industrial property for 90 years, the changes will allow for outright ownership and free hold of lands by private and public entities. The central Enemy Properties Act, 1968 will also now apply allowing for large-scale alienation of lands vested in the Jammu and Kashmir Custodian of Properties, lands which belong to state subjects displaced by the incomplete and unending partition of Kashmir, extinguishing further their rights to return. Elections to local bodies, already an important site of “people centric” policies of militarized governance and development that lie at the heart of India’s counter-insurgency war, are likely to become further instrumentalised. All of this is likely to usher in profound changes in land ownership and use, demography and in the nature, command structures and intensity of policing and surveillance.
It is true, as is frequently asserted, that the constitutional guarantee of legislative autonomy under Article 370 had been almost entirely hollowed out over the years by Constitutional Orders. The Jammu and Kashmiri Constitution, 1957 that in the Indian state’s view embodies the popular will of the Kashmiri people, obliterating the need for a plebiscite, is a document without its own charter of rights, something that renowned constitutional scholar A. G Noorani calls, “an utter nullity” and non est (those are some of the kinder terms). Drafted by a Constituent Assembly whose elections were rigged, whose validity was disputed by the United Nations Security Council, whose leader Sheikh Abdullah was deposed and imprisoned mid-way through the drafting process, and whose safeguards against incursions by Indian judicial, legislative and executive authorities, have been systematically disemboweled through Presidential orders, Constitutional Amendments and judgments, frequently passed in the wake of political coups, it gives little that is unique to the Jammu and Kashmiri people by way of rights, with one important exception: the rights and protections it affords Permanent Residents. The revolutionary ideals of Sheikh Abdullah’s Naya Kashmir manifesto including gender equality, right to work, and the right to education are relegated to the category of unenforceable Directive Principles of State policy.
Instead, the Jammu and Kashmir Constitution articulates through its Preamble and Section 3 the position that Jammu and Kashmir is and shall be an integral part of India. It defines this territory as “all the territories which on the fifteenth day of August 1947, were under the sovereignty or suzerainty of the Ruler of the State” thus retrospectively getting around the problem of the fact that the Maharaja was not really in control of the entirety of his kingdom when he signed the Instrument of Accession in October 1947, and enacting an integration in perpetuity, envisaged neither by the terms of Accession, nor even the Indian Constitution. Under various Jammu and Kashmir Extension of Laws Acts, scores of central laws and the jurisdiction of central agencies like the Central Bureau of Investigation (CBI) and National Investigative Agency (NIA) have been extended to Jammu and Kashmir. Besides this, the enactment of near identical laws on almost every subject, ranging from the Right to Information, to reservations to the prevention of child sexual abuse by the State Legislature had already flattened the differences between the legal terrain of Jammu and Kashmir and other states, except when they carved out an extraordinary jurisdiction for the application of special laws allowing for use of force, and impunity by police and armed forces.
Despite this hollowing and flattening, Article 370 and Article 35A have nonetheless provided shade for a lush undergrowth of laws, bye-laws, judgments and executive orders relating to higher education, administrative services, electricity laws, agricultural property, evacuee property, land revenue, tenancy, government schemes, compassionate appointments, compensation for militancy related deaths, etc. Overturning each of these through legislative or judicial action and replacing them will be no easy task, and is likely to take years, if indeed it ever happens, until which time Jammu and Kashmir will continue to be governed through the Jammu and Kashmiri constitutional provisions and laws that are, on the face of it, unconstitutional under the new regime. Over the years the state judiciary has played a crucial role in normalising impunity for human rights abuses by Indian state forces in Kashmir, yet it has been quite a fierce protector of the state’s constitution and rights of permanent residency, holding for instance, that Indian Constitutional amendments unilaterally modifying Jammu and Kashmir’s constitutional structures are illegitimate, and observing that the Jammu and Kashmir Constitution enacts a form of sovereignty with respect to property rights of Permanent Residents constituted through its own constitutional history. The change is likely to produce some unique and unresolvable legal conundrums, inconsistencies and conflicts of laws especially as the Jammu and Kashmir Constitution’s definition of its territorial boundaries is now bifurcated over two Union Territories— one with a legislature, and one without, both directly governed by the Centre, and yet with their own (unified) Constitution. Indeed the political inexpediency of entirely dismantling the land rights regime and domiciliary protections of employment, in other words the very rights guaranteed under the Jammu and Kashmir Constitution’s definition of Permanent residents and Article 35 A, are becoming increasingly obvious even to the government. An unnamed senior Indian official recently stated that the elected government of Jammu and Kashmir would decide on future land policy, including classifications and land tenures. Already Nirmal Singh of the Jammu and Kashmir BJP has said that the party will propose domiciliary protections for rights to employment. In short, while the constitutional changes are cataclysmic and seem irreversible, in the domain of the everyday, the legal conquest of Jammu and Kashmir is neither as complete nor unquestionable as celebrating members of the ladoo-distributing public would like to believe.
(This is a guest post by Nivedhitha K.).
The 103rd Constitutional amendment enables 10% reservation for the ‘economically weak’ of the forward caste. Prior to the amendment, the Indian Constitution only provided reservation for the ‘backward class’, where the determination of backward class was based on ‘caste’. Therefore, until recently, reservation has always been ‘caste-based’. The 103rd amendment revamps the structure of the equality code by enabling reservation solely based on ‘economic capacity’.
A Constitutional amendment can be struck down only if the basic structure of the Indian Constitution- as propounded in the case of Kesavananda Bharati v. State of Kerala – is ‘damaged’. In this essay, I will analyse a series of cases that deal with the basic structure doctrine, and develop a working test to challenge Constitutional amendments. The 103rd Constitutional amendment will then be tested upon the evolved working test.
Concepts, Facets, and Conceptions
An analysis of a series of cases involving the basic structure doctrine, elucidates that the basic structure operates at three levels of abstraction: concept, facet, and conception. Consider the 99th Constitutional amendment, which substituted the NJAC in place of the collegium for the appointment of judges, and was challenged in the NJAC case. The five-judge bench struck down the amendment on the ground that ‘primacy of the judiciary’ in appointment of judges is an integral part of ‘independence of the judiciary’, which – in turn – is an integral part of the basic feature of democracy. Therefore a question of whether the ‘independence of the judiciary’ is damaged, was answered with reference to ‘primacy of the judiciary’. A similar three-level abstraction was made in the case of PUCL as well. Though the case did not involve the challenge of a Constitutional amendment, the observations in the case would be useful for our analysis. In the PUCL case, provisions of the Election Rules, 1961 that allowed a person who exercised NOTA to be identified, wre challenged on the ground of violation of secrecy of ballots. The bench while holding that the NOTA button is to be set up in the EVM, observed that secrecy of ballots was ‘fundamental’ to a free and fair election, which in turn is a basic feature of the Indian Constitution.
Therefore, three levels of abstraction could be identified through the PUCL case and the NJAC case. In the NJAC case, the abstraction is in the form of democracy –> independence of the judiciary –> primacy of the judiciary in judicial appointments. In the PUCL case, the abstraction is in the form of democracy –> free and fair elections –> secrecy of ballot. All the three levels of abstraction are a part of the basic structure. Through the remaining part of the essay, the three levels of abstraction will be termed as concept (‘democracy’), facet (‘independence of the judiciary’ and ‘free and fair elections’), and conception (‘primacy of the judiciary’ and ‘secrecy of ballots’).
A concept is a basic principle that governs the Constitution such as democracy, rule of law, secularism, federalism, and equality. They are broad principles that are usually identified with reference to preamble of the Indian Constitution. A facet is a particular aspect of the concept, which is independent of the structure of the Constitution. It is a means to the end of the ‘concept’, without which the concept would be nugatory. On the other hand, a conception is a subset of the facet, and a specific understanding of the facet that is Constitution-specific. A conception could exist in different forms, of which, a few might form a part of the basic structure and few might not. For instance, in the case of RC Poudyal, an amendment was challenged on the ground of violation of the one person- one vote conception. The court observed that alteration of the one person- one vote conception would not damage the basic feature of democracy since different conceptions of democracy could exist. However, certain conceptions might be fundamental to the concept within the constitutional framework, an alteration of which will damage the concept (which is a basic feature). This position was elucidated in the PUCL case, wherein it was observed that the conception of ‘secrecy of votes’ is fundamental in a ‘constituency-based election’, and not in a ‘proportional representation system’. In Poudyal, the conception was not a basic feature, while in PUCL the conception was a basic feature. Therefore, conceptions may or may not be fundamental to the concept. If it is the former- it is a basic feature, else it is not.
Crucially, how are facets and conceptions that are basic features identified? Though all basic features are identified through judicial recognition, the degree of intervention (for identification) differs. Facets can be identified through (what I define as) the “manifestation and interpretation” approach, and the conceptions by the “interpretation approach” alone. According to the manifestation approach, the facet is ‘per se’ a clear understanding of the concept. For instance, the identification of free and fair election as an integral part of democracy, did not involve a lot of jurisprudential debate. However, certain facets are either in their nascent stage of jurisprudential development, or are subject to conflicting views. For instance, the jurisprudence surrounding equality were undergoing evolution, until MN Thomas, where both formal and substantive equality were recognised as facets of equality. In such cases, it would not be appropriate to identify facets (that are basic features) through the manifestation approach; instead the interpretation approach is to be used. Through the interpretation approach, a two prong test is to be undertaken. Firstly, judicial pronouncements should have held that they are facets of the concept, and secondly, those facets should have been recognised as basic features, expressly or through necessary implication.
On the other hand, a conception is identified solely through judicial interpretation, because these are Constitution specific. In order to determine as to whether a conception is a basic feature, an in-depth analysis is to be undertaken. The judiciary would decide with regard to the structure of the Constitution, provisions and the silences of the Constitution. Let me explain this through an example. Federalism is a basic feature of the Constitution; the autonomy – in principle – of the constituent units is a facet of federalism (‘per se’ aspect of federalism). Conceptions of federalism are numerous. One conception is that the residuary power is to belong to the centre, while another conception is that it shall belong to the state; the centre could hold consultations with the constituent units (state), before implementing an international obligation, or might not hold consultations. Each of these conceptions are Constitution-specific. In India, the conception of the centre holding the residuary power is a part of the concept of Indian federalism, which might not be for the US. Similarly, consultations with the state on state subjects, that the international obligation covers, maybe a conception that is integral in Australia, but not in India. Therefore, unlike identification of facets, a Constitution-specific approach will have to be undertaken to identify the conceptions. As stated above, a conception may or may not be a basic feature. A conception (after identification through a Constitution-specific approach) will be a basic feature, only if it is integral to the functioning of the facet. In order to identify as to whether it is integral to a facet, judicial pronouncements and structure of the Constitution shall be used as an aid. So, if conceptions violate the facet, they will be unconstitutional. If they are not violative of the facet, they might or might not be basic features- depending on how integral they are to the facet.
Judicial pronouncements to identify a Basic Feature
In order to identify conceptions and facets that are basic features through judicial pronouncements, it is first to be established that judicial pronouncements could be used to identify basic features. Judicial pronouncements have been used to identify basic features, and to test the violation of basic structure in the past. Y V Chandrachud J, in the election case, addressed the question of whether excluding the election of the prime minister and the speaker from the ambit of judicial review would violate the basic feature of equality. To conclude that it violated the basic structure, he tested the provision on the intelligible differentia classification test propounded in Anwar Ali Sarkar. This approach was followed in I. R Coelho as well. Y K Sabharwal CJ while delivering the decision observed, “The Constitution is a living document. The constitutional provisions have to be construed having regard to the march of time and the development of law. It is, therefore, necessary that while construing the doctrine of basic structure due regard be had to various decisions which led to expansion and development of law” (paragraph 42). He analysed the transformation undergone by Article 21 from AK Gopalan to Maneka Gandhi, and held that broad interpretations must be used to identify any abridgment of the basic structure.
Finally, in the NJAC case, a submission was made that a basic feature could be identified only through plain reading of the provisions of the Constitution. Khehar CJ disagreed with the submission and observed that the basic feature is to be identified by reading original plain provisions and the interpretation placed on it by the courts. He observed, “In the above view of matter, it would neither be legal nor just to persist on an understanding of the provision(s) concerned merely on the plain reading thereof as was suggested on behalf of the respondents. Even on a plain reading of Article 141, we are obligated to read the provisions of the Constitution in the manner they have been interpreted by this court” (paragraph 299). The second judges and the third judges’ case had read ‘consultation’ with the judiciary in appointment of judges to mean ‘concurrence’. This conception – i.e., that judicial independence required judicial primacy in appointments – that was established through interpretation was regarded as a part of the basic structure in the NJAC judgment.
Facets of Equality are Basic Features
Having established that judicial interpretations could be used to determine whether a facet or a conception is a basic feature, I will now establish that egalitarian equality and formal equality are facets of equality, and are basic features of the Constitution. Before addressing this question, a preliminary question of whether fundamental rights can be a part of the basic structure is to be answered. The general perception is that Kesavananda Bharati held fundamental rights to not be a part of the basic structure. However, in IR Coelho, Khanna J’s judgment in Kesavananda Bharati was construed to hold that fundamental rights are a part of the basic structure, and it was the right to property that was held not to be a basic feature. Hence the majority in the Kesavananda Bharati case – as interpreted in Coelho – did regard fundamental rights as a part of the basic structure.
Equality has been recognised as a basic feature in quite a few cases. In Ashoka Kumar Thakur, Balakrishnan CJ observed, ‘the principle of equality cannot be completely taken away so as to leave the citizens in this country in a state of lawlessness’ (paragraph 119). Similarly, in the case of M. Nagaraj, it was held that ‘equality is the essence of democracy and, accordingly a basic structure of the Constitution’ (Paragraph 27). Likewise, a portion of Article 329A was struck down for its violation of the basic feature of equality in the election case by Y V Chandrachud J. Therefore, equality (which is a concept) is a part of the basic structure.
I now aim at establishing that substantive equality and formal equality are facets of the concept of equality, and are basic features of the Constitution. A facet, as explained above, is a means to the end of concept, which is Constitution independent. In the case of MN Thomas, substantive equality and formal equality were held to be facets of equality, after a decade of jurisprudential arguments surrounding the subject. But the facets were not ‘clear manifestations’ of equality, which is clear from the fact that it was evolved after a dozen cases had debated on the issue. Therefore, in order to establish that the facets are basic features, the interpretation approach is to be used. The two-pronged test is applied. Firstly, judicial interpretation must have regarded equality and substantive equality as facets of equality. This test is fulfilled, with reference to MN Thomas. The second test is that the facets should have been held to be a basic feature, expressly or through necessary implication. The essence test, and the judgment in Nagaraj and Indra Sawhney will be used to identify that facets of substantive and formal equality are a part of the basic structure by necessary implication.
The ‘essence test’ was propounded in IR Coelho and accepted in NJAC. It was observed in IR Coelho, “It cannot be held that the essence of the principle behind Article 14 is not a part of the basic structure. In fact, the essence or principle of the right or nature of violation is more important than the equality in the abstract or formal sense” (Paragraph 109). The essence of equality as provided in the Constitution is its ability to provide for both substantive and formal equality. In Nagaraj, a question arose as to whether providing for consequential seniority in reservations pertaining promotions would violate the basic structure. The amendment was tested on whether Art 16(1) was violated. The bench held that it cannot be said that the insertion of the concept of ‘consequential seniority’ abrogated the structure of Art 16(1). Further, in the case of Indra Sawhney (2000), it was held that if the creamy layer is not excluded from the ambit of reservation, then it would amount to treating unequal’s equally, violating Art 14 and 16(1) – the basic features of the Constitution (paragraph 65 and 27). Though it was not expressly observed that Art 16(1) which provides for substantive equality is a basic feature of the Constitution, the same could be construed through necessary implication because the amendments were tested on Art 16(1) for violation of the basic structure doctrine. Formal equality has been expressly recognised as a basic feature in Indra Sawhney as it was held that non exclusion of the creamy layer would amount to treating unequals equally(which is a principle guiding formal equality).
Therefore, through the above observations, it is proved that substantive and formal equality are facets of equality, and are basic features of the Constitution.
The Alteration Test
It has been argued by Gautam Bhatia, that only if the entire equality code is abrogated would there be a violation of the basic structure doctrine, and the parliament is qualified to prescribe different forms of equality. Bhatia’s argument is based on the Nagaraj judgment, wherein the constitutional validity of Art 16(4A) and Art 16(4 B) was in question. In Nagaraj, the revamp of the equality code was upheld because it was regarded that none of the conceptions that were basic features were altered. It was observed that the substitution of consequential seniority in place of the catch up rule was not violative of the basic feature of equality, because the catch up rule was not a constitutional requirement, but was judicially evolved through ‘service jurisprudence’. However, other judicially evolved conceptions such as the 50% ceiling limit, the concept of creamy layer, compelling reason of backwardness, inadequacy of representation, and overall administrative efficiency were regarded as constitutional requirements. Therefore, Nagaraj was an attestation that alteration of a conception that is a basic feature would violate the basic structure of the constitution- it was just that none of the conceptions that were altered in Nagaraj were regarded as basic features.
It may also be argued that Balakrishnan CJ in Ashok Kumar Thakur observed, “the principle of equality cannot be completely taken away so as to leave the citizens in this country in a state of lawlessness. But the facets of the principle of equality could always be altered especially to carry out the directive principles of state policies” (Paragraph 119). This objection would not hold good for two reasons. Firstly, in the instant case, the facet of equality- as in this case substantive equality- itself is a basic feature. Secondly, the observation was made on the premise that ‘abrogation’ of the basic structure and not ‘alteration’ is the test to determine the violation of the basic structure.
However, Madan Lokur J, in the NJAC judgment, correctly clarified that the Kesavananda Bharati case did not propound the abrogation test, but rather propounded the ‘alteration test’. He observed, “the Bench that decided Kesavananda Bharati were of the opinion that it is enough to declare a constitutional amendment as violating the basic structure if it alters the basic structure. Undoubtedly, some of the learned judges, have used very strong words in the course of their judgment, etc. But when it came to stating what is the law actually laid down, the majority decided that “Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution” (Paragraph 797). The reading down of the NJAC amendment was primarily because of the substitution of alteration test in place of the abrogation test.
Consolidating my arguments above, basic structure exists in three levels of abstraction – concept, facet, and conception. A facet is either identified through the manifestation approach or the interpretation approach. If the facet cannot be identified manifestly, because the jurisprudence surrounding it is subject to differing views, then the interpretation approach is to be used. Through the interpretation approach, it is not sufficient if it is proved that they are facets of the concept, but it must also be proved that the facets are basic features. Using this approach, it was established that both formal and substantive equality are facets of equality, and are basic features. I then explained the possibility (and necessity) of identifying basic features through principles established by judicial interpretations; this argument helped in establishing that the facet of substantive equality is a basic feature. The golden triangle of Articles’ 14, 19 and 21, which invokes the test of arbitrariness, has also received the stamp of a basic feature in the cases of M. Nagaraj and Coelho. In Nagaraj, it was held that the test of ‘reasonableness’ is a basic feature. Therefore, the 103rd constitutional amendment would now be tested for violation of the basic feature of ‘reasonableness’ and ‘formal and substantive equality’.
The test of arbitrariness and Formal Equality
Three impacts arise on the inclusion of Articles’ 15(6) and 16(6), which strike at arbitrariness and substantive equality. Firstly, through the amendment, ‘economically weaker section’ of the forward castes and the members of the backward class are treated at par with each other by providing them with reservation. A person belonging to the backward class under Article 15(4) is disadvantaged on three parameters- social, economic and educational. On the other hand, the class introduced under Article 15(6) would only be disadvantaged economically.
Secondly, explanation to Article 15(6) states that the ‘economically weaker section’ shall be notified by virtue of ‘family income’. If a threshold limit is prescribed to determine the family income, then a person who falls below the poverty line and a person who falls below the prescribed threshold but above the poverty line would be treated alike.
Thirdly, Article 16(6) provides for reservation in jobs for the economically weaker section without any requirement of proving the ‘adequacy’ of representation, while on the other hand Article 16(4) states that a person belonging to backward class, to be eligible for reservation, has to prove that his class is not adequately represented. Therefore, for a person to be eligible for reservation under Art 16(4), he will have an extra obstacle to surpass, unlike the reservation provided under Art 16(6).
Any positive steps that are taken to provide for egalitarian equality must be guided by the principle underlying formal equality- which is to treat equals equally, and unequal’s unequally. Through the first two effects, two unequally placed classes are treated equally, violating the basic structure of formal equality. All the three effects would fail the test of arbitrariness that runs through the golden triangle as well.
Violation of Substantive Equality
My next argument against the constitutionality of the 103rd amendment is that it violates the basic feature of substantive equality. Let us now go back to the three levels of abstraction of basic structure- concept, facet and conception. Art 16(4) and 15(4), which permit reservation in educational institutions and jobs on the basis of caste are conceptions of substantive equality since it is one of the forms of achieving substantive equality under the Indian Constitution. Without going into the question of whether the conception of ‘reservation solely on the basis of caste’ is a basic feature, we will analyse as to whether reservation solely based on economic criteria (which is a conception of equality (and substantive equality)), is a basic feature. Recall the first section, wherein I explained that certain conceptions are basic features and a few are not. To identify if they are basic features, judicial pronouncements shall be taken into consideration. Reference is made to the nine-judge bench decision in Indra Sawhney for this purpose. The bench made two observations on using economic determinants for the purpose of reservation. Firstly, economic criteria cannot be solely used to determine ‘backward classes’ under Art 16(4). Secondly, reservation solely based on economic criteria will not be permitted under Art 16(1). The first observation would not be of support to our case since the observation was made with regard to a specific class- the ‘backward class’- which cannot be imported to a different class that has been created (the economically weak class). However, the second observation would support our case. The observation surely restricts executive and legislative actions to provide reservation purely based on economic criteria. But my contention is that the conception of ‘prohibiting reservation solely on economic criteria’ is a basic feature. This conclusion is arrived at on basis of the interpretation approach with the aid of MN Thomas.
The Supreme Court in MN Thomas held that Art 16(4) is not an exception to Art 16(1), but is one of the methods for achieving equality under Art 16(1). Art 16(1) prescribes substantive equality, wherein positive actions are to be taken to establish factual equality. Therefore, 16(1) prescribes the facet of equality – substantive equality, and Article(s) 16(4) and (the impugned) 16 (6) are conceptions of substantive equality. Conception of substantive equality can only exist to the extent of which is permissible under Art 16(1) (the facet) since Art 16(1) is an all-encompassing provision- with regard to reservation in jobs. Any observation on Art 16(1), would hence be applicable to the different conceptions of reservation. Therefore, if reservation based on economic capacity cannot be brought under Art 16(1), it cannot be included through 16(6).A conception that alters the facet (substantive equality) which is basic feature, violates the basic structure doctrine. Therefore, by reading Indra Sawhney and MN Thomas together, a conception that reservation shall not be solely based on economic criteria is established. Since the 103rd amendment alters this conception and it is to be struck down.
Hence, the 103rd amendment is unconstitutional, for it alters the facets of formal equality and substantive equality, and violates the test of arbitrariness.
(This is a guest post by Arti Gupta.)
In September, 2018, the High Court of Uttarakhand in In Re v. State of Uttarakhand held that the order of the Department of Telecommunication, notified on 31st July, 2015, asking Internet Service Providers (ISPs) to disable 857 websites hoarding pornographic content, be strictly complied with. This decision draws our attention on two counts. First, the Department itself had modified its order in August, 2015 and limited the applicability of the order to websites having child pornography, but the High Court completely overlooked this. Second, the Court insufficiently relied on Section 79(3)(b) of the Information Technology Act, 2000.
Section 79(3)(b) states that an intermediary shall be liable for third party content if despite knowing or being notified by the appropriate Government or its agency that “any information, data or communication link residing in or connected to a computer resource controlled by the intermediary is being used to commit the unlawful act”, it does not cut off or disable access to that information. In essence, if an intermediary is aware that an unlawful act is being done through it but does nothing to curb it, it shall be liable. The High Court relied on Shreya Singhal v. Union of India to justify the invocation of s. 79(3)(b) when “unlawful acts relatable to Article 19(2)” (Paragraph 13) are being committed. The invocation of s. 79(3)(b) here is not fully justified because the judgment does not clarify what this unlawful act is, which is being committed. Is it the unlawful act of watching pornography, uploading of pornographic content or running a pornographic website? The Court leaves this question unanswered (another classic example of what has recently been called a “lazy reasoning”). Had the Court actually probed into the statute books to justify its order, the answer to what this unlawful offence is would have been found in s. 67A of the IT Act. Section 67A most closely mentions the offence under which the ban could have been justified. Now, the claim is not that the judgment would have been fully validated had s. 67A been relied upon. On the contrary, in this essay, I shall argue that even if the Court had relied on s. 67A, any ban on pornographic websites under it would be invalid.
Section 67A makes publishing or transmitting or causing publication or transmission of any electronic material containing a “sexually explicit act or conduct” as punishable. In Jaykumar Bhagwanrao Gore v. State of Maharashtra, the Bombay High Court, lucidly interpreting the Section, said that s. 67A goes one step ahead of s. 67 of the IT Act. Notably, s. 67 punishes publication or transmission of any electronic material which is “lascivious or appeals to the prurient interest.” On the other hand, s. 67A extends to any electronic material which is not only lascivious or appealing to the prurient interest, but also portrays a sexually explicit act or conduct. The Court in Jaykumar defined “explicit” under the Section as “describing or representing sexual activity in a direct and detailed way” (Paragraph 9). The activity can be bilateral (Court’s prudish way of referring to intercourse) or unilateral (Court’s prudish way of referring to masturbation). To make it clearer, regular image of a penis can be lascivious or appealing to prurient interest and covered under s. 67, while an image of an erected hand-held penis is covered under s. 67A because first, it is lascivious or appealing to the prurient interest, and second, it shows a unilateral sexually explicit activity.
Subsequently, it is necessary to ascertain what it actually means for something to be lascivious or appealing to prurient interest. For this purpose, we must refer to s. 292(1) of the India Penal Code because it is similar to s. 67 of the IT Act in its phrasing and underlying purpose. Lasciviousness or appeal to prurient interest amounts to obscenity under s. 292(1) and the test for obscenity is the community standards test, as propounded in Aveek Sarkar: “The picture should be suggestive of deprave mind and designed to excite sexual passion in persons who are likely to see it, which will depend on the particular posture and the background in which the nude/semi-nude woman is depicted.”(Paragraph 24)
It has been argued in Offend, Shock, or Disturb that Aveek Sarkar, despite coming up with a new test of obscenity, is similar to Ranjit Udeshi in being a case of moral paternalism. The case upholds the idea that State can compel people to live morally better lives by forbidding or prohibiting certain activities. And at the heart of this prohibition lie “community standards” and “community tolerance”. This means that whether or not something is obscene (a moral question), and requiring prohibition, will be determined on the basis of the “point of view of an average person” (Aveek, Paragraph 21) by applying extant community standards. It won’t be far-fetched to conclude that an average person’s point of view will be in conformance with the moral convictions of the society’s majority. It is the latter that is representative of contemporary community standards.
In the light of the above, if we analyse content available on pornographic websites, some conclusions can be drawn. The content contains unilateral or bilateral sexual activities, complying with the first prong of s. 67A. It is created with the intention of exciting sexual passions in persons likely to see it. Hence, it can be regarded as lascivious or appealing to prurient interest, complying with the second prong of s. 67A. Therefore, such content clearly comes within the ambit of s. 67A and restrictions under the Section apply to it. Taking the line of reasoning forward, regulation of pornographic content under s. 67A will be valid if society’s moral convictions regard such content as obscene.
Such a regulation is problematic because it is in contravention to what Ronald Dworkin calls the right to moral independence. The right to moral independence stipulates that people have a right not to face any disadvantages in the freedoms permitted to them solely on the reasoning that fellow-citizens consider a particular way of leading life as ignoble. In the context of the law on pornography, this right is violated when a justification for regulation is that the majority in a society believes that the attitudes about sex fostered in pornography are degrading or inappropriate for dignified human beings, and that those who do savour pornography have worse character on that count. Accordingly, s. 67A violates the right to moral independence because, as concluded above, regulation of pornography under the section is legitimate if society’s moral convictions regard pornography as obscene.
At this point it may be asked, why should this abstract right to moral independence be given any recognition? This right demands recognition by virtue of the case of Khushboo v. Kanniammal. The Court held that the purpose of freedom is to enable people to protect unpopular opinions, to go against existing social mores, to defy moral convictions that a large part of the society holds. However, an argument that has been raised before is that perhaps there is a difference between an actress expressing an unconventional opinion on pre-marital sex (as had been done in Khushboo) and a pornographic film. Notably, the reason for protecting the expression of an opinion in Khushboo was that “In the long run, such communication prompts a dialogue within society wherein people can choose to either defend or question the existing social mores. It is difficult to appreciate the claim that the statements published as part of the survey were in the nature of obscene communications.” (Paragraph 18) Here, a reference is being made to the social value of the opinion that is making the Court protect it. If we follow the reasoning, it can be said that something cannot be restricted as obscene when it has a modicum of social value. Therefore, a distinction between an uncontroversial opinion and a pornographic film can be that unlike the former, pornography does not fall within the ambit of protection because it doesn’t foster something socially valuable.
However, this argument does not seem to be in conformity with the Court’s intention in Aveek (which came after Khushboo). If the intention of the Court was to consider the social value of something before conferring protection, it would have done that while deciding Aveek, by adopting the second prong of the Roth test itself. The second prong requires the work in question to be devoid of any social value before it can be restricted as obscene. If the Court overtly adopted the first prong of the test to induct community standards into the jurisprudence, the non-induction of the second prong could not have been a result of mere ignorance or a failure to notice. It could only be a reflection of the judiciary’s intention to not give heed to it. Therefore, no distinction can be drawn between the protection given in Khushboo and the protection that can be given to a pornographic film.
So, does it follow that pornography should be left absolutely unrestricted? The right to moral independence, nevertheless, allows restrictions on pornography. However, it is imperative that these restrictions are not based on reasons backed by moral preferences, but are a result of different sort of motives. Dworkin writes:
“Many people do not like to encounter genital displays on the way to the grocer. This taste is not, nor does it necessarily reflect, any adverse view of the character of those who do not mind such encounters. Someone who would not like to find pornography in his ordinary paths may not even object to finding it elsewhere. He may find or believe, for example, that his own delight in other peoples’ bodies is lessened or made less sharp and special if nakedness becomes too familiar to him. Or that sex will come to be different and less valuable for him if he is too often or too forcefully reminded that it has different, more commercial or more sadistic, meaning for others.”
Restrictions can also be imposed if it is found that pornography significantly increases the dangers of crimes (e.g., sexual exploitation of children through child pornography). The crux of the matter is that these motives have nothing to do with how others ought to lead their lives or that people who savour pornography have a worse character on that count. These motives relate to the kinds of sexual experiences people want for themselves, or to the belief that watching pornography triggers crimes, etc., all of which have nothing to do with moral preferences. Hence, the moral backing of s. 67A goes against even the restrictions permitted by the right of moral independence.
Under the right to moral independence, therefore, no regulation under s. 67A is permissible to the extent that it finds its authority solely in the moral backing of the community standards.
In Re v. State of Uttarakhand: Reflecting on a Flawed Reasoning
However, even if certain restrictions on pornography are permitted, the order of the Court in In Re v. State of Uttarakhand remains outside the gamut of these permissible restrictions. To reiterate, these restrictions are warranted on account of the fact that some people are not fond of genitals displayed on their way to work, or that sex becomes less pleasurable to them when they encounter it frequently in the public. None of these entail any moral reasons and do not lead to conclusions that those who do enjoy such things are immoral on that count. Interestingly, Joel Fienberg’s “offence thesis” endorses the restrictions permitted by the right of moral independence and, hence, can be relied upon. The thesis argues that curtailment of public presentation of pornography cannot be justified just because people find it immoral, but can be justified if it is a cause of offensive nuisance to some people (like encountering coprophagia in public, or encountering displays of genitals on the way to work). The need to safeguard people from offensive, irritating and annoying experiences is a well-founded reason for regulation.
It should, however, be noted that the existence of an offensive thing in itself does not automatically warrant regulation. What needs to be established is that in order to escape the offensive thing, unreasonable inconvenience will be caused to the party trying to avoid such a conduct. As explained by Bakan, if a pornographic billboard is set up in the middle of Connaught Place, a densely populated area, it will attract the offence thesis as people will be compelled to look at it unless they undertake the unreasonable inconvenience of changing their place of residence. On the other hand, a widely available copy of Playboy with pornographic images in its middle fold pages would not fall within the ambit of offence principle as people can, without any unreasonable inconvenience, avoid looking at it by choosing not to buy it.
The offence thesis, by that analogy, strikes at s. 67A of the IT Act. The Section has the effect of prohibiting the publication or transmission of pornography for it amounts to sexually-explicit act or conduct. Such a provision does not follow the offence thesis as, despite the creation, publication and transmission of pornography on websites created for such purposes, people can choose not to indulge in the consumption of porn. This can be done by actively refraining from visiting any such websites, like one can refrain from buying Playboy. The mere existence of such websites and the sharing of pornographic content on them cannot be considered offensive because no unreasonable inconvenience is being caused in avoiding such websites. However, uploading of such content on a widely used social media platform not meant for the sharing of pornography would attract the offence thesis as people using that platform will inadvertently see pornography despite not wanting to do so. Under such circumstances, they would have to undertake the unreasonable inconvenience of not using that platform for all other purposes just to avoid encountering pornographic content.
The validity of the s. 67A is further weakened by the absence of any prohibition on the watching and storing of pornographic material, as the Section only punishes publication and transmission of sexually explicit material. Now, if people involved in the creation and distribution of pornography are mentally competent to give consent and do give consent to be a part of such creation, there is no reason to distinguish between pornography published by a foreigner on the website and pornography published by an Indian on the same website in India. In both the circumstances, any person in India would still be able to legally download it, watch it and store it. Therefore, the reasoning underlying the judgment- that banning porn sites will prevent people from watching pornography and committing crimes- is evidently flawed.
To conclude, the decision in In Re v. State of Uttarakhand reinstating ban on porn websites is just one in an array of insufficiently reasoned judgments. Further, analyzed on the touchstone of the right to moral independence and the offence thesis, the ban on porn sites finds no support. The question, however, remains: will the judiciary, at some point, overturn the Uttarakhand High Court’s judgment?
Until the 16th of September, 2019, we believed that there were some fundamental principles that underlay our constitutional system. These principles were as fundamental as breath, and as natural. We took them for granted. For example:
In its order dated 16.9.2019, in Anuradha Bhasin’s Case, the three-judge bench of the Supreme Court, led by the Chief Justice, has taken each of these principles to the shredder. In doing so, it has fashioned new constitutional “law” that resembles a directive from the Home Ministry more than it does a reasoned judgement from a constitutional court. The petition involved a challenge to the communications lockdown that has been imposed in the State of Jammu and Kashmir since August 5 (the extent of the lockdown is disputed). According to the eight principles stated above, the task of the Court was simple: it had to (a) examine the order under which the lockdown was imposed (did it flow from Section 144 of the CrPC, for example, or from the Telecommunication Suspension Rules of 2018)?); (b) examine the grounds of the lockdown, and assess whether a state-wide suspension of communications infrastructure met the test of proportionality, and (c) provide a reasoned judgement.
In other words, the Court had to hear the case and decide it.
What did the Court do? After footballing the hearing from one date to another – thus enabling a continuing violation of fundamental rights without a decision on its legality – on the 16th of September, it passed a two-paragraph order. After stating that the matter will next be listed on September 30, the relevant portion of the order reads:
The State of Jammu & Kashmir, keeping in mind the national interest and internal security, shall make all endeavours to ensure that normal life is restored in Kashmir; people have access to healthcare facilities and schools, colleges and other educational institutions and public transport functions and operates normally. All forms of communication, subject to overriding consideration of national security, shall be normalized, if required on a selective basis, particularly for healthcare facilities.
Let us examine this paragraph. The first thing to note is that the order authorising the communications shutdown has still not been made public, after more than forty days. It stands to reason that if the government (either the central government or the state government) has passed this order without publicly promulgating it, then the responsibility lies upon the government to produce it before the court, so that adjudication may take place. In exempting the government from this most basic principles of the rule of law and natural justice, the court’s order violates principles (1) and (2) mentioned above.
Next, the Court has returned no finding on the constitutional validity of the communications shutdown. It has therefore violated principle (3). It has not recorded any justification from the government in the order, or examined its validity. It has therefore violated principle (4). And by choosing to include an exhortation to the government to restore normalcy by making “all endeavours” keeping in mind the “national interest and internal security”, an exhortation without any binding force, and subject to what the government believes are the requirements of “national interest” and “internal security”, the Court has taken us straight back to 1976 and ADM Jabalpur, violating principle (5). Ten fathoms deep, apparently, is not deep enough, because nothing of ADM Jabalpur doth fade; it only suffers a sea change, into something rich and strange (ding dong bell!).
Further, the Court has engaged in no proportionality analysis. It has not examined whether a communications lockdown of an entire state is a proportionate response to what the External Affairs Minister referred to as the goal of stopping terrorists from communicating with each other. It has not even asked the State to show that other alternatives were contemplated and found wanting (if the Court was concerned about national security implications, it could even have asked for the evidence in its favourite manner, i.e., in a sealed cover). So perhaps the judgements that have actually been buried ten fathom deep – to resurrect whenever convenient – are Puttaswamy I and II.
“National interest” and “internal security” are not grounds under Article 19(2). By inventing new grounds to justify the restriction of the fundamental right to freedom of speech and expression, the Court has violated principle (6). Words matter, especially when they are being used to justify a clampdown on rights.
And lastly, no reasons have been provided in this order. This is why I observed, at the beginning of this post, that this “order” resembles more a directive from the Home Ministry, rather than a reasoned opinion from a constitutional court: not only does it provide no reasons, but it is so vague and so broadly worded, that is has practically no impact. What does “all endeavours” means? The government will decide. What does “national interest” require? The government will decide. To what extent does “internal security” require clampdown on rights? The government will decide. In the ADM Jabalpur, the Supreme Court had the minimum courtesy of telling citizens that during the Emergency, fundamental rights stood suspended – and it provided some reasons for that conclusion. Here, by framing an order for “restoring normalcy subject to whatever the government thinks is fit”, the Court has effectively done exactly the same thing, without extending that courtesy.
The order of 16.9.2019, therefore, is not recognisable under any theory of constitutional adjudication, and the bench delivering is not recognisable as what we commonly understand as a “constitutional court.” What it resembles more is a branch of the executive, enabling and facilitating the executive, instead of checking and balancing it, and reviewing its actions for compliance with fundamental rights.
And this has been a long time coming. Throughout the 1980s and the 1990s, in PIL litigation, the Court emphasised that it was not adversarial litigation, that normal standards of evidence and fact-finding were dispensable, and that it was effectively acting in partnership with the government to achieve national goals. It may have been possible to predict that if the court began to fashion itself as a partner of the government, its role as an oversight body would be severely compromised. But legal academics of the time did not mind; indeed, the foremost academic of these times, Professor Upendra Baxi, referred to concepts such as the separation of powers as “Anglo-Saxon” and outmoded, and indicated that they ought to be jettisoned as the Court became the “last refuge of the oppressed and the bewildered.”
But perhaps, all along, Anglo-Saxon or not, separation of powers has been like love: you only realise what you had when it is lost.
Beyond any chance of “resurrection.”
*I thank Malavika Prasad for bringing this case to my attention.
In a landmark judgement delivered yesterday (Amabhungane v Minister of Justice), the North Gauteng High Court in South Africa ruled large parts of the South African surveillance law unconstitutional. With this progressive ruling, South Africa joins the European Court of Human Rights in requiring surveillance regimes to conform to strict standards of proportionality and of procedural and substantive safeguards, designed to protect the right to privacy.
The RICA
At issue before the High Court was the Regulation of Interception of Communications Act [“RICA”]. The RICA set out the legal framework facilitating and regulating State surveillance in South Africa. It required surveillance requests to be authorised by a retired judge (“the designated judge”), and the judge, in turn, had to submit an annual report to Parliament; surveillance requests had to be highly detailed and specific, setting out the identity of the target, the grounds for surveillance (which were limited to serious offences and threats to national security), the gravity of the suspected offence, and disclosing (among other things) whether less intrusive methods had been tried and found not to be feasible, the proposed period of surveillance, and so on. These factors had to be taken into account by the designated judge, before deciding whether or not to grant a surveillance request. Surveillance requests could be real time, as well as requests for accessing past communications, stored by telecom companies.
It will be immediately noted that the RICA was already cognisant of privacy, to an extent greater than we ordinarily see in legislation (or even judicial opinions). For example, the requirement that surveillance requests must be approved by a judge is already two steps ahead of the Indian Supreme Court’s judgement in PUCL v Union of India, where an identical argument was rejected, and bureaucratic control of surveillance decisions was deemed to constitute an adequate safeguard of constitutional rights. Similarly, the highly specific justifications for surveillance went some way towards fulfilling the constitutional requirement of necessity and proportionality, and having that requirement adjudicated by a judicial mind. Therefore, the constitutional challenge in South Africa was already beginning from a (relatively) high baseline of privacy protection.
In this context, the applicants made further challenges to the statute, arguing that even in its present form, it was insufficiently protective of privacy (and other constitutional rights). Before examining the challenges, it is important to note, also, the analytical framework that the Court brought to this case. The Court began by noting that “prohibition of interception is the point of departure, reflecting the privacy norm embodied in Section 14 of the Constitution … [but sometimes] exceptions to the prohibition are created for law enforcement officers and security officials.” (paragraph 29) In its analysis of RICA, the Sutherland J. then went on to note that:
What does a qualitative assessment of RICA yield? The value of privacy is privileged and expression is given to the idea that where exceptions to respect for privacy are to be allowed, a high threshold of justification is stipulated. Self-evidently, to trespass into the private realm is permissible only to the extent that a superior claim to do so can be made out on grounds of necessity. This implies that other means to achieve the aims of the interception would have been ineffective, and the gravity of the circumstances outweighs the primary value of privacy. The safeguards model recognises the need for an independent authority to approve interceptions. This model, in which the person desiring the interception is distinct from the person authorising it, is designed to prevent, as far as possible, abuse of the system. Self-evidently, the approving authority’s efficacy in achieving this aim is dependent on the information made available to that authority, ie the designated judge. (paragraph 35)
This analytical framework is important, because it forms the backdrop of the analysis that would follow. The idea that privacy is the default and interception the exception is crucial, because it is this framing that puts the burden of justification upon the government. It is the government that has to show that other means would be ineffective (the requirement of necessity), that the interests are overriding (proportionality), and that the procedural safeguards (independent checking authority) are in place. And this framing also ensures that where there are interpretive gaps or ambiguities, those ambiguities (as we shall see) will be resolved in favour of the individual, and against the State. These may all sound very basic principles, but in an age where (as K.G. Kannabrian reminded us) the restrictions – instead of the rights – have become “fundamental”, their restatement is always important and valuable.
Notice
The Applicants’ first challenge was that the RICA did not provide for notice to the target of surveillance, even after the surveillance had ceased. The requirement of notice, the Applicants argued, was essential to securing access to justice and access to the courts (a guaranteed right under the South African Constitution). This was the only way to ensure accountability (because obviously, notice before surveillance would be literally self-defeating), check the abuse of surveillance, and provide targets with an adequate remedy in case it turned out that the surveillance was abusive.
Drawing from the legal position in the United States, Canada, Japan, and the ECHR, Sutherland J. agreed, holding that “the norm is that unless reasons exist not to give notice, notice shall be given (paragraph 47). Now, there might exist a small subset of cases (such as treason or espionage), where perpetual secrecy was necessary – but that could not be the norm. Consequently, Sutherland J. adopted a remedy that is commonly used in South Africa: he declared existing provisions unconstitutional, suspended the declaration of unconstitutionality by two years to give Parliament time to rectify the defects, and in the meantime, read in a provision into the Act, requiring that the target of surveillance be notified within ninety days after the cession of surveillance (paragraph 53). Sutherland J. also added that in exceptional cases, the designated judged could extend the period to 180 days at a time – but if it went beyond three years, a three-member judicial panel would be required to rule on any further extension.
Independence and Due Process
It should be obvious from the above that a lot would turn upon the designated judge, her character and her independence. Under the RICA as it stood, the designated judge was appointed by the government. The Applicants argued that this compromised independence, a position that – as Sutherland J. pointed out – was not “met with any serious rebuttal” (paragraph 63). The Applicants proposed that the designated judge be appointed by the Judicial Services Commission, that was also responsible for appointments to the higher judiciary. Sutherland J. held, however, that the specifics of the appointment process required greater deliberation; therefore, as an interim measure, he directed that the appointment would be at the nomination of the Chief Justice (paragraph 71).
Equally importantly, the Applicants pointed to the lack of an adversarial process during the grant of surveillance requests; in other words, when a surveillance request was made, the parties present would be the government, and the designated judge. This, it was argued, violated the fundamental rule of audi alterem partem, or the right to be heard. The Applicants therefore proposed a familiar remedy – that a “public advocate” be appointed, who would argue such requests on behalf of the surveillance target (because, naturally, the target themselves could not be informed – see, for example, the proposals in the draft Indian Privacy Code). The government raised a familiar objection – that the designated judge, applying her judicial mind, should be trusted to sift the material impartially and objectively. In response, Sutherland J. noted – drawing from the analytical framework discussed above – that fundamental values are “to be reluctantly trampled on with as light a tread as possible.” (paragraph 74). While he did not read in a specific requirement of a public advocate, noting that it was only one of many possible options to secure a fair hearing and an adversarial process, he nonetheless struck down the relevant provisions of the RICA because of its failure to deal with the problem ex parte orders, and – once again – suspended the declaration of invalidity to allow Parliament to deal with the problem, on the basis of the principles indicated in the judgement.
Archiving and Processing
The Applicants’ third objection was that the RICA provided no safeguards with respect to how the collected data was archived and processed – including with respect to the telecommunication companies, which were required by law to store the data for up to three years. While Sutherland J. declined to find that the period of storage was too long – noting that there could be no bright-line determination in this regard (paragraph 95) – he did hold that the procedural safeguards with respect to storage and access had to be set out transparently in the statute itself, and not by means of secondary legislation (rules and directions) (paragraph 101). Furthermore, he found that there were no provisions dealing with erasure or management of surplus data, or with respect to oversight with regard to the stored data (paragraph 106). He therefore issued a suspended declaration of invalidity with regard to the relevant provisions of the RICA.
Special Exemptions for Lawyers and Journalists
An interesting challenge made by the Applicants was that lawyers and journalists – by their vary nature – required heightened protection from surveillance; lawyers because of attorney-client privilege, and journalists because of the overriding imperatives of protecting anonymous sources. Sutherland J. agreed with the principle, noting in particular the importance of investigative journalism to any free society (the South African Constitution also guarantees specific protection to the press); exceptions were limited to serious cases such as espionage or violations of human rights (paragraph 133). Accordingly, he read into the Act a positive requirement that if the target of surveillance was a lawyer or a journalist, that fact would have to be revealed to the designated judge, who would take it into account while deciding whether or not to grant the surveillance request.
Sutherland J.’s analysis is particularly interesting when we juxtapose it with the Indian Supreme Court’s repeated insistence that the press is on par with every other citizen, and cannot claim any specific privileges under Article 19(1)(a). While the Indian Constitution does not provide explicit protection to the press (unlike the South African), the argument is a red herring: it is nobody’s case that journalists have a special status or additional rights; the argument is that the practice of journalism – an integral element of the freedom of speech and expression, in its avatar of protecting the free flow of information in a democratic society – requires a certain kind of protection if it is to be meaningful at all; and that protection flows from Article 19(1)(a). It is this analysis that shines through clearly in Sutherland J.’s judgement.
The Illegality of Bulk Surveillance
The Applicants’ final argument was that the RICA did not authorise bulk or mass surveillance (i.e., surveillance without probable cause, where dragnets are placed that capture, for instance, all communications using certain keywords, that are later mined for information). In response, the government relied upon another statute – the National Strategic Intelligence Act, which allowed for the gathering, correlating and analysing of intelligence. It was here, once again, that the analytical framework we discussed at the beginning of this post became relevant; because in the absence of specific authorisation of bulk surveillance, Sutherland J. found that it could not be implied into either the NSIA or the RICA (paragraphs 151 & 163). As he noted, “Our Law demands such clarity, especially when the claimed power is so demonstrably at odds with the Constitutional norm that guarantees privacy.” (paragraph 163) He did not, however, pronounce on the constitutional validity of bulk or mass surveillance per se.
Conclusion
The minutiae and details of Sutherland J.’s judgment are, of course, fascinating to privacy scholars and lawyers. There are, however, a few broader points to take home. The first is his clear insistence that privacy is the default and surveillance the exception, and then actually following through by applying that framework in adjudicating the constitutionality of specific surveillance provisions. And flowing from this is a particularly important point: Sutherland J. did not write an activist judgement, with free-wheeling claims about the unconstitutionality of surveillance in general, or prohibiting all forms of surveillance; in this, he was appropriately deferential to the law-making authorities. Deference, however, does not mean subservience, or writing a blank cheque to the government under the guise of national security or public safety. Rather, Sutherland J. required the government to explain and justify the need for each impugned provision of the RICA; and where the government was not able to provide a satisfactory explanation (and indeed, as evident above, many of those issues involved little more than pure common sense!), the provision was struck down or read down. Under the garb of deference, therefore, Sutherland J. did not hide from his duty to examine surveillance provisions under constitutional standards of necessity and proportionality, and to ensure that even the surveillance authorities were bound by the rule of law. This is particularly important for us, in a time where India’s surveillance infrastructure is opaque, its legislative foundations unclear, the constitutional status of bulk surveillance unclear, constitutional challenges pending, and a Court that increasingly uses “national security” as a mantra to flee the field of adjudication. Sutherland J.’s judgement is a timely reminder of how courts ought to work in holding the executive to account under a constitutional framework/
(In this concluding post in the ICLP Round Table on CLPR’s Draft Equality Bill of 2019, Jayna Kothari responds to the previous posts. Read the discussion here, here, here, and here.)
The Equality Bill 2019 is in its early stages of the draft and this conversation with Gautam Bhatia, Sandra Fredman and Malavika Prasad is extremely useful and constructive. These comments raise several important concerns and would be helpful in the improvement of the Bill.
Before responding to the some of the comments to the Bill, I would like to give an overview the background of the Bill. The Bill was conceptualized to take forward the equality guarantees that recent Supreme Court decisions protected, such as the right to recognition of sexual orientation and gender identity. It was also conceptualized because the non-discrimination legislations that we currently have in India are not adequate and do not provide enough remedial measures to address discrimination.
Equality bills have been drafted in the past, especially the effort done by Tarunabh Khaitan in drafting the Anti-Discrimination and Equality Bill 2017. The Equality Bill has also examined in great detail the UK Equality Act 2010 and the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 of South Africa and has tried to learn and improve on these legislations.
Two of the most difficult tasks were to draft the sections on protected characteristics and how to define ‘discrimination’. In addition to these tasks there have been substantive responses to concerns on contract and informal workers being left out of the sections on discrimination in employment. I will try and address these concerns below:
Protected characteristics: One of the most challenging concerns has been to decide which protected characteristics to include in the Bill and which to not include. The inclusion of ‘socio-economic status’ was a particularly complex characteristic to include and Danieli Evans Peterman’s article on the need for protection on the basis of socio-economic status in discrimination statutes is particularly instructive. Socio-economic status has been defined in the Bill as a social or economic condition or perceived condition of a person who is disadvantaged by poverty, low income, homelessness, or lack of or low-level educational qualifications. Therefore, the definition would imply that it would be only those who are disadvantaged by socio-economic status, and would not be available as a ground for those of a higher socio-economic status to raise the claim of discrimination. However, Sandra Fredman’s suggestion of using the term “socio-economic disadvantage” instead might work better and would make it clear that it is only meant for these who are disadvantaged by socio-economic status. Such a similar concern had been raised in the consultations that CLPR has had on the Bill with stakeholders and this has been raised not only in the context of the protected characteristic of ‘socio-economic status’ but also interestingly in the case of caste and the concern that only persons disadvantaged by a lower caste should be able to use caste as a ground for discrimination. The protected characteristic should not be available to persons of a higher caste to claim discrimination. Hence these concerns would need to be kept in mind while defining all protected characteristics to some extent.
Definition of discrimination: “Discrimination” has been defined in the Bill to mean any act or omission, including a policy, law, rule, practice, condition or situation which directly or indirectly imposes burdens, obligations or disadvantage, denies reasonable accommodation, promotes negative stereotypes, withholds benefits, opportunities and advantages from any person on one or more protected characteristics. Further, in Chapter II on prohibited conduct, discrimination has been expanded to include not only direct and indirect discrimination, which has been included in previous equality law drafts, but also to include structural discrimination, hate speech, segregation and boycott, harassment and victimization and lynching. Our attempt was to build on Sandra Fredman’s definition of substantive or transformative equality and its four dimensional framework, to include many more facets. Disability jurisprudence shows us how denial of reasonable accommodation amounts to discrimination. Caste related experiences of discrimination manifest in segregation, exclusion, boycott and lynching and gender based forms of discrimination often manifest in harassment and victimization and all of these forms often results in structural discrimination at a larger level. The Bill has attempted to include all these experiences to strengthen the understanding and definition of discrimination. The inclusion of hate speech as a form of discrimination is particularly challenging and we are still grappling with an appropriate definition which does not curtail the freedom of speech and expression.
Employment and Workplace Discrimination: The comments from both Sandra Fredman and Malavika on the inclusion of informal workers are extremely useful and the Bill needs to address this concern. The definition of “employer” in the Bill was meant to be wide enough to include not only employers in the formal sector but also those in charge of informal employment or unorganized work sector such as domestic work. The suggestion to specifically include contract workers and employers who engage contract or temporary workers could be made more clear and specific. It is also true the definitions in the Bill might not include self-employed workers such as Uber drivers or other such persons engaged in app based employment and who are discriminated against by clients or customers. The Bill needs to provide for such inclusion within its employment related guarantees. The challenge of including people engaged in other forms of livelihood such as hawkers, vendors, artisans etc. can also be addressed perhaps by expanding the definitions of places of public accommodation and to include discrimination faced by vendors from customers or the State authorities.
The comments received on the Equality Bill have been extremely important and we hope that these conversations continue. We welcome inputs and feedback on the Equality Bill draft and invite more readers to engage with the text. All of this will help in not only improving the draft but also in pushing for the Bill to become law soon.
(The writer is a senior advocate.)
Constitutional Law and Philosophy 