Mian Abdool Qayoom is the 76-year-old President of the Jammu and Kashmir High Court Bar Association. Since August 5 – the day the constitutional status of Jammu and Kashmir was altered – Qayoom has been undergoing “preventive” detention, under the Jammu and Kashmir Public Safety Act, which authorises detention for upto two years without trial. The ostensible basis of the detention has been that he would “motivate people to agitate against abrogation of Article 370.” Despite ill health (diabetes and a single kidney), Qayoom’s detention was extended last week. And on Friday, the Jammu & Kashmir High Court dismissed a legal challenge to his detention.
Among other things, in its judgment, the High Court took the view that the “subjective satisfaction of the detaining authority to detain a person or not is not open to objective assessment by a court. A court is not a proper forum to scrutinize the merits of administrative decision to detain a person.” This, of course, essentially gives absolute impunity to the State on the issue of detention: if “subjective satisfaction” is the standard, and the Court is not the “proper forum” to challenge detention, then – effectively – the right to personal liberty exists at the absolute discretion and mercy of the government. That, needless to say, makes the right meaningless.
Now what does one say about this? One could say that this line of “reasoning” parrots the executive supremacy logic that was at the basis of the ADM Jabalpur Case – a case that was allegedly buried “ten fathoms deep with no chance of resurrection” by the Supreme Court in 2017, except that ten fathoms is evidently not deep enough for a judiciary that wants to prove itself more loyal than the King (in fact, the High Court judgment quotes a number of cases – both before and after ADM Jabalpur – that foreshadowed and echoed its most notorious lines, including that of preventive detention being a “jurisdiction of suspicion”). After all, when the memo on overruling ADM Jabalpur hasn’t even reached some of the judges of the Supreme Court, how could it be expected to reach the still locked-down Kashmir, where it is anyway too cold for people to exercise their Article 19(1)(d) rights (according to a former Chief Justice of India)? One could say that far from being buried ten fathoms deep, or any fathoms deep, it has by now become abundantly clear that ADM Jabalpur is the dominant logic that that governs judicial action in India today, and that the High Court was at least refreshingly honest in giving that to us straight.
One could say all that, but there probably comes a point at which repetition grows tedious, and is necessary only in order to complete the record, rather than present any new or interesting insight about the workings of the judiciary today. But thankfully, the High Court has also given us something more to think about: it quoted the Greek “thinker” Sophocles, noting that “laws can never be enforced unless fear supports them.”
No quote exists, of course, without context. And a closer look at the context of the Sophocles’ quote that the High Court chose is perhaps more revealing than the actual order. A preliminary point, of course, is that the society that gave us the Melian Dialogue might not be the most reliable contemporary guide to ideas of law, justice, and morality; indeed, one would hope that the concept of law would have progressed somewhat in the 2500 years since the time of the classical Greeks.
More than that, however, is the specific background of the quote. These words – that the High Court paraphrases – are found in Sophocles’ play, Ajax. And Sophocles puts them into the mouth of Menelaus – the (semi-mythical) Greek king other contemporary playwrights denounced for his arrogance and cruelty, and who initiated a destructive and pointless ten-year war because his wife left him for another man. Not, perhaps, the model statesman whom you want expounding on the idea of law. And if the High Court had paid attention to Menelaus’ speech where the quoted words occur, a few lines above it would have found the following words: “‘tis a sign of wickedness, when a subject/ deigns not to obey those placed in power above him.” This is unsurprising: equating law with fear is the hallmark of societies where power flows from hierarchy and is kept by force.
Notably, in both cases, Menelaus s referring to the conduct of (the now dead) Ajax, and is refusing permission for burying his body. Ajax, in turn, had killed himself after going on a killing spree, triggered by his rage at being adjudged only the second-best Greek warrior when it came to massacring soldiers during the just-concluded Trojan War. After a lengthy dispute between Menelaus and another character, Teucer, the body of Ajax is indeed buried.
The literary, dramatic, and artistic merits of Ajax notwithstanding, here – in essence – is what the play is about: it is the aftermath of a destructive and unjustifiable war of aggression, where a soldier from the army of conquest massacres innocent civilians because he feels that he has not been credited enough for his role in the war, then kills himself, leading to higher officials having an argument – not about the massacre – but about whether his body should be given a burial (finally, it is). The higher official is angry – not because innocent civilians have been killed – but because his “subject” has disobeyed someone “placed in power above him.” But is finally persuaded to overlook the indiscretion, and impunity survives untouched. And it is within this context, this society, and this cast of characters, that we find the words the J&K High Court thought fit to apply to preventive detention in a 21st century constitutional democracy: “laws can never be enforced unless fear supports them.”
Perhaps the High Court did, after all, intend to make exactly this point: that we do live in the world of Ajax and Menelaus, and the world of the Melian Dialogue. Perhaps, then, we should applaud – once again – the refreshing honesty, topped off with a dash of literary flourish.
Or, perhaps the High Court would have been better served by remembering that the Greek army camps outside ruined Troy were not the best models for a constitutional democracy, and looked elsewhere in Sophocles’ ouvre; perhaps the legendary play Antigone, where a guard told another King:
“‘Tis sad, truly, that he who judges should misjudge.”
Mian Abdul Qayoom, meanwhile, remains in jail without trial.
Previously on this blog, we have discussed in somedetail the litigation challenging the five-month-long internet shut-down in the Kashmir Valley. Today, a three-judge bench of the Supreme Court handed down its judgment in the challenge. While there was no effective relief in the judgment – the Court did not order a restoration of internet services in the valley, as it did not return a finding on the issue (see below) – it nonetheless reiterated certain important constitutional principles. While it is unfortunate, therefore, that the longest internet shut-down in a democratic country continues (at least for the foreseeable future), in this post, I will set out what the judgment actually did do, and how it provides a platform for future challenges to internet shut-downs as well as to the imposition of Section 144 of the Code of Criminal Procedure.
What the State Lost
To understand the judgment, it is important to understand two bizarre claims advanced by the State at various points of the hearing. The State (i) refused to produce the orders that it had passed under Section 144 CrPC and the 2017 Telecom Suspension Rules, and which were the legal bases of the fundamental rights restrictions in the Valley; (ii) cited terrorism in Kashmir to argue that it was exempted from following the proportionality standard while restricting fundamental rights, and that, in the interests of national security, the Court ought not to intervene.
In essence, therefore, what the State – and its lawyers – were asking for was a complete carte blanche with respect to the operations in Kashmir. If the orders restricting fundamental rights did not need to be produced, there was no effective way to challenge them; and if the Court could not intervene because “terrorism”, then there was no effective forum where to challenge them. In other words, the State – and its lawyers – asked the Court to effectively hold that Kashmir was in a state of permanent Emergency, where fundamental rights stood suspended and at the mercy of the State, even though there had been no declaration of an Emergency at any point. The dangers of such an argument are obvious; as I’ve argued before, what the State wanted was a permanent normalisation of the Emergency regime, where the invocation of “national security” would grant an automatic judicial immunity from justifying the constitutionality of fundamental rights restrictions.
On both counts, however, the State’s arguments were comprehensively rejected. On the first issue, the Court made it clear that the orders providing legal cover to the imposition of Section 144 CrPC and the internet shut-down had to be made public, so that citizens could know – and, if they chose – challenge the bases on which their fundamental rights were being restricted. If the State wanted to withhold any part of such orders because of national security concerns, it would have to justify that, on a case to case basis.
On the second count, the Supreme Court reiterated that, at all times, restrictions upon fundamental rights had to be consistent with the proportionality standard. In particular, as part of the proportionality standard, the State had to select the least intrusive measure to achieve its legitimate goals. As the Court noted in paragraph 70:
However, before settling on the aforesaid measure, the authorities must assess the existence of any alternative mechanism in furtherance of the aforesaid goal. The appropriateness of such a measure depends on its implication upon the fundamental rights and the necessity of such measure. It is undeniable from the aforesaid holding that only the least restrictive measure can be resorted to by the State, taking into consideration the facts and circumstances. Lastly, since the order has serious implications on the fundamental rights of the affected parties, the same should be supported by sufficient material and should be amenable to judicial review.
And as it went on to note in paragraph 71:
The degree of restriction and the scope of the same, both territorially and temporally, must stand in relation to what is actually necessary to combat an emergent situation.
Applying this standard to the specificity of internet shut-downs, the Court made four further observations. First, that the right to use the internet as a medium for free speech and expression and for trade and commerce, was protected under Article 19(1)(a) of the Constitution; secondly, that Article 19(2) allowed for the restriction of “abrasive statement(s) with imminent threat … if the same impinges upon the sovereignty and integrity of India…”; thirdly, that a perpetual internet shut-down would fail the test of proportionality; and fourthly, that the State’s argument that it couldn’t selectively block websites because of a lack of technology could not be accepted, as “[if] a contention is accepted, then the Government would have.”
Taking these four observations together, it is evident that the ongoing internet shut-down in Kashmir completely fails constitutional standards, as the government did not even attempt to justify it on grounds of proportionality, or that it was only targeting statements carrying an “imminent threat.” The Court went on to note that all of this required that when orders were being passed under the Telecom Suspension Rules to shut dow the internet, those orders would have to explicitly reflect how – in the specific case – the State action was proportionate.
While the reiteration of the proportionality standard in the context of internet shut-downs was a reinforcement of existing law, the Court also applied the same standard to Section 144 orders – which marks an incremental advance in the law. Up until now, the judgments governing the imposition of S. 144 were the old decisions of Babulal Parate and Madhu Limaye, whose language remained vague enough to be taken advantage of by unscrupulous State actors. Today the Supreme Court made it clear, however, that Section 144 orders would also have to abide by the proportionality standard (paragraph126, and that that would have to be reflected in the text of the orders themselves. The Court also observed that in the normal course of things, S. 144 orders would have to be limited to particular areas or issues – thus casting severe doubt on the constitutionality of wide-ranging long-running 144 orders such as the one recently imposed in all of Bangalore, or the continuing order in Ahmedabad.
What the Petitioners Didn’t Win
Despite these findings, however, the Supreme Court did not rule on the validity of the internet shut-down or the imposition of S. 144 throughout the Valley. Its reason for that was somewhat curious: it held that because all of the internet shut-down orders had not been placed before it, it could not (yet) engage in judicial review. This is curious, because the onus of producing these orders undoubtedly lay on the State – indeed, the Court expressly directed it to do so in the operative part of its judgment. Furthermore, once the Court had held that the right to access information through the internet was protected by Article 19(1)(a), and that restrictions had to be proportionate, surely then the default situation was that the right would have to prevail over the restriction; in other words, until the government actually published the relevant orders with all the reasons (as required by the judgment), the internet ought to have been restored.
Instead, the Court directed that the Review Committee under the Telecom Suspension Rules would have to review the shut-down orders on a weekly basis, and that all the orders so far would have to be reviewed. Presumably, then, once this is done – and once the orders are published – a fresh challenge could be mounted on the basis of the principles laid out in this judgment (which, as I have indicated above, strongly suggest that the Kashmir shut-down is – and had always been – illegal).
Consequently, to the extent that the basis of the Court’s decision to not review the internet shut-down orders was that the State had not produced the orders in question (for five months), the consequence should have been that until the State – and its lawyers – decided to follow the law and the Constitution once again, fundamental rights could not continue to be restricted. That, however, seems like it will be a battle for another day. In the meantime, it is important to recall that in the wake of the CAA/NPR/NRC protests, the indiscriminate use of Section 144 and of internet shut-downs has been back in vogue, and there are now pending challenges in several High Courts. Today’s judgment sets out the principles on the bases of which these can be adjudicated: and the principles are that these orders restricting fundamental rights are subject to strong judicial review, that the State – and its lawyers – cannot get away by singing paeans to national security, that each order must be published, made public, and explicitly set out why the measure is proportionate, and that lastly, the Court shall – and must – examine whether least restrictive measures have been used, keeping in mind the importance of the internet to fundamental rights. These are sound procedural – and substantive bases – to move forward.
[Disclaimer: the author was one of the lawyers representing the petitioners.]
A three-judge bench of the Supreme Court has heard oral arguments and reserved its judgment in Anuradha Bhasin v. Union of India and Ghulam Nabi Azad v. Union of India, in which the petitioners have impugned, among other things, the ongoing shutdown of the Internet in the Kashmir Valley. The arguments raised in these petitions touch upon questions critical to the functioning of India’s democracy. This post is an effort at expounding some of the issues at stake in the case.
Sometime on August 4, on the eve of the Union government’s decision to issue presidential orders divesting the state of Jammu and Kashmir of its autonomy, a complete blockade on information and communication services was placed in the region. Since then, a few of these restrictions have been lifted, but access to the Internet in the Kashmir Valley remains elusive. As the Petitioners have pointed out, while landlines and post-paid mobile phone voice calls are now functioning, only a miniscule proportion of the population in the region have access to these services. Post-paid mobile phone SMSes remain blocked and so too pre-paid mobile phone voice calls and prepaid mobile phone SMSes. Messaging services, as we’re only too aware now, are critical to carrying out various forms of economic transactions. They are, in many ways, an essential service. Even according to the government’s own response, out of a total of nearly 60 lakh mobile phones, only 20 lakh phones are working and even on those phones SMSes remain wholly blocked. What is more, access to the Internet in the Kashmir Valley continues to be prohibited, despite the critical role that the web plays today in various kinds of economic, social and educational activities.
These orders blocking communication services, Ms. Bhasin and Mr. Azad have argued, have had a damaging effect on a number of fundamental rights. In Ms. Bhasin’s case, the newspaper she edits, The Kashmir Times, could not be distributed on 5 August and went entirely unpublished between 6 August and 11 October. Today, owing to the absence of the Internet, and the barriers placed on journalists seeking to do their job, only a pruned version of the newspaper is published. Therefore, in Ms. Bhasin’s argument, the ban on communication services, in particular the restrictions placed on the Internet, have affected both her right to free speech and her newspaper’s right to freedom of the press.
The Leader of the Opposition in the Rajya Sabha, Mr. Azad, on the other hand, who was himself prohibited from visiting the Valley, until the Supreme Court intervened, has underlined various other impacts that the bans have had on people living in Jammu and Kashmir. For example, basic livelihood, he points out, has been deeply affected. Industries such as tourism, handicrafts, manufacture, construction, cultivation, agriculture and information technology have been brought to a state of cessation, with the economy in the region suffering losses running into the thousands of crores. Access to basic healthcare too, he argues, has been impeded, with people in the Valley unable to avail of the government’s Ayushman Bharat scheme. Over and above all this, the ban has meant that people in the Valley have been entirely cut out from the rest of India. Residents outside the state have been unable to speak to their families in Kashmir, leading, Mr. Azad says, to a great deal of mental stress and anxiety.
Issues and legal arguments
It’s simple enough to deduce the issues that arise in the case: (1) Does a denial of access to the Internet violate any fundamental right? And (2) can access to the Internet ever be blocked, and, if so, under what circumstances can such an action be validly enforced?
Access to the Internet
Perhaps the finest exposition of why access to the Internet is a fundamental right is contained in a recent judgment of the Kerala High Court in Faheema Sharin v. State of Kerala. There, the court recognised that access to the Internet is today essential, because it grants people an avenue not only to information but also to a host of other services. Although the web brings with it its own set of challenges there can be little doubt, as the court held, that it enhances individual freedom, in granting to people a liberty of choice, in determining what they want to read, see and hear, in determining what kind of information they wish to access, and, more than anything else, in limiting the government’s ability to control a person’s private self.
As the High Court held, the Internet has become so central today to our lives that it plays an instrumental role in the realisation of a number of constitutional guarantees. The court, in arriving at its conclusions, relied on a United Nations General Assembly Resolution which noted how access to information on the Internet “facilitates vast opportunities for affordable and inclusive education globally, thereby being an important tool to facilitate the promotion of the right to education.” Given the importance of education to the right to life and personal liberty under Article 21 and given how important the Internet was in fulfilling these promises, access to the web, the court held, ought to be considered in and of itself as a fundamental, inalienable right.
Apart from this the court also recognised, that the Internet constitutes not only a medium for speech but also promotes a gateway to information. A right to access the Internet, therefore, in the court’s opinion, has to be seen as an integral component of a citizen’s right to freedom of speech protected under Article 19(1)(a) and can only be restricted on the grounds enumerated in Article 19(2).
The Kerala High Court’s view that access to the Internet is a fundamental right is not only in keeping with global trend but is also consistent with India’s entrenched free speech jurisprudence. After all, as early as in 1961, the Supreme Court had in Sakal Papers v. Union of India, recognised the instrumental value of speech: that access to the news and the media’s role in facilitating the distribution of information and knowledge played a direct role in the promotion of democracy. That the Internet plays a significant part in ensuring the protection of the right to health, personal liberty and livelihood therefore ought to mean that accessing the web deserves to be considered as fundamental, as flowing out of the guarantees contained in Articles 14, 19 and 21, which, today, after the 9-judge bench’s judgment in Justice (Retd). KS Puttaswamy v. Union of India (Puttaswamy I) (2017) 10 SCC 1, together form a trident against arbitrariness.
Therefore, any blocking of the Internet would ex facie violate fundamental rights. As a result, to enforce a restriction on the Internet an action of the state must be predicated on compelling reasons and must necessarily be made in a constitutionally sustainable manner.
When can restrictions be made
It is today settled law, as is clear from a reading of the judgments of the Supreme Court in Puttaswamy I and Puttaswamy II (the Aadhaar judgment), that fundamental rights can only be limited by state actions that conform to the doctrine of proportionality. The test to determine what state actions are proportionate was laid down by a 5-judge bench of the Supreme Court in Modern Dental College v. State of MP. The court there relied on judgments of the Supreme Court of Israel and the Canadian Supreme Court to hold that the doctrine was inherent in Article 19 itself.
A limitation of a constitutional right will be constitutionally permissible if (i) it is designated for a proper purpose; (ii) the measures undertaken to effectuate such a limitation are rationally connected to the fulfilment of that purpose; (iii) the measures undertaken are necessary in that there are no alternative measures that may similarly achieve that same purpose with a lesser degree of limitation; and finally (iv) there needs to be a proper relation (‘proportionality stricto sensu’ or ‘balancing’) between the importance of achieving the proper purpose and the social importance of preventing the limitation on the constitutional right.
In Puttaswamy II, the Supreme Court reiterated this test when it held as follows:
The proportionality test which is stated in the aforesaid judgment, accepting Justice Barak’s conceptualisation, essentially takes the version which is used by the German Federal Constitutional Court and is also accepted by most theorists of proportionality. According to this test, a measure restricting a right must, first, serve a legitimate goal (legitimate goal stage); it must, secondly, be a suitable means of furthering this goal (suitability or rational connection stage); thirdly, there must not be any less restrictive but equally effective alternative (necessity stage); and fourthly, the measure must not have a disproportionate impact on the right-holder (balancing stage).
The question therefore that the Supreme Court must now answer in Anuradha Bhasin and Ghulam Nabi Azad is whether the state actions imposing the communications ban in the Kashmir Valley meets this four-prong test or not. And given that there has been an ex facie violation of a fundamental right, the burden to establish that these conditions are, in fact, met in this case lies on the state. Here, the restrictions placed quite clearly impinge on the doctrine of proportionality for the following reasons:
The orders imposing the Internet shutdown have no force of law. Presently, orders shutting down the Internet are made under the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 (“Telecom Rules”). These Telecom Rules were framed through the power prescribed on the Union executive by Section 7 of the Indian Telegraph Act, 1885. The Telecom Rules require the Executive, among other things, to provide a reasoned order when it directs the withdrawal of the Internet. Here, however, the orders imposing the shutdown were not made public. They were only released to the court during the course of the hearings, and, that too, with tremendous reluctance. A perusal of those orders that were released, however, the petitioners have argued showcase a complete non-application of mind. To take just one example, an order containing the subject: “Shut down of broadband services” was issued to extend an order whose subject read “Shut down of Land Line services.” What is more, while it is the Home Secretary (Govt. of India) or the Home Secretary of the state government concerned who is the competent authority to issue orders of suspension of the Internet under the Telecom Rules, in this case, the petitioner contend, the orders were issued by the Inspector General of Police. But, more than anything else, the orders themselves were bald and devoid of any reasons despite the Telecom Rules’ express mandate that orders suspending the Internet be issued for explicitly spelled out reasons.
The orders issued suspending the Internet are not in furtherance of any legitimate state aim. The government’s case is that it apprehends that the Internet will be misused by “anti-national” elements and will lead to a deterioration of “law and order.” However, neither phrase invoked confirms to the requirements of Article 19(2) of the Constitution. The Supreme Court has repeatedly held (see: Superintendent Central Prison, Fatehgarh v. Dr. Ram Manohar Lohia and In Re Ram Lila Maidan Incident) that the term “law and order” is not subsumed within “public order” which is the ground that Article 19(2) stipulates. In the latter case, the court held that: “the distinction between `public order’ and `law and order’ is a fine one, but nevertheless clear. A restriction imposed with `law and order’ in mind would be least intruding into the guaranteed freedom while `public order’ may qualify for a greater degree of restriction since public order is a matter of even greater social concern. Out of all expressions used in this regard, as discussed in the earlier part of this judgment, `security of the state’ is the paramount and the State can impose restrictions upon the freedom, which may comparatively be more stringent than those imposed in relation to maintenance of `public order’ and `law and order’. However stringent may these restrictions be, they must stand the test of `reasonability’. The State would have to satisfy the Court that the imposition of such restrictions is not only in the interest of the security of the State but is also within the framework of Articles 19(2) and 19(3) of the Constitution.” In this case, the orders imposing the restrictions on the Internet the orders reference “law and order” without showing us how preservation of “public order” legitimately required the restrictions as imposed. What is more, as the petitioners have contended, the term “anti-national” is simply undefinable and does not fall within any of the carefully delineated grounds stipulated in Article 19(2) of the Constitution.
The orders imposing the shutdown are not rationally connected to the fulfilment of the supposed purpose, that is the prevention of violence. While the state has repeatedly claimed that the Internet will be misused by miscreants and anti-national elements it has provided no actual evidence of such misuse being a real and genuine threat. Indeed, as the petitioners have shown, studies indicate the opposite, that a shutdown of the Internet leads to anxiety and unease and augment the risk of protests and demonstrations turning violent. Therefore, the state has simply failed to demonstrate the existence of a cogent and sensible nexus between the restrictions imposed and the purported aim behind the orders.
Finally, the orders also do not conform to the test of necessity, that there was a compelling need for these actions and that the purported objective could not have been achieved through less restrictive and less invasive means. When even according to the state’s own arguments it is only a minuscule minority that are likely to commit violence, and when a whopping majority of the populace represent no threat to public order it is difficult to conceive how a complete shutdown of the Internet can constitute a necessary and proper action. Indeed, as the petitioners have shown, the state has often, in the past, isolated persons prone to terrorising from others, based on their registered mobile phone numbers. What is more, the state could quite easily have also resorted to blocking certain websites alone if the intention was to prevent incitement of violence. That a wholesale blockade of the Internet has been in force for more than four months evinces the fact that the State hasn’t so much as made an effort at ensuring that it adopts the least restrictive means possible to ensure that violence isn’t perpetrated in the region.
Ultimately, therefore, the actions of the state in enforcing a host of communication barriers in the Kashmir Valley, in particular its decision to entirely restrict access to the Internet, constitute a collective punishment on the people of the region and violate, among other things, the fundamental rights guaranteed under Articles 19(1)(a) and 21 of the Constitution.
On the Supreme Court’s last working day of 2019, it agreed to hear the constitutional challenge to the Citizenship (Amendment) Act 2019 (“CAA”). With this, the court takes into its winter vacation the challenges to the CAA, the amendment of Article 370 and the internet shutdowns in Kashmir. Outside the cloistered halls of the court, the public debate over the legality and desirability of these measures has reached fever pitch. With both the legal and political processes of contestation in full swing, it is an appropriate time to examine how divorced the two truly are.
Our trust in courts as institutions of justice flows from a few key ideas: that courts are isolated from short term political pressures, they decide on the basis of settled legal principles irrespective of how politically sensitive a case is, and they are independent from the elected government of the day and thus serve as a check on government power. This piece critically examines these assumptions about courts. I argue that while courts do decide cases in accordance with legal principles, the actual outcomes of crucial constitutional cases balance the requirements of the law, deference to the government, and deference to public sentiment. Recognising that alongside normative legal principles, public sentiment and the government have a crucial role to play in constitutional adjudication re-emphasises the need for active political contestation and debate over these issues.
Isolation, independence and matters of principle
Courts are understood as being isolated from short term political pressures. Unlike elected legislators, who are accountable to their constituents and respond to their immediate needs, unelected judges with fixed tenures and salaries can deliberate in a ‘neutral’ manner and render decisions that may be politically unpopular but necessary for the long term preservation of human rights and democracy. Judges are not bound by party ideology or the need to garner the popular vote, so they can arrive at substantively ‘better’ decisions. For example, after a terrorist attack, public sentiment may overwhelmingly favour the torture and public execution of a captured terrorist. The government, acting on the demands of the electorate, may decide to torture and execute the terrorist (after all, good government responds to what the people want). The courts however, isolated from public sentiment and understanding the long-term benefits of upholding the rule of law and human rights, can ensure the captured terrorist receives a fair trial.
A second assumption underpinning the public trust in courts is that courts rely on precedent (stare decisis) and settled legal principles to decide cases. Therefore, once courts construe the phrase ‘equality’ or ‘liberty’ as having an expansive meaning, the same expansive interpretation will subsequently be applied irrespective of how politically significant or insignificant the facts of a case. This is often why progressive judgements are celebrated, because we presume that the reasoning of these judgements will bind future benches of the court and lower courts. The last, and perhaps most significant, assumption about courts is that they stand independent from the elected government. Coupled with their isolation from short-term political pressures and their commitment to decide cases on legal principles, this leads to the overarching argument that courts stand as a check against the abuse of government power.
A chequered track record
A close examination of the track record of courts during periods of regularised and flagrant human rights violations casts doubt on the argument that courts are effective checks on majoritarian government power. In India, the most famous example of the court’s failure to resist the use of government power is ADM Jabalpur v S S Shukla. The case, heard at the height of the emergency imposed by former Prime Minister Indira Gandhi after her election was challenged in 1975, centred around whether individuals detained by the government (often political opponents of the Prime Minister) had a right to approach the courts for relief during the emergency. Despite several High Courts holding that detained persons had a right to approach the court even during an emergency, in ADM Jabalpur the Supreme Court held that no such right existed and left the detentions to the sole supervision of the government. The Indian Supreme Court is not alone in turning a blind eye to the exercise of government power against its citizens during times of national or political crisis. After the attack on Pearl Harbour, the U.S. Supreme Court upheld the internment of all persons of Japanese ancestry in Korematsu v United States – citing the overriding needs of national security and avoidance of espionage. In Liversidge v Anderson the House of Lords held that the Home Secretary did not have to objectively justify his detention order with reasons and the such matters were not justiciable in courts. These cases have since been overruled or denounced as ‘black marks’ on an otherwise unblemished record of judicial history, but they serve as powerful reminders that when governments exercised their power against citizens in the most extreme ways, courts have been found to be inadequate protectors.
Sabarimala – the Supreme Court’s problem child
A prime example of how far the Indian Supreme Court’s behaviour can stray from the core assumptions we associate with courts acting as politically insulated institutions dispensing justice according to legal principles is the court’s treatment of the Sabarimala dispute. To recap: in 2018 a five-judge bench of the Supreme Court struck down the prohibition on menstruating women entering the Sabarimala temple as violating the constitutional guarantees of equality and non-discrimination. The judgement led to a public backlash in Kerala (the state where the Sabarimala temple is situated). Those opposing the judgement took the law into their own hands and refused to permit the entry of women into the temple, often attacking women who tried to enter. A review petition was filed against the 2018 judgement, the significant irregularities of which have already been addressed on this blog (here) and do not need to be rehashed. It is sufficient to note that one judge (Khanwilkar J) refused to stand by the judgement he had signed less than a year ago in 2018 and in November 2019 the court decided that the 2018 judgement needed to be ‘reconsidered’ by a larger bench. To understand what happened next, it is important to note that by referring the dispute to a larger bench, the court did not stay the 2018 judgement but merely kept the review petition pending. The pendency of a review petition does not deprive a judgement from having the force of law. This means that at the time of writing this post, the 2018 judgement remains good law and a woman should be able to enter Sabarimala. When the Supreme Court was asked to direct the Kerala Government to uphold and enforce the judgement, the Chief Justice of India acknowledged that there was no stay on the 2018 judgement, but refused to direct the State Government to enforce the judgement – noting the matter was “very emotive” and the court wanted to avoid violence.
The treatment of Sabarimala is a testament to how the Indian Supreme Court consider both legal principles and public sentiment in deciding constitutional cases. The 2018 judgement was based precisely on the legal principles we associate with constitutional courts. However, unlike the court’s decisions decriminalising consensual gay sex or adultery, where the court’s decision faced widespread and organised public resistance, the court did a double take, refusing to enforce its judgement and stating that the judgement itself needed to be ‘reconsidered’. The ‘settled’ legal principles of equality laid down in 2018 (which we expect to bind future courts) succumbed to the changed political landscape of 2019. Changing public sentiment leading to the court ‘flip-flopping’ on outcomes is not new, and not always detrimental to the rights of citizens. For example, in 2013 the Indian Supreme Court refused to decriminalise consensual gay sex but five years later the court did decriminalise it. It is perfectly possible for future benches to disagree with past ones; however, the incremental nature of such change is essential to maintain the public trust that courts are insulated from the politics of the day. The casting in doubt of Sabarimala within a year, in the face of abject and consistent non-compliance with the judgement by the government and citizens, points to just how thin the court’s veneer of being insulated from public sentiment and deciding cases purely on legal principles is.
Plenty has been written on why the CAA is unconstitutional and should be struck down for violating Article 14 and its resultant jurisprudence (including here on this blog). However, the very idea that the court will apply the legal principles it has previously laid down is caveated by the court’s regular deviation from settled principles in the face of troubling ground realities or persistent public sentiment to the contrary.
The last assumption is that courts stand independent of the government and form the ultimate protectors of individual rights against state action. Historically, we have seen that this has not always been the case. As a matter of constitutional design, courts control neither the ‘sword nor the purse’. In other words, courts rely on the government to implement and abide by their decisions. The extent to which the government does so is a function of how much public legitimacy and authority the court wields at any given time. In a handful of jurisdictions, court have over centuries entrenched themselves to a point where non-compliance with their judgements is unthinkable and a government refusing to comply with a court judgement would risk being voted out of power by an electorate that deeply values the rule of law. For example, when the British Prime Minister’s advice to the Queen to suspend parliament was found to be unconstitutional by the U.K. Supreme Court, the question was not whether the Prime Minister would comply with the decision, but rather whether he would apologise to the Queen and British public.
In most jurisdictions however, where courts have not had the time or opportunity (or have squandered both) to create a deep sense of institutional credibility and win the public trust, courts are far more vulnerable to government interference. If a court were to repeatedly strike down government action, the government can register its discontent with the court in several ways. The most common (and visible) tactic is to delay/interfere with the process of judicial appointments. Right from Indira Gandhi’s appointment of A N Ray as Chief Justice (superseding the three senior most judges of the Supreme Court who had ruled against her government) to the current government’s delays in confirming judges, Indian courts have regularly been susceptible to government pressure over judicial appointments. The government may also refuse to provide funding and infrastructure for courts. At the extreme, the government can simply refuse to comply with or implement the judgements of the court. The Indian Home Minister’s recent suggestion that the non-implementation of Supreme Court judgements was an acceptable state of affairs runs dangerously close to an outright refusal to acknowledge the authority of the court. In such situations, courts must not only apply the law, but also balance the needs of the law with deference to the government to ensure the court’s continued survival as an institution.
Indian jurisprudence is replete with such deference. In 1975 when the Allahabad High Court found the then Prime Minister (Indira Gandhi) guilty of corrupt practices and invalidated her electoral victory, the government passed a constitutional amendment designed specifically to nullify the invalidation. In the Supreme Court, the constitutional amendments were struck down, but the Prime Minister’s election victory was upheld, allowing Indira Gandhi to remain in power. In Maneka Gandhi v the Union the petitioner’s passport was impounded, and no reasons provided. She approached the court contending that her right to a fair trial and to put forth her defence had been taken away. In a sweeping judgement, the court significantly expanded the scope and rigour of scrutiny, holding that procedure by which liberties are infringed must be ‘fair, reasonable and just’. However, rather than invalidate the order impounding of the passport or the provisions of the Passport Act, the court took on record the Attorney General’s assurance that the government would ‘consider’ the court’s observations and left the matter to the government. Ironically, the last paragraph of Maneka Gandhi (widely touted as a high watermark of Indian human rights jurisprudence) reads:
“The Attorney General assured us that all the grounds urged before us by the petitioner and the grounds that may be urged before the authority will be properly considered by the authority and appropriate orders passed. In the result, I hold that the petitioner is not entitled to any of the fundamental rights enumerated-in Article 19 of the Constitution and that the Passport Act complies with the requirements of Art. 21 of the Constitution and is in accordance with the procedure established by law.”
The Chief Justice’s recent refusal to pass directions for the entry of women at Sabarimala stems in part from the fact that both the Kerala Government and Central Government have indicated their unwillingness to carry out such directions. An order directing the authorities to enforce the judgement would likely be ignored by both governments, triggering a constitutional crisis.
The present day
Having understood that while not entirely independent, the court is undoubtedly uniquely situated, let us examine the court’s recent decisions where the stakes for the government were particularly high. In its Aadhar judgement, the court upheld the government’s collection and use of bio-metric data as part of the Aadhar scheme. The court in 2018 also held the Aadhar Act was correctly certified by the Speaker as a money bill (meaning it was not subject to scrutiny by the Rajya Sabha). But a year later in Rodger Matthew v South Indian Bank the court held that the Aadhar judgement’s reasoning on the issue of money bill was “arguably liberal [in favour of the government]” and “not convincingly reasoned”. The question of how future courts should construe money bills has been referred to a larger bench but peel away the Supreme Court’s strategic antics and the decision in Rodger Matthews is a damming admission that the Aadhar Act was unconstitutional but still upheld by the court.
The Supreme Court’s treatment of the petitions challenging the internet shutdown and detentions in Kashmir and the amendment of Article 370 has been the clearest example of the court’s deference to the government of the day. On 16 September 2019 the court passed an order (analysed here) which didn’t require the government to disclose the legal source of the internet shutdown and left it to the unrestricted discretion of the government to make “endeavours” to restore “normal life”. On 16 December 2019 the internet shutdown in Kashmir entered its 134th day, the longest ever recorded in a democracy. At the time of writing this post, the court is yet to adjudicate on the constitutionality of the internet shut down and the hearings challenging the actual amendment of Article 370 have just taken off.
Recall that vulnerable courts are often called upon to balance the meaning of the law with ensuring a working relationship with the government. After 70 years of democratic constitutionalism, our courts are certainly robust enough to avoid obliteration at the hands of the government. They regularly strike down state and central government actions found to be violative of the Constitution. However, with cases such as Aadhar, Sabarimala, the CAA and Kashmir, where the political stakes for the government are exceptionally high, cracks begin to emerge in the court’s multi-faceted balancing act between the law, public sentiment and deference to the government. In ADM Jabalpur the court compromised its fidelity to the integrity of the law and allowed the government a free reign in return for its continued survival (the supersession of Justice Khanna and the regular transfer of ‘non-complaint’ High Court judges by the government is telling in this regard). Today’s court is neither willing to expressly compromise its intellectual fidelity to the law nor its necessary relationship with the government – and so it sits on the fence, hoping that nobody will notice. The court does not trust its institutional legitimacy is strong enough to rule against the government on politically sensitive matters and continue to maintain a working relationship with the government (the government is equally to blame for this lack of trust). While it also refuses to expressly abandon its fidelity to the integrity of the law (as it did in ADM Jabalpur) and provide express judicial acquiescence of the government’s actions, its refusal to act is fast achieving a similar result indirectly.
Recognising that the central assumptions held about courts as counter-majoritarian institutions are flawed is the first step towards understanding the actions of the Supreme Court recently. The court undoubtedly analyses and applies legal principles on a day to day basis. However, in deciding constitutional cases with high political stakes, courts also consider the impact the decision will have on the government (Aadhaar and Kashmir), the prevailing public sentiment of the day, and the impact on the ground (Sabarimala). Absent any enforcement powers, the court’s is as bold as it thinks the government and people will allow it to be.
In deciding the host of thorny issues on its plate in 2020, the Supreme Court is likely to consider the prevailing public sentiment, strive to maintain a working relationship with the government, and lay down some important law. While the court’s legal questions will be answered by a handful of lawyers in Courtroom 1, the question of how strictly the court will apply the law to fulfil its constitutional role as a meaningful check on government power will be answered by every other Indian. This calls for renewed scrutiny of the court’s actions that denude the legitimacy of its decision making process (some examples include the use of sealed covers, the (mis)use of the master of the roster role, a flawed appointment process and the regular overriding of High Courts). Such actions not only violate core legal norms, but also reduce the public trust in the institution, reducing its institutional authority to act as a check on government power. Understanding the limitations of courts also highlights the need to strengthen the accountability and contestation within other wings of government beginning with our electoral and parliamentary processes.
In a previous post, we discussed one of the peculiar features of the ongoing litigation regarding the communications shut-down and other restrictions in Kashmir. One of these features is the absence – in court – of the government’s orders that constitute the basis for the restrictions (whether under the Telecom Suspension Rules or Section 144 of the CrPC). As we discussed, one of the basic requirements for a restriction upon fundamental rights is the existence of a law, and its publication (i.e., the law being made available to the citizens whose freedoms it seeks to restrict). There can be no restriction of fundamental rights in the absence of law, or on the basis of secret laws.
In the hearing of 16th October, this question was (finally) put to the State by the Supreme Court Justices. It is reported that Solicitor-General Tushar Mehta stated that he had no objection to showing the orders to the Court, but considerations of national security may require him to withhold them from the petitioners – and that the petitioners had no “right” to claim access to the orders. Accordingly, the Court’s Order records that if the Solicitor-General wants to claim “privilege” over the orders, then the Court “requests him to file an affidavit indicating the reasons for claiming such privilege.”
While we wait for the government’s affidavit, it is important to note that what is at stake here is a creeping expansion of the “sealed cover”, which we have seen so often in recent times. It is also important to note that it is entirely unjustifiable: executive orders – passed under cover of law – restricting rights of citizens are not and cannot be subject to legal privilege, or submitted to the Court in a sealed cover.
At one level, it is questionable whether a legal order revealed only to the Court, and hidden from citizen, counts as “publication” in the relevant sense. But there is a more basic reason why this is unconstitutional. If I – as a citizen – do not have access to the legal order that purports to restrict my rights, I have no effective way of challenging it in Court and demonstrating it to be unconstitutional. I cannot show that it is disproportionate and fails the reasonableness standard under Article 19(2). What this means, in turn, is that effectively, that I have no remedy to enforce my fundamental rights. And a right without a remedy is, of course meaningless.
Effectively, therefore, denying the order on the basis of which rights are infringed amounts to a suspension of the rights themselves. As explained in a previous post, this can only be done – and that too, partially – through a formal declaration of Emergency; in other words, the government’s arguments are entirely based upon the logic of an Emergency, without the courtesy of a formal declaration of Emergency.
It is important to remember the last time the contrary argument was made. The last time it was made – unsurprisingly – was in ADM Jabalpur. There, the argument made on behalf of the detenus was that the suspension of the right to move the Court to enforce habeas corpus amounted to the denudation of Article 21 itself. To this, the Court said that the mere fact that you could not move the Court did not mean that the rights ceased to exist – it just meant that you had no way of enforcing them. But if ADM Jablpur has been buried “ten fathoms deep” by Puttaswamy, then surely there is no remaining scope for the Government, in 2019, to make this argument.
Consequently, therefore, no “affidavit” can justify keeping the communications suspension and S. 144 orders secret, and there is no justification for handing them over to the Court in a “sealed cover”. They must be made disclosed, and not only to the petitioners, but to the general public, so that affected parties are in a position to seek remedies before the courts of law. Any other outcome would only amount to a justification of the logic of Emergency.
(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.”
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).
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.
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.
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.”
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.”
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.
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.
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.
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.
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 SpecialProvisions. 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:
The authority of Indian Parliament to make laws could be extended to Jammu and Kashmir by enacting a Presidential Declaration. In relation to the three specified subjects in the Instrument of Accession, the President could pass this declaration after consulting the State Government, and in all other legislative subjects after obtaining the consent (“concurrence”) of the State Government.
Indian constitutional provisions (other than Article 1 and Article 370 which were applied by the Article itself) along with exceptions and modifications could be applied to Jammu and Kashmir by Presidential Orders, again with the consultation of the State Government in relation to the three specified subjects, and their consent in all other cases.
Article 370 itself could be revoked in whole or part, or modified only by Presidential notification based on a recommendation of the Jammu and Kashmir Constituent Assembly.
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. Subsequentjudgmentsof theSupreme 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.
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:
It over-rules the Constitutional Order of 1954 (The Basic Order) and all its amendments;
It applies all the provisions of the Indian Constitution to Jammu and Kashmir;
It amends Article 367, which is the Interpretation provision of the Indian Constitution, designed to help resolve ambiguities in meaning. A newly inserted clause, Article 367(4), states that as applied to Jammu and Kashmir (a) The words “this constitution” will mean “this constitution as applied to Jammu and Kashmir”
(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.”
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.
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.
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.
Two stances have been taken by those who believe in the unconstitutionality of the Presidential Order amending Article 370. First, that Article 370 can be abrogated, but only through a constitutional amendment or the people’s consent. The presidential order is problematic because it does indirectly cannot be done directly; therefore is a colourable exercise of power. The Second stance is one which relies on the work of AG Noorani and the Constitutional Assembly debates to take a strictly textual view that the Constituent Assembly being dissolved, no authority executive can exercise the power conferred on the Constituent Assembly to decide on Article 370.
The commonality in both these approaches is that the Kashmir issue should not be decided by the executive unilaterally, and by a colourable exercise of power. However, two cases of the Supreme Court pose a direct challenge to these ways of thinking. In this post I will deal with these two cases and show how they are inapplicable to the present issue, or deserve to be overruled or distinguished. In so doing, I will rely on implied constitutional limitations and build a case for the unconstitutionality of the Presidential Order.
In Sampat Prakash, the petitioner had challenged the non-application of Part III of the Constitution to Kashmir’s Preventive Detention laws. The modified Constitution of India as applicable to Kashmir had, vide Article 35C, excluded such application to Preventive Detention laws. The petitioner submitted that the delegation of power to the President to amend and modify the Constitution as applied to Kashmir could not be construed so broadly as to take away fundamental rights. The court however disagreed, giving wide power to the President.
“We are, therefore, ‘of opinion that in the context of the Constitution we must give the widest effect to the meaning of the word “modification” used in Art. 370(1) and in that sense it includes an amendment. There is no reason to limit the word “modifications” as used in Art. 370(1) only to such modifications as do not make any “radical transformation.”
Sampat Prakash was reiterating the position of law already set out in Puran Lal Lakhanpal v. State of J and K, which had held that indirect election(as opposed to a direct election in rest of India) to the Lok Sabha from the state of Jammu and Kashmir could be effected through Article 370(1). Notice that the ratio of both these cases, read broadly, proposes that the power to modify the Constitution of India as applicable to Kashmir, has no boundaries/guidelines. Is this power to legislate given to the executive to be completely unhindered? As pointed out in this blog the text of Article 370 itself provides that it cannot be used to amend itself. However, I will argue that there is a more crucial implied limitation on this exercise of the President’s power.
Consider, for example, Samatha v. State of AP, where the Supreme Court held that a legislative power to the constitutional executive (Governor in that case) to ‘modify, amend and regulate’ laws had some implied limitations. The question was whether 5(2) (a) of the Fifth Schedule, which provided that the governor could ‘regulate’ allotment of land to STs in Scheduled Areas, could be used to give away tribal land to non-tribals. The fifth schedule allows the governor to modify laws as applicable to the Scheduled Areas of the state and regulate the allotment of land in these Scheduled Areas. The court held that a perusal of the rest of the schedule made it clear that the intention of the framers behind the Fifth Schedule was to prohibit devolution of land to non-tribals. Marshalling Constitutional history of special protection to tribal community and Constituent Assembly debates, the court read into the fifth schedule an implied limitation thus:
“In the light of the provisions contained in clause (a) of sub-para (2) of para 5, there is implied prohibition on the State’s power of allotment of its land to non-tribals in the Scheduled Areas.”
that Article 370 of the Constitution similarly gives the President to alter and
modify the Constitution as applicable to the State of J and K. The text of Article 370 shows that the President is
to merely legislate on what this special status would look like. Each clause
gives the sense that the final word shall be of the people of J and K. Article 370(2) actually envisions laying
all decisions before the Constituent Assembly of Kashmir A perusal of Article 370 should make it
clear that it seeks to preserve the ‘consent’ of the people of Kashmir. The Constitution Assembly debates of N
Gopal Ayyangar show as
much. This puts an implied check on the President’s amending power by making it
contingent on the consent of the people of Kashmir. Even though the Constituent
Assembly of Kashmir has been dissolved, the centrality of consent in the
provision should be an implied limitation. Thus it is best to confine the ratio
of Sampat Prakash that ‘radical transformation’ is possible to the facts of
the present order does it two things. Firstly, it overrules all prior
Presidential orders made under Article 370(1), thereby effectively ending the
special status of Kashmir. Secondly, it does this without any sliver of people
consent. Thus it violates the implied limitation of consent inherent in Article
1965, the office of the indirectly elected Sadr-e-Riyasat was replaced with the
office of the Governor, who was to be unelected, vide an amendment in the J and
K Constitution. The amendment was made by the Sadr-e-Riyasat, who had the power
to amend the Constitution of J and K. The Presidential order giving effect to
this added a ‘legal fiction’ clause in Article 367 that ‘Sadr-e-Riyasat’ was to
be read as ‘Governor’. Notice that similar to the present presidential order,
it sought to indirectly amend Article 370. The 1965 amendment has been
dismissed as ‘clarificatory’ i.e. merely giving effect to a legal fact. The
court also held similarly:
as we have already said, the explanation had become otiose and references to
the Sadr-i-Riyasat in other parts of the Constitution had also become otiose. There were two alternatives; first,
either to leave the courts to interpret the words Government of the State”
and give it its legal meaning, or secondly, to give the legal meaning in the
definition clause. What has been done is that by adding cls. (aa) and (b) a
definition is supplied which the Courts would have in any event given.
Therefore, we do not agree that there has been any amendment of art. 370(1) by
dismissing this amendment as clarificatory does not engage with a crucial idea.
The post of the Sadr-e-Riyasat was an indirectly elected post, which was done
away by an amendment made by the Sadr-e-Riyasat himself. Can an elected post
which carried with it the power to amend the J and K constitution be replaced
with an appointed one, that too through a presidential order? Thus the
amendment was more not just clarificatory and changed the elective nature of
the office as provided for in both the original Indian and the J and K Constitution.
The distinction between the power to amend the constitution i.e. ‘constituent’ power and ‘legislative power’ must have been known to the court when Damnoo was decided. Both Shankari Prasad(1951) and Sajjan Singh(1965) had sufficiently delineated the difference, but had held that Parliament’s constituent power to amend the constitution had no implied limitation. But this concept had been thrown into disarray after the Golak Nath case, which held that amendments were ‘law’ under Article 13, and that the Indian Constitution did not envision any separate ‘constituent power’. J. Hidayatullah went to the extent of saying: ‘What then is the real distinction between ordinary law and the law made in the exercise of constituent power? I would say under the scheme of our Constitution none at all.’ Given this doctrinal muddle and the subsequent 24th Amendment, the court in Damnoo must have trod safely in not relying on any of those cases, or even entering such a discussion.
It was only in that in 1973, that Kesavananda Bharati developed fully and clarified the difference between constituent power and constituted power. The parliament exercised constituent power under Art. 368 subject to some implied limitation that it cannot ‘destroy basic features of the original constitution. A better way of distinguishing Damnoo, then, is not to say that it was ‘clarificatory’, but to say that it needs to be overruled in light of the sufficient clarity we now have about this crucial idea of sovereignty. The constituent power of the people of Kashmir and the people of India cannot be said to have been overruled, by a presidential order or an amendment in the J and K constitution. As the court has held in Kihoto Holohan and Kuldip Nayar, the democratic nature of offices is a basic feature which cannot be taken away not even by amendment, let alone executive dictats. To that end, Damnoo deserves not just to be distinguished, but to be overruled. In fact the High Court of J and K has observed that the 1965 amendment violates the basic features of democratic election and the constituent power of the people of Kashmir (in Para 24). But it shied away from declaring it unconstitutional, as that was not the issue before it.
That leads us to this Presidential order. Here similarly, the constituent power of the people of Kashmir in granting themselves autonomy has been frustrated by a Presidential order. The only tokenistic concurrence provided here is by the Governor of the state, who himself operates ‘during the pleasure of the President’. The distinction between representative, constituted and constituent power as given in Kesavananda Bharati should guard us against changing Article 370 through a presidential order.
I have shown how the two cases which are cited in favour of Article 370 need to be overruled or distinguished in light of subsequent jurisprudential clarity about implied limitations in the constitution.
Clause 1(d) of Article 370 has been used to pass over 45 Presidential Orders to modify and progressively expand the powers of the Central Government with respect to Jammu and Kashmir since 1950. It is true that in State Bank of India v. Santosh Gupta, the Supreme Court noted that the marginal note stipulating that Article 370 is “temporary” has lost its meaning due to the dictum in Sampat Prakash v. State of Jammu and Kashmir. However, the implications of these judgments are not as consequential as they have been made out to be. As stated by Nariman J. in Santosh Gupta,the implication is simply that despite Article 370(3) reading “Constituent Assembly of the State”, the article will not cease to operate upon the dissolution of the Constituent Assembly, which happened in 1957. Therefore, the logical deduction is that despite the dissolution of the Constituent Assembly of Jammu and Kashmir, the procedure under Article 370 can still be used to issue Presidential Orders. Consequently, the Order of 2019 is an exercise of constitutionally valid powers to pass an order of a similar nature to those before it, as it “supersedes” the previous orders and makes applicable to Jammu and Kashmir all parts of the Constitution that were previously inapplicable, without exception.
In the same vein, it has been argued that the procedure under clause 3 has not been followed, which requires the recommendation of the “Constituent Assembly of the State” prior to such promulgation. Undoubtedly, since 1957 the State Assembly, which has been given autonomy in certain matters, is the Constituent Assembly. This is evident from a bare reading of Section 147(1) of the Constitution of Jammu and Kashmir, which vests the legislative assembly with the constituent power of amendments. The Supreme Court in Santosh Gupta (para 10) followed this logic while declaring that after the dissolution of the Constituent Assembly, an order under Article 370(3) can be made with the concurrence of the “State Government”. This must be seen in consonance with the Presidential Order of 1954 extending Emergency Provisions under Articles 356 and 357 of the Constitution of India to Jammu and Kashmir.
Furthermore, unlike other States, President’s Rule under Article 356 runs concurrently with Governor’s Rule under Section 92 of the Constitution of Jammu and Kashmir. This is important as Section 92 allows for far more expansive powers to the Governor: under Section 92(1)(a), the Governor may assume to himself all or any of the functions of the Government of the State. This action is not only legally justifiable but also has precedent: in 1986, then Governor of Jammu and Kashmir, Jagmohan, approved an order extending Article 249 of the Constitution of India to the State. This suggests that scheme of Governor’s Rule is unique and incomparable to other provisions of the Constitution, such as those concerning promulgation of ordinances. In sum, while the Assembly is in suspended animation, the Governor alone is embodied with the powers of the Constituent Assembly of Jammu and Kashmir. Hence, as the 2019 Order correctly notes, it is made “with the concurrence of the Government of Jammu and Kashmir.”
Insofar as the
Additionally, Article 370 has not been used to either abrogate or amend itself. The provision provides for the President to modify any part of the Constitution for the purpose of an order issued under it, and in furtherance of such power, the 2019 Order amends Article 367. However, it is incorrect to suggest that Article 370 cannot be used to amend itself. Clause 1(c) talks of the applicability of Articles 1 and 370 to Jammu and Kashmir irrespective of any Presidential Order and Clause 1(d) makes other parts of the Constitution of India applicable only after the promulgation of such Orders.
In any case, these two forms of application of constitutional provisions in no way imply Article 370 cannot be used to modify itself. As noted by the judgment in Santosh Gupta, the powers “modify” under Article 370(1) have to be given “the widest possible amplitude” and not a restrictive meaning (¶ 14). This would imply that the President by order would also have the power to amend Article 370 itself. . Sub-Clause (3) of Article 370, which applies “notwithstanding” anything in the foregoing provisions expressly notes that
As for the delimitation and central administration, the sequitur follows. Once the whole Constitution is validly and equally made applicable to Jammu and Kashmir, Articles 2 and 3, without any privileges are also applicable. This implies that an Act of Parliament can modify the boundaries and separate an existing State. There does exist a provision for the expression of opinions by the concerned State’s government but there is nothing to suggest that the same was not done in the present case for the reason stated above.
Strangely, there has been some intensely revived citation of the Instrument of Accession signed by Hari Singh to suggest that there has been a violation of trust. This is incorrect as the Instrument, for this purpose, itself gave way to the Constitution of Jammu and Kashmir, which declared it an integral part of the Union of India unconditionally and progressively allowed for an expansion of the role of the Union in the region. This instrument is not very different from those signed by Junagarh, Hyderabad and the other Princely States. This is important because similar arguments on “violation of trust” were given by those vested interests who benefitted by measures such as privy purses amongst other patently undemocratic and discriminatory privileges. These have since been emphatically rejected.