Guest Post: Preventive Detention and the Dangers of Volcanic, Ever-Proximate, Ideologies

[Editorial Note: On 8th February, I hd written this blog post, about the judgment of the Jammu and Kashmir High Court upholding the administrative detention of Mian Abdool Qayoom, the 76-year old President of the Jammu and Kashmir Bar Association. In that post, I had pointed out that the High Court’s quotation of a line spoken by the Greek King Menelaus, in Sophocles’ play Ajax (itself copied without attribution from a prior judgment by Dipak Misra J) was unwittingly revealing: it demonstrated how Qayoom’s detention could not be justified under any framework of legal or constitutional reasoning, but only by an appeal to the brute power of arms (sticking with classical Greece, as the Athenians would say, “the strong do what they can and the weak suffer what they must.”)

At that time, it was difficult to imagine a future judgment of this High Court sinking even lower; but when the bottom is an abyss, it seems there is no limit to just how low you can go. A judgment by a division bench of the J&K High Court – also involving Qayoom’s detention (now approaching its tenth month, without trial) has achieved the spectacular feat of besting even the February judgment’s Greek fantasies in its intemperate language, its partisanship, its ignorance of basic constitutional principles, and its desire to defeat all other comers in achieving a swift and seamless merger of the judiciary with the executive. This is a guest post by Abhinav Sekhri, analysing it (cross-posted from the Proof of Guilt Blog. – G.B.]


81. As mentioned in para 37 of this judgment, while addressing his arguments on the ideology nourished and nurtured by the detenue, the learned Advocate General submitted that such ideology cannot be confined or limited to time to qualify it to be called stale or fresh or proximate, unless, of course, the person concerned declares and establishes by conduct and expression that he has shunned the ideology (emphasis supplied in original).

82. In light of the above legally rightful and sound argument taken by the learned Advocate General, we leave it to the detenue to decide whether he would wish to take advantage of the stand of the learned Advocate General and make a representation to the concerned authorities to abide by it. … (emphasis mine)

[Extract from Mian Abdool Qayoom v. Union Territory of J&K & Ors., LPA No.28/2020, decided on 28.05.2020]

This exchange is not part of the judgment of the Jammu & Kashmir High Court dismissing Mian Abdool Qayoom’s appeal against a Single Judge order that had rejected his challenge to order condemning him to preventive detention under the Public Safety Act. Instead, it is part of the order dismissing an application seeking Qayoom’s temporary release from Tihar Jail due to Covid-19. The High Court unequivocally supported requiring an oath of loyalty as a condition for releasing a 76-year-old diabetic detenu who is on surviving one kidney during a pandemic which has placed him under high risk.

A preventive detention order against political dissidents is not new for India, and certainly not new for Jammu and Kashmir. It is telling that one of the last judgments of the Federal Court, passed six days before the Constitution came into force, was one which upheld the preventive detention of Machindar Shivaji Mahar, mainly because he was a member of the Communist Party which advocated for armed revolution. Then as now, judges held that actively supporting violent ideologies can make it likely that the person will act in a manner prejudicial to public order.

The cynic would argue, then, that we never left the place which the Jammu & Kashmir High Court shows us in Qayoom’s appeal. The cynic is mistaken, because in between we gave to ourselves a Constitution, which ensured persons like Machindar Shivaji had a fairer process governing preventive detentions than what might have been granted under the erstwhile laws (processes which now apply to the Union Territory of Jammu & Kashmir). On top of this, the Indian Supreme Court has tried to enhance the fairness of these procedures over seventy years.

Even if the record of the Supreme Court on preventive detention is largely regrettable on the whole, there are times when one gets a glimpse of what justice looks like in a system where executive discretion is strongly tested by vigilant courts on the anvil of fundamental rights. It was one such moment in 1979 which saw the Supreme Court quash the detention orders of Mohd. Yousuf [(1979) 4 SCC 370], passed by the then State Government of J&K. A detention order passed against this “Die Hard Naxalite” was methodically taken apart by the bench and shown for what it was: An executive act based on vague and irrelevant grounds that could not deprive any person of her constitutionally reified right to personal liberty.

Mian Abdool Qayoom’s continued detention by virtue of the J&K High Court judgment is, I would argue, antithetical to the kind of justice shown in Mohd. Yousuf, where a court adopted a critical lens to executive determination without substituting its own judgment. Here, illegal grounds in Qayoom’s detention order are justified as being “clumsy”, and then the Court jumps in to fill the gaps despite proclaiming an inability to step into the shoes of the district magistrate authorising detention.

This is nowhere more apparent than the remarkable excursus about the relevance of ideology while considering preventive detention. The High Court goes much beyond a simple argument of allowing the police to consider a prior record to justify need for urgent preventive actions. It also goes beyond Machindar Shivaji and permits reference to activities of one’s political party as a basis to consider risks to public order. Instead, it suggests the authorities have legitimate grounds to detain persons for years without trial, based on their “ideology”.

48. Having considered the matter, we may say that an ideology of the nature reflected in the FIRs and alleged against the detenue herein is like a live volcano. The ideology has always an inclination, a natural tendency to behave in a particular way; It is often associated with an intense, natural inclination and preference of the person to behave in the way his ideology drives him to achieve his latent and expressed objectives and when he happens to head or leading a group, as the allegations contained in the FIRs suggest, his single point agenda remains that his ideology is imbued in all those whom he leads. … Generally, when a criminal act takes place, its impact may be felt within a small circle or its repercussions may be of bigger consequence, but with the passage of time the impact and the consequences generally subside or vanish. When it comes to propensity of an ideology of the nature reflected in the FIRs supported by the intelligence reports we have gone through, we are convinced that it subserves the latent motive to thrive on public disorder. In that context, we feel that most of the judgments of the Apex Court do not fit the facts and the given situation.

Therefore, we are left with no option but to say that an ideology that has the effect and potential of nurturing a tendency of disturbance in public order, such as is reflected in the FIRs registered against the detenue in the instant case, and of which the detaining authority is reasonably satisfied, can be said to be different from a criminal act or acts done sometime in the past and, therefore, would always continue to be proximate in their impact and consequence and, therefore, would not attract the judgments cited at the Bar on the point. … Furthermore, we are also of the view that such an ideology alleged against a person, if mentioned in the earlier grounds of detention, because of its nature of subsistence and propensity, would not lose its proximity and, therefore, can be taken into account and used for detaining such person subsequently if the detaining authority is satisfied that such an ideology of the person has the potential to goad or instigate disturbance in public order, in a susceptible given situation, like the one it was at the relevant point of time. … (emphasis mine)”

 

Let us take a moment to understand the significance of this rhetoric. Preventive detention powers are conferred upon executive officers to prevent certain kinds of danger by detaining a person without trial. While courts cannot review the officers’ subjective satisfaction of the facts requiring detention, there are some judicial checks in place. To ensure that this discretionary power is not beholden to an officer’s arbitrary prejudices and remains justiciable, the law requires that each detention order be backed by reasonable, relevant, and germane grounds which explain why detention was urgently necessary, which must be expressed clearly to enable a detenu to make an effective representation against the orders.

Requiring clear, germane, and proximate reasons meant that executive officers had to cite some instances of illegal / suspicious conduct as overt manifestations of any ideology which they considered prejudicial to public order — i.e., to flesh out an inherently vague notion. What the J&K High Court has done is taken this close connexion between objective real-world anchors for a subjective concept like ideology, and treated it to serious social distancing. Into the resulting gap falls judicial review of preventive detention. Ideology now becomes a blank cheque to be encashed by the executive whenever the circumstances suggest that its “volcano-like” qualities can prove detrimental to the public order; no matter that the most recent overt display of this purported ideology dates back several years. By no longer requiring the executive officer’s subjective satisfaction to have a proximate real-world anchor, judicial review is nearly reduced to its pre-1970s avatar of only checking if procedures are complied with.

The J&K High Court has, seemingly unwittingly, shown us a system that runs on punishing thoughts and beliefs. Only, here, we have no punishment with a trial and courts, but prevention, with the executive serving as judge, jury, and executioner. The only conduct “legally rightful” and sufficiently redemptive to erase the marks of a dissident ideology is an oath of loyalty, and its perpetual performance, subject to the satisfaction of the same authorities.

This time, too, shall pass.

Guest Post: An Executive Court and a Judicial Committee: The Supreme Court’s Decisions on the Internet Restrictions in Kashmir

[This is a guest post by Chintan Chandrachud, on the Supreme Court’s decision in the 4G Internet case. Mihir’s analysis of the judgment on this blog can be found here.]


On 11 May, the Supreme Court issued its decision in a case challenging the restriction on mobile internet speed in Jammu and Kashmir. The Court neither decided whether the restriction was unconstitutional nor issued a remedy. Instead, it referred the matter to a three member special committee. The Supreme Court’s decision on 11 May was a sequel to its decision of 10 January 2020. At 149 pages collectively, the Court’s decisions are relatively brief by its standards. However, they are far more revealing about the role of the Court than many other decisions of greater length and complexity.

On 4 August 2019, mobile phone networks, internet connectivity and landlines were disabled in large parts of Jammu and Kashmir, in anticipation of the constitutional changes that would follow. (As is well known, these “virtual” restrictions – frequently described as the “communications lockdown” – were also accompanied by restrictions on physical movement, with several political leaders being placed under house arrest.) The communications lockdown was imposed under the Temporary Suspension of Telecom Services Rules (“Suspension Rules”), which enable the central or state government to suspend telecom services when there is a public emergency or a risk to public safety. The Suspension Rules included a mechanism for solitary review (rather than periodic review) of suspension orders. A committee of three bureaucrats would meet once, within five days of the relevant suspension order, to determine if it was appropriate.

In its decision of 10 January, the Court addressed the question of whether the suspension orders that had been passed since 4 August 2019 – which were the pieces of the puzzle constituting the communications lockdown – were unconstitutional. In arriving at its decision, the Court prescribed a series of important principles. Even though the Suspension Rules did not specifically require their publication, the Court held that suspension orders should be published going forward. It replaced the solitary review mechanism with a periodic review mechanism – in which the review committee would be required to meet every seven days to assess the appropriateness of suspension orders. The Court also concluded that blanket suspension orders (either in terms of the duration of time for which they applied or in terms of their geographic application) would not be constitutionally permissible. However, the Supreme Court failed to decide the most important issue – whether the suspension orders were constitutionally invalid and should be set aside. This was nothing short of an abdication of responsibility. It is no coincidence that the right that guarantees direct access to the Supreme Court when fundamental rights are violated refers to “remedies for enforcement of rights”. The Court may have recognised the rights at stake, but failed to enforce them and award a remedy.

Following the Court’s decision, a review committee of three state-level bureaucrats met periodically to consider fresh suspension orders that gradually narrowed the scope of the lockdown. Fixed-line internet connectivity was restored (first for essential services and hospitals, later for software companies, and ultimately more widely). Access to social media websites was gradually reinstated. However, elements of the thirteen suspension orders passed between the Supreme Court’s decisions of January and May seemed vulnerable to constitutional scrutiny. For example, between 14 January and 4 March, the suspension orders imposed a “white-listing” regime, under which only specifically white-listed websites could be accessed through the internet. This resulted in some arbitrary inclusions and exclusions, and an abandonment of the basic principles of net neutrality. In addition, mobile internet has continued to remain restricted to 2G speeds, well below the 4G speeds that would otherwise be available.

The restriction on speed of mobile internet was addressed in the Supreme Court’s judgment of 11 May. It is easy to typecast this as a narrow restriction (slow internet versus fast internet). Examined more closely, however, this is a question of access rather than speed. Imagine using applications designed for 2020 on a mobile internet connection that is in healthy competition with dial-up internet of the 1990s. The constitutional challenge was framed with a focus on the impact of the restriction. It was argued that the restriction hindered doctors and the general public from accessing information on COVID-19, and students from accessing educational material and literature when classes in physical classrooms were not taking place. The government argued that the restriction was in the interests of national security, and was directed towards reducing misuse of the internet by terrorists and militants.

In what was virtually an action replay of its decision in January, the Supreme Court refused to determine the constitutional validity of the restriction. Even if the decision of 10 January were to be justified on the basis that the Court established a new periodic review mechanism which would consider the appropriateness of suspension orders going forward, that rationale was now no longer available. The restriction that was challenged was a product of the new review mechanism, and the Court was tasked with determining if it was unconstitutional. Instead of doing so, the Court set up yet another review committee – this time consisting of a combination of national and state level bureaucrats – to “examine the contentions” of the parties and determine whether the restriction is appropriate. To be sure, the Court did not ask the committee to report back to it with its analysis. The petitions have been disposed of, and it is the committee that will be deciding the propriety of the restriction. To state the obvious, the Court has delegated its sacrosanct obligation of determining the constitutionality of executive action to the executive.

Equally disconcerting as the Supreme Court’s delegation of authority, however, is its assumption of responsibility. The Court opens its judgments of 10 January and 11 May with the surprising observation that it is the Court’s role to strike a “balance” between “liberty and security”. It is easy to understand why any Court would veer towards security over liberty when the question is framed in this way. However, this framing is at odds with the Court’s role as an independent decision-maker. Neither proportionality nor reasonableness review requires the Court to be saddled with the responsibility of “striking a balance” between liberty and security. That is plainly the job of a democratically elected government. The Court’s role is simply to determine, applying the principles articulated in its 10 January decision, whether the balance that has already been struck by the government is constitutionally permissible.

If the Supreme Court is once again called upon to determine the constitutionality of the restrictions on communication, it should not only take back the adjudicative mantle, but also hand over the executive one.

The Supreme Court’s 4G Internet Order: Evasion by Abnegation

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


Evasion by Abnegation: A new facet of the Doctrine of Judicial Evasion?

This blog has often spoken of judicial evasion. However, the Supreme Court today demonstrated that the discussion thus far had missed out a very important strand of the doctrine of judicial evasion. Whether it be electoral bonds or federalism, judicial evasion till now appeared to be “Not Now” version, i.e. not deciding issues until it was too late for the outcome to matter. The Supreme Court today shows us in its order disposing of FMP v UT of J&K and anr. (“Order”) that an even more potent version is the “Not Us” version: i.e. not simply Evasion by Adjournment, but rather, Evasion by Abnegation. In a writ petition pertaining to the validity of restrictions on 4G in Jammu & Kashmir, the Court held:

A perusal of the submissions made before us and the material placed on record indicate that the submissions of the Petitioners, in normal circumstances, merit consideration. However, the compelling circumstances of cross border terrorism in the Union Territory of Jammu and Kashmir, at present, cannot be ignored…

 We, therefore, find it appropriate to constitute a Special Committee comprising of the following Secretaries at national, as well as State, level to look into the prevailing circumstances and immediately determine the necessity of the continuation of the restrictions…

 The Special Committee is directed to examine the contentions of, and the material placed herein by, the Petitioners as well as the Respondents. The aforesaid Committee must also examine the appropriateness of the alternatives suggested by the Petitioners, regarding limiting the restrictions to those areas where it is necessary and the allowing of faster internet (3G or 4G) on a trial basis over certain geographical areas and advise the Respondent No. 1 regarding the same, in terms of our earlier directions.

In substance, what the Court appears to have held is that the contentions of the Petitioner were to be adjudicated not by the Court, but by the “Special Committee” constituted by the Court, consisting of the Home Secretary and Secretary, Communications (of the Central Government) and the Chief Secretary of the UT of Jammu & Kashmir. With great respect, it is submitted that it is difficult to reconcile the Order of the Supreme Court with the language of Article 32 of the Constitution of India. Article 32 says:

The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed…

 The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.

This Article has not at all been adverted to by the Supreme Court. It is respectfully submitted that given the existence of the fundamental right to judicial remedies, the most powerful court in the world is duty-bound to consider exercising its jurisdiction under Article 32. It is not competent for the Court to hold that some other body – especially one consisting of Secretaries of the very Departments whose orders are in question – should consider the contentions of the Petitioner and the “appropriateness of the alternatives”.

It was incumbent on the Court to itself consider the relevant materials; and adjudicate – one way or the other – on the validity of the challenged measures. In doing so, the Court would of course have had to consider how much deference to give to executive assessments in matters of national security and what the standards of judicial review should be. It would then have been possible – whatever the Court ultimately decided – to consider and analyse the reasoning of the Court. However, “deference” cannot amount to “abnegation”; and the tenor of the Court’s order indicates that the Court was not simply “deferring” to an executive assessment of the facts, but was effectively ceding jurisdiction to decide issues of constitutional law. In State of West Bengal v Committee for the Protection of Democratic Rights, a Constitution Bench of the Supreme Court held:

In view of the constitutional scheme and the jurisdiction conferred on this Court under Article 32 and on the High Courts under Article 226 of the Constitution the power of judicial review being an integral part of the basic structure of the Constitution, no Act of Parliament can exclude or curtail the powers of the constitutional courts with regard to the enforcement of fundamental rights. As a matter of fact, such a power is essential to give practicable content to the objectives of the Constitution embodied in Part III and other parts of the Constitution…

With great respect, the Order does not take into account the significance of this position.

The Zamora and Deference

In the Order, what the Court has essentially held is that due to “compelling circumstances of cross-border terrorism”, the Supreme Court must refuse to exercise jurisdiction under Article 32. In substance, then, the fundamental right under Article 32 (which is not simply a right to have some remedy, but a right to a judicial remedy before the Supreme Court) is a dead letter, in view of “compelling circumstances of cross-border terrorism”. Given that the right under Article 32 cannot be suspended “except as otherwise provided for by this Constitution”, the Order demonstrates that the following statement in a previous post on this blog was entirely appropriate:

… there is no proclamation of Emergency, but the Court – on its own initiative – acts as if there exists an Emergency, and its orders reflect judicial standards that are uniquely applicable to the Emergency regime. And this, in my submission, is the most appropriate conceptual framework within which to analyse the Court’s conduct on the Kashmir petitions over the last two months – a framework that is now fortified by the State’s first formal statement to come on the court record.

Before the Supreme Court, the Attorney-General placed reliance on the advice of the Privy Council in The Zamora, where Lord Parker stated:

Those who are responsible for the national security must be the sole judges of what the national security requires. It would be obviously undesirable that such matters should be made the subject of evidence in a Court of law or otherwise discussed in public.

This statement was made in the context of deference on factual determinations of the executive. The Court noted:

Their Lordships are of opinion that the judge ought, as a rule, to treat the statement on oath of the proper officer of the Crown to the effect that the vessel or goods which it is desired to requisition are urgently required for use in connection with the defence of the realm, the prosecution of the war, or other matters involving national security, as conclusive of the fact

In its Order in FMP, what the Supreme Court has done is not simply a deference to a factual determination of the executive. Indeed, it appears that the “factual” materials relied on by the Court (to which, at best, the above paragraph may apply) were in the form of a “Note” submitted by the Respondents after the matter was reserved for orders. This “Note” was – according to the Petitioner’s responsive submission – not supported by any materials on affidavit. But leaving that aside, what the Note indicates is that “militancy has significantly increased in the recent times…” and gives instances of encounters and attacks which took place in the Kashmir valley in April and May 2020. However, as the Petitioner’s responsive submission pointed out, this was much after the impugned restrictions in any case: how do these events – which took place after the restrictions were in place – demonstrate the need for having the restrictions in the first place? The “Note” also purports to rely on a report in The Print, about the Pakistani Army’s “Green Book” which (it is stated) calls for “information warfare”. (The Note only annexed the first print page of the news report, but the full report in The Print is available here.) The statement regarding information warfare appears in an essay by a Peshawar-based journalist in the Green Book. Without needing to go into any factual dispute, even assuming that the Peshawar-based journalist’s suggestions were indeed acted upon by the Pakistani establishment (and indeed, it would be surprising if “information warfare” is not on the table at all in these times), the legal question is: does this factual basis justify the restrictions? The Court makes no attempt whatsoever to engage with this legal question. [Further, another relatively minor point may perhaps be that orders must be defended on the basis of the reasons recorded at the time the orders are passed and not on the basis of subsequent reasoning: orders are not like old wine becoming better as they grow older.]

In any case, The Zamora was a case involving the wartime requisition of copper (the copper admittedly being contraband of war) from a ship headed purportedly to a neutral port, but claimed by the Government to be heading to an enemy port. The issue turned on whether this requisition was urgently required for national security reasons or not. It is noteworthy that in the same case, it was also pointed out:

 If the Court is to decide judicially… it cannot, even in doubtful cases, take its directions from the Crown, which is a party to the proceedings… It must itself determine what the law is according to the best of its ability, and its view, with whatever hesitation it be arrived at, must prevail over any executive order…

And on the facts, in The Zamora, the question was decided against the government because there was no evidence forthcoming about the purpose of the requisition. As the House of Lords clarified in Council of Civil Service Unions about Lord Parker’s statement about national security:

These words were no abdication of the judicial function, but were an indication of the evidence required by the court. In fact the evidence adduced by the Crown was not sufficient, and the court ruled that the Crown had no right to requisition. The Crown’s claim was rejected “because the judge had before him no satisfactory evidence that such a right was exercisable” (p. 108). The Prize Court, therefore, treated the question as one of fact for its determination and indicated the evidence needed to establish the fact. The true significance of Lord Parker’s dictum is simply that the court is in no position to substitute its opinion for the opinion of those responsible for national security.

The Zamora consequently does not at all support the stand that it is open to the Court to effectively refuse to hear a petition alleging violation of fundamental rights on account of the perceived demands of national security. Other than The Zamora (and of course, the decision in Anuradha Bhasin), the Court cites no authority whatsoever for the proposition that “national security” is a complete answer to a claim of violation of fundamental rights. The Court might as well have relied on the majority in Liversidge v Anderson. It might have expressly clarified for once and for all that however deep ADM Jabalpur is buried, Lord Atkin’s dissent (“In this country, amid the clash of arms, the laws are not silent…”) was not applicable in India.

The constitution of the Special Committee; and a (forlorn?) hope

Further, the basis for the direction to constitute a Special Committee of three secretary-level officers is also not entirely clear. The question raised before the Court would require findings on questions such as (a) the appropriate standard of review, and (b) the validity on the restrictions on the fundamental rights in question. The Court itself appears to accept that “the submissions of the Petitioners, in normal circumstances, merit consideration.” These are, very clearly, issues requiring the application of a judicial mind. The Supreme Court has stated in Madras Bar Association v Union of India (per Nariman J., concurring):

the decision by superior courts of record of questions of law and the binding effect of such decisions are implicit in the constitutional scheme of things. It is obvious that it is emphatically the province of the superior judiciary to answer substantial questions of law not only for the case at hand but also in order to guide subordinate courts and tribunals in future. That this is the core of the judicial function as outlined by the constitutional provisions set out above… All substantial questions of law have under our constitutional scheme to be decided by the superior courts and the superior courts alone

If the executive had stated that violations of fundamental rights will be dealt with by a committee of three Secretary-level officers, it is unthinkable that such a mechanism would be constitutionally valid. Perhaps the only way to save such a mechanism (although even that is doubtful) would be for the decision of the Committee itself to be open to question and the Supreme Court then undertaking a proper judicial review of such decision. The Supreme Court’s Order grants no such liberty expressly permitting the Petitioner’s to come back to the Supreme Court; and the entire tenor of the Order with its focus of “national security” and “compelling circumstances” appears to suggest that whatever is held by the Committee will be effectively conclusive. One of course hopes that that is not the case; that today’s Order ultimately is seen as ‘only’ Evasion by Adjournment  (for a future Bench to re-consider after the Special Committee decision) and not the cementing of a culture of Evasion by Abnegation.

Conclusion

To conclude, it may be worth noting one further aspect. The Supreme Court’s admission in the Order that the submissions of the Petitioner merited consideration “in normal circumstances”, but its ultimate holding that those submissions cannot be considered by the Supreme Court in view of “compelling circumstances of cross-border terrorism”, is particularly striking. In A v Secretary of State for the Home Department, Lord Hoffman (himself not particularly averse to giving a long leash to the executive in matters of national security) observed:

 The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve…

One is forced to wonder: have we reached a situation where we run the risk that this quote becomes an accurate summary of the present?

Guest Post: Jammu and Kashmir’s New Domicile Reservation Policy – Some Constitutional Concerns

[This is a Guest Post by Varun Kannan].


On 31st March, the Ministry of Home Affairs notified the Jammu and Kashmir Reorganization (Adaptation of State Laws) Order, 2020 (‘the Adaptation Order’). This executive order has, inter alia, created a new domicile reservation policy for government jobs in the Union Territories of Jammu and Kashmir and Ladakh.

After explaining the procedure adopted for enacting this new domicile reservation policy, I shall raise certain constitutional concerns with respect to this procedure. Specifically with respect to the newly constituted Union Territory of Jammu and Kashmir, I shall argue that the conversion of the erstwhile State into a Union Territory, coupled with the continued imposition of President’s Rule has given the Centre Government a carte blache to enact such policies without any pre-legislative consultation.

The Adaptation Order and the new domicile policy

Through the Adaptation Order notified by the Union Home Ministry, a total of 127 State laws applicable to the Union Territories of Jammu and Kashmir and Ladakh have been amended or repealed. The State legislation which has been amended to give effect to the new domicile policy is the Jammu and Kashmir Civil Services (Decentralization and Recruitment) Act, 2010. The Adaptation Order has inserted Section 3A to this Act, which prescribes new eligibility criteria to be deemed as a ‘domicile resident’ of Jammu & Kashmir. The new eligibility criteria inter alia includes requirements such as (i) the person should have resided in Jammu & Kashmir or Ladakh for a mimumum period of 15 years; or ii) the person should have studied for a period of seven years and appeared for Class 10th/12th Board Examinations through an educational institution located in the Union Territory.

After the notification of the Adaptation Order, there was an uproar over the ‘inadequacy’ of the new domicile reservation policy, as it was applicable only to a limited category of government jobs. The Union Home Ministry then notified a Second Adaptation Order on 3rd April, which took into account this stringent criticism and extended the applicability of the new domicile reservation policy to all government posts.

In the Adaptation Order, it is stated that this Order derives legal force by virtue of Section 96 of the Jammu and Kashmir Reorganization Act, 2019 (‘the Reorganization Act’). To recall, the Reorganization Act has bifurcated the erstwhile State of Jammu and Kashmir into two separate Union Territories of Jammu & Kashmir and Ladakh respectively. This statute was introduced simultaneously with the Presidential Order and the Statutory Resolution which amended Article 370 of the Indian Constitution, on 5th August 2019. To understand the nature and purpose of the Adaptation Order, it is instructive to refer to Section 96 of the Reorganization Act. Section 96 falls under Part XIV of the Reorganization Act, which consists of “Legal and miscellaneous provisions”. It states as follows:

For the purpose of facilitating the application in relation to the successor Union Territories, of any law made before the appointed day, as detailed in Fifth Schedule, the Central Government may, before the expiration of one year from that day, by order, make such adaptations and modifications of the law, whether by way of repeal or amendment, as may be necessary or expedient, and thereupon every such law shall have effect subject to the adaptations and modifications so made until altered, repealed or amended by a competent Legislature or other competent authority. (emphasis supplied).

 

The Fifth Schedule referred to above consists of the Central and State Laws that are applicable in the newly formed Union Territories of Jammu and Kashmir and Ladakh. One striking aspect of Section 96 is that it confers the Central Government the power to amend or repeal any Central or State law applicable in the Union Territories, if it considers it to be ‘necessary and expedient’. This power is available for a period of one year from the appointed date i.e. the date on which the Reorganization Act came into force, which was fixed as 31st October 2019. Now, such a provision enabling the adaptation and modification of existing laws by the Executive is not unique to this Reorganization Act. A similar provision is also present in the Section 101 of the Andhra Pradesh Reorganization Act, 2014, which confers the appropriate government with similar powers of adaptation and modification.

Now an important question arises with respect to the scope and ambit of the power of ‘adaptation and modification’ conferred by Section 96. The question that arises here is whether the power conferred by Section 96 is limited to making adaptations and modifications solely for purposes of procedural and administrative efficiency, and whether it extends to making policy alterations, such as the new domicile policy.

The scope and ambit of the power of ‘adaptation and modification’.

From a plain reading of Section 96, it is evident that the purpose of this provision is to adapt or modify any law for the purpose of facilitating its application to the successor Union Territories, if the Central Government feels that it is necessary and expedient to do so. This is further qualified by a one-year time limit, which means that adaptations and modifications can be made for a period of one year from the date on which the Reorganization Act has come into force.

The presence of a one-year time limit and the words “for the purpose of facilitating the application in relation to the successor Union Territories, of any law” indicates that such adaptations and modifications made through executive orders can be undertaken only for procedural and administrative matters connected with the bifurcation and the conversion of the erstwhile State into a Union Territory. This also implies that policy changes made through executive orders which are unconnected to this process of facilitating the application of existing laws shall be beyond the ambit of Section 96. This interpretation is also in line with the Supreme Court’s decision in the landmark In Re: The Delhi Laws Act case, where it was held that the Legislature cannot delegate matters of legislative policy to the Executive.

Keeping in mind the wording of Section 96 and the In Re: Delhi Laws Act decision, it can be argued that Section 96 cannot be used to make any substantive policy changes by amending existing laws; and it is restricted to matters of procedure and administration that are necessary for facilitating the smooth application of existing laws to the newly constituted Union Territories. Hence, the question that arises here is whether the Adaptation Order, insofar as it amends an existing law to create a new domicile policy, is ultra vires Section 96, and whether it goes beyond the ambit of the parent statute. At first glance, the answer may appear to be in the affirmative. However, there are other provisions in the Reorganization Act and the Indian Constitution, which may be invoked as possible justifications.

A possible constitutional justification?

To address this issue, it is significant to note that as per the Reorganization Act, the Union Territory of Ladakh does not have a Legislature, and is to be administered by a Lieutenant Governor, acting on behalf of the President. On the other hand, the Union Territory of Jammu and Kashmir follows a model similar to Pondicherry and Delhi, and is envisaged to have a Legislature and a Council of Ministers headed by the Chief Minister. As the Union Territory of Ladakh does not have a Legislature and is to be administered solely through the Lieutenant Governor, the Adaption Order may be justified by referring to Section 58 of the Reorganization Act, and by invoking Article 240 of the Indian Constitution.

Section 58 makes Article 239 and Article 240 applicable to the Union Territory of Ladakh. Article 240 accordingly states that for Union Territories that fall within the ambit of Article 239 (such as Pondicherry and now Ladakh), any Regulation made by the President which amends or repeals any applicable law shall have the same force as an Act of Parliament. Hence, with respect to the Union Territory of Ladakh, the Adaption Order can be considered as a Regulation made by the President under Article 240, and can be justified on these grounds. However, with respect to the Union Territory of Jammu and Kashmir, the position is significantly different.

Unlike Ladakh, Article 240 is inapplicable to the Union Territory of Jammu and Kashmir. This is by virtue of Section 13 of the Reorganization Act and the proviso to clause (1) of Article 240. Section 13 states that the provisions contained in Article 239A of the Constitution as applicable to Pondicherry shall also be applicable to the Union Territory of Jammu & Kashmir. Furthermore, the proviso to Article 240(1) states that if a body is created under Article 239A to function as the Legislature for the Union Territories enlisted under Article 239A (which now includes Pondicherry and Jammu and Kashmir), then until the first meeting of the legislature, the President may make Regulations for that Union Territory.

This may be used as a justification by the Central Government in a possible constitutional challenge, as the Union Territory of Jammu and Kashmir is currently under President’s rule, and no Legislative Assembly has been created after the passage of the Reorganization Act. It may contend that even if the Adaptation Order is ultra vires the ambit of Section 96 of the Reorganization Act, it is saved by Article 239A and the proviso to Article 240(1). Another justification that the Central Government may give is that following the 5th August statutory resolution, the concept of ‘permanent resident’ as given in the Jammu & Kashmir Constitution has ceased to exist.

This is because following the 5th August statutory resolution, the Jammu & Kashmir Constitution (which defined a permanent resident under Article 6) has been done away with. Along with this, even Article 35A of the Indian Constitution, which empowered the State Legislature to define the “permanent residents” of the erstwhile State, was abrogated. This abrogation of the concept of “permanent resident”, it can be argued, has led to a vacuum in the domicile eligibility criteria applicable in the newly constituted Union Territories.

Imposition of President’s rule and conversion into Union Territories: A larger constitutional question

Keeping this possible justification aside, there is a larger constitutional question that we must address here. As the Union Territory of Jammu and Kashmir is envisaged to have a Legislative Assembly, Article 239A read with the proviso to Article 240(1) permits the issuance or executive orders by the President (i.e. the Central Government) only until the first meeting of the Legislative Assembly, after fresh elections are held. It is pertinent to note here that Jammu & Kashmir was under President’s rule prior to its conversion to a Union Territory, and has continued to remain in President’s rule even after 31st October 2019 (when the Reorganization Act came into force). Article 356 of the Indian Constitution has continued to hold fort in Jammu and Kashmir since 19th December 2018, and there is no information on any proposal to have fresh elections in the near future. The continued imposition of President’s rule and the conversion of the State into two separate Union Territories has given the Central Government a carte blanche to indiscriminately take advantage of the statutory and constitutional provisions referred to above, and rule by executive decree.

The rationale behind the Central Government wanting this unbridled power can be highlighted by referring to the Supreme Court’s decision in NCT of Delhi v. Union of India. In its decision, the Supreme Court held that although Delhi is a Union Territory and akin to a quasi-State, the actions of an elected government and an elected Legislature shall bind the Lieutenant Governor – for all matters that are within its legislative domain. Although this decision was based on an interpretation of Article 239AA of the Constitution, it applies squarely to Jammu & Kashmir – as akin to Delhi, Jammu and Kashmir is envisaged to have a Legislature despite being a Union Territory. This implies that for all matters within its legislative domain, the Legislature of the Union territory of Jammu and Kashmir shall stand supreme, and bind the Lieutenant Governor and Central Government. Hence, if fresh elections had been held and a Legislative Assembly had been constituted, the Home Ministry could not have indiscriminately taken the benefit of 239A, the proviso to Article 240(1), and Section 96 of the Reorganization Act, to bring about radical changes such as the new domicile policy.

As pointed out above, the new domicile policy had been criticized by leaders across political parties, who claim that it is inadequate, and only granted domicile reservation for a limited category of government jobs. Fearing major backlash, the Home Ministry notified another Adaptation Order and amended the law once again, to bring within its ambit all government posts. This is exactly what exacerbates the problem further. If there was an elected Legislature in the first place, such a domicile policy could only have been passed through legislation, after a debate and discussions involving members from across party lines. The conversion to Union Territories coupled with the imposition of President’s rule has prevented any such discussion from taking place, and has granted the Central Government a carte blanche to make policy prescriptions without any pre-legislative consultation process.

While the Home Ministry is free to contend that once there is an elected legislature, the Legislature may further amend or repeal the changes after discussion, this shall only buttress my primary point – that as the presence of a Legislature is envisaged, such legislative policy prescriptions should be left solely within its domain. This only culminates in one common end – which is the need for a greater legal and judicial conversation on whether it is within the spirit of the constitutional framework to indefinitely impose and repeatedly extend President’s rule under Article 356, and rule virtually by executive decree. Until this status quo remains, there shall only be rule by law in Jammu & Kashmir, and not rule of law.

King Menelaus at the Bar of the Indian Judiciary

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.

The Devil’s in the (future) Detail: The Supreme Court’s Internet shut-down Judgment

Previously on this blog, we have discussed in some detail 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 (paragraph 126, 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.]

 

Guest Post: The Kashmir Internet Ban – What’s at Stake

[This is a guest post by Suhrith Parthasarathy.]


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.

Facts

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 role of courts: and why the supreme court is playing the waiting game

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.

Judicial independence 

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.

Conclusion

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.

Kashmir: Fundamental Rights and Sealed Covers

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.   

One Nation, One Flag, One Constitution? – II: Internal, bilateral, or international? (Guest post series)

(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 questionin 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.

Kashmir is personified as a ravaged and helpless young woman, as the turbaned Pashtun invader gloats over his conquest, and a UN official carrying a file full of resolutions wags his finger at her. India viewed the UN’s intervention, treating Kashmir as disputed territory instead of Pakistan as an aggressor, as misguided. Shankar’s Weekly, 22 Aug 1948

Questions about Kashmir’s international legal status inevitably lead to a cascade of further arguments over the nature and meaning of the Instrument of Accession, signed in October 1947 between Maharaja Hari Singh of Jammu and Kashmir and Governor General Mountbatten of the Dominion of India. Was this document a treaty, that is, an international agreement creating a binding legal obligation between two sovereigns? Did the Maharaja, as the sovereign head of a princely state formerly under British suzerainty have the legal capacity to enter into such an agreement at the moment of decolonization? What effect did the Instrument have on the legal status of Kashmir, and its sovereignty? What did the UN peace processes that began in 1948 mean, and what did they do to Kashmir’s legal status? What effect did the incorporation of the terms of the Instrument of Accession into the Indian Constitution have on Kashmir’s legal status in International Law? What about other wars fought over the region, and other treaties and agreements over the years? And finally, what has the latest move done to Kashmir’s status?

The imperium of International Law

 Before we tackle this torrent, let us embark on a brief detour, taking in the imperial and colonial origins of International Law, and the implications they may have for our understanding of Kashmiri sovereignty in particular, and for claims to sovereignty in the post colonial world in general. Westphalian models of International Law imagine ‘sovereignty’, ‘territory’ and ‘population’ (or power, land, and people) as neatly coinciding attributes so as to form independent, well defined, bounded, and “natural” nation states, entitled to govern themselves and exert a monopoly of force within their boundaries without external interference. Anomalies or departures from this model were seen as terra nullius, empty, unoccupied lands without sovereigns, legally available like other things without owners—wild beasts, lost slaves and abandoned buildings—for conquest through seizure, by civilized and self governing (i.e. White, European) men and nations. In alignment with this legal tradition, and without any appearance of apparent irony, the boundaries of the post-colonies, through the long century of decolonization (beginning with the decolonization of Spanish America in the early nineteenth century and stretching into the liberation of Asia and Africa in the 1960s), were largely determined by the principle of Uti possidetis juris (you may keep what you posses by law) drawn from the medieval laws of conquest of territory in International Law. Under this principle, upon becoming self-governing territories, postcolonial successor states inherit the boundaries, dependencies, and often the governing frameworks of their colonial predecessors. It was felt by former colonisers and colonies alike that once the self-determination claims of the former colonial possessions were realized, and sovereign, independent nationhood attained, their boundaries solidified in perpetuity, and no further legitimate claims to self determination persisted in order to guard against the instability and contentions to sovereignty that may be wrought by colonial withdrawal and transfers of power. This explains the marked reluctance in International Law and international relations to apply the Right to Self-determination “within” the inherited boundaries of post-colonial nations, as instantiated by India’s reservations to Article 1 of the International Covenant on Civil and Political Rights, 1966 as well as the International Covenant on Economic Social and Cultural Rights, 1966 on the Right to Self-determination. In its reservation, India states that the Right to Self–determination applies “only to the peoples under foreign domination and that these words do not apply to sovereign independent States or to a section of a people or nation–which is the essence of national integrity.”

“Accession”

The Accession is seen as a swayamvara marriage freely entered into by the demurely sari-clad Kashmiri bride, who choses to garland Indian Home Minister Vallabh bhai Patel, as the priestly N. Gopalaswami Ayyanger smiles on approvingly, and the international community including British PM Clement Atlee, and Stalin, as well as Pakistani Prime Minister Liaquat Ali, and other Pakistani politicians look on in shock. Shankar’s Weekly, 24 Oct 1948

The princely states of British India, which covered 40% of the area of the Indian sub-continent, contained 23% of its population, and exercised vastly differentiated, unequal and splintered modes of sovereignty and statehood under the suzerainty of the British Indian government, posed a challenge to the Westphalian model beforeduring and after partition and the transfer of power. For instance, in the inter-war years when debates relating to the international trafficking of women and children raged in the League of Nations (in which British India was itself an anomaly as the only non-governing state admitted as member), princely states were treated at certain times as sovereign, ‘foreign’ territories with international borders and at others as part of British India, on par with the provinces. In the precipitate prelude to the Partition of British India and the making of India and Pakistan, the intractability of such contradictions became more apparent. The British exit strategy in 1947 attempted a clumsy rapprochement between the principle of Uti possidetis juris, or the inherited boundaries of successor states, with recognition of the sovereignty of the princely states.

While “accession” in International Law signifies the assent by a state to an already existing treaty, the Instrument of Accession was a sui generis (unlike any other) legal contract, devised and codified under the Government of India Act, 1935 to enable princely states to broadly continue the treaty relationship that formerly existed with the British Indian government, as constituent units within the framework of the new Federation of India, set up under the 1935 Act. The Instrument provided the rulers of the princely states a sphere of sovereign autonomy over the internal affairs of their kingdoms while the federal government retained certain legislative subjects specified in a separate schedule (such as foreign relations and military affairs).

The official British position under the Indian Independence Act, 1947 was that British suzerainty over the princely states would lapse with the transfer of power, and all sovereign powers would be restored to princely states, who then would be free to negotiate the terms of their future relations with either of the successor states—the dominions of India or Pakistan—or choose to remain independent. However, in his dealings with them Governor -General Lord Mountbatten cajoled state after state into signing “Instruments of Accession” as provided for under the Government of India Act, 1935, threatening them with ostracism from the international community, including being excluded from the British Commonwealth, should they chose to remain independent. This was in keeping with the ruling establishment of Indian National Congress, including future Indian Prime Minister Jawharalal Nehru, who adopted the classic terra nullius position of seeing princely states as anomalous, feudal, autocracies without popular sovereignty that were carved out of the territory of the greater Indian nation into which they should be re-incorporated. Going a step further, Nehru declared at a meeting of the All India States Peoples’ Conference in April 1947 that any princely state that refused to join the Indian Constituent Assembly would be treated as a “hostile state”. British, Indian, and Pakistani state actions, including diplomatic communications and policy documents at the time of decolonization showed an acceptance of the belief that the Instruments of Accession were binding sovereign agreements, and thus would form opinio juris (opinions of law), an element of customary International Law that binds nations.

Jammu and Kashmir, the largest of the Princely Kingdoms with a Hindu ruler and a majority Muslim population, which had its own Constitution, a partially-elected legislature, an independent judiciary, and laws that provided its subjects quasi-citizenship rights to domicile, livelihood and property, remained a holdout against the pressures to conform and accede, with the Maharaja Hari Singh and his Prime Minister Ram Chandra Kak favouring further negotiations before making a choice. The Maharaja entered into a Standstill Agreement with the Dominion of Pakistan in August 1947, whereby Pakistan as the successor state would continue with certain contractual obligations, and administer the continued operation of postal, telegraph and railroad services in Kashmir.

However, in late October 1947, faced with an armed rebellion and insurrection in the Western quarter of his kingdom in Poonch, presentiments of genocidal violence against Muslims in the South, stirrings of mutiny in the far North, and an invasion by Pashtun tribesmen from the North-West that had almost reached the city gates, the Maharaja fled from his summer capital Srinagar, and hurriedly signed an Instrument of Accession with India, as a pre-condition to India airlifting troops and coming to the defense of his kingdom. The date of this signing is however disputed, with several historians contending that the Instrument was in fact signed after the landing of Indian troops, on 27 October 1947, or never signed at all, thus making it an entirely illegitimate invasion, with no consent of the reigning sovereign. Pakistan questions the capacity of the Maharaja to enter into such an agreement on behalf of his people having signed a prior Standstill Agreement with Pakistan, and whilst two-fifth of his kingdom (Azad Kashmir and the Northern Areas of Gilgit and Baltistan) was no longer under his effective control.

The presence of Indian boots on Kashmiri ground, whether immediately prior to or immediately after the signing of the Instrument of Accession, even if for the protection of the Maharaja’s land and people, also lays open questions of the threat of use of force, and the voluntariness of the Maharaja’s conditional assent to the Instrument of Accession. The Maharaja’s letter of 26 October 1947, viewing the agreement as a condition precedent to receiving military assistance to save his kingdom, adds heft to this argument. Art. 52 of the Vienna Convention on the Law of Treaties (1969) states that a treaty is void ‘if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations’ and, thus, rejects the validity of even a treaty-based annexation, though of course given the (Westphalian) state-centric model of International Law, the ‘anomalous’ ‘quasi sovereignty’ of Jammu and Kashmir, as a not quite (and perhaps never to be) sovereign state, makes the Vienna Convention at best a guiding rather than a binding axiom applicable to the situation.

 “Annexation”

This view that there is no valid legally binding document that governs the India-Kashmir relationship, which is shored up by considerable historical evidence, would mean that the Indian control over Jammu and Kashmir was in effect an illegitimate seizure, or an annexationa unilateral act of assertion of sovereignty by forcible territorial occupation or conquest (whether or not it is met with actual resistance), accompanied by the permanent administrative takeover of a state, or disputed territory, by another. Annexations are seen as acts of aggression violating the UN Charter’s rules on the legitimate use of force, and thus are an outlawed act of war, prohibited under International Law. The unilateral actions of the Indian state in changing the status of Jammu and Kashmir from a federal unit to directly-administered Union Territories, destroying the last residues of its territorial integrity and legal autonomy, arguably only further consolidates and perpetuates the initial illegal act of aggression.

India has however always maintained that the Instrument of Accession is a valid and binding legal instrument, in the nature of a sovereign contract (in other words a treaty) entered into between India and the Maharaja, in his capacity as the absolute ruler of (the entire territory) of the former princely state of Jammu and Kashmir. This position was not only articulated by India in the UN debates about the Kashmir dispute, but also by the Indian Supreme Court in the Premnath Kaul case, which involved a constitutional challenge to Kashmiri land reforms, where the Court held that even after the lapse of British paramountcy on the passing of the Independence Act, 1947, “the Maharaja continued to be the same absolute monarch of the state […] and in the eyes of international law he might conceivably have claimed the status of a sovereign and independent State.

What did the Instrument of Accession say? 

If we accept that the Maharaja was sovereign, and validly entered into a legally binding agreement, we must first wade through the deep waters of the Instrument of Accession, and its accompanying documents, which together are considered a part of the instrument under the laws governing international contracts and agreements. Following this, we must venture further and deeper into the processes through which the United Nations and the Indian and Jammu and Kashmiri Constitutions affected the legal position the Instrument sets out. We then arrive at the clearing of what this might all mean for Kashmir’s legal status. The Instrument of Accession sets out the terms upon which the Maharaja accepted or acceded to the jurisdiction of the Dominion of India. Like in Instruments signed by several of the other larger princely states with ‘internal autonomy’, the ruler consented to give up some of his lawmaking powers—in the domains of foreign affairs, communications and defence to the Dominion of India—while preserving his sovereign and territorial authority. The eminent domain over all land in the State vested in the Maharaja exclusively, and land could only be acquired by India if transferred by him. Under Clause 5, the agreement states that its terms could only be modified by consent of the ruler of the state. Further, it was quite categorical on the continuance of the rights of the Maharaja as a sovereign ruler, and of the constitutional autonomy of Jammu and Kashmir itself, except in the specified spheres listed in the schedule to the Instrument. Clause 7 of the Instrument states, “Nothing in this Instrument shall be deemed to be a commitment in any way as to acceptance of any future Constitution of India or to fetter my discretion to enter into arrangement with the Governments of India under any such future Constitution.” Clause 8 reiterates, “Nothing in this Instrument affects the continuance of my sovereignty in and over this State, or save as provided by or under this Instrument the exercise of any powers, authority and rights now enjoyed by me as Ruler of this State or the validity of any law at present in force in this State.” In his letter accompanying the Instrument dated 26 October 1947, the Maharaja wrote that Indian military aid was sought in return for the Accession. He also stated that that it was his intention to immediately set up Interim Government. On 30 October 1947 he appointed Sheikh Abdullah, the leader of the National Conference, to head the government as Emergency Administrator alongside his own representative, the then Prime Minister Meher Chand Mahajan.

Governor General Mountbatten in his letter dated 27 October 1947, accompanying his formal acceptance of the Accession, acknowledged the Right to Self-determination, and popular sovereignty of the Kashmiri peoples. He wrote: “[M]y Government has decided to accept the accession of Kashmir State to the Dominion of India. Consistently with their policy that, in the case of any State where the issue of accession has been the subject of dispute, the question of accession should be decided in accordance with the wishes of the people of the State. It is my Government’s wish that as soon as law and order have been restored in Kashmir and its soil cleared of the invader, the question of the question of State’s accession should be settled by a reference to the people.”

The Instrument and its associated documents therefore do not lay out a final and complete arrangement in perpetuity, but are rather in the nature of a provisional and conditional agreement, providing for the continuance of the Maharaja’s sovereign title aided by an emergency administration, and contingent upon the provision of Indian military aid in the immediate future as well as the occurrence of a plebiscite once “law and order had been restored.”

War, and (not quite) Peace

In the immediate aftermath of the signing of the Instrument, war was declared between India and Pakistan. The Indian Cabinet referred the Kashmir dispute to the UN Security Council on 1 January 1948 in order to reach a peaceful settlement, with Pakistan also raising its own issues two weeks later. The UN Security Council through Resolution 39 established the United Nations Commission on India and Pakistan (UNCIP) on 20 January 1948 to investigate the claims and counter-claims about the illegal use of force and occupation of territory made by both Pakistan and India. The Security Council adopted Resolution 47 on 21 April 1948 asking that Indian troops and Pakistani tribesmen withdraw from Jammu and Kashmiri territory, that an interim local authority be established to represent the major Kashmiri political groups from both sides of the cease-fire line, and that a five-member UNCIP delegation go to Kashmir to help restore peace and conduct a plebiscite.

The Ceasefire: “Still on foot, UN Military observers have crossed another river and are now nearing the disputed outpost. The altitude here is more than 10,000 feet and much of the footing is ice. The lead man uses the staff of his UN identification flag as a walking stick.” UN Photos. 01 January 1948

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.”

The  Delhi Conference, 20-25  July 1950.  According to Dixon’s report of the talks, Nehru monopolized the  conversation, speaking for almost 10 hours, while Ali spoke for barely half an hour.   In a contemporaneous cartoon, The UN mediator Owen Dixon is eager to officiate at a wedding. The groom, Pakistan Prime Minister Liaquat Ali looks pleased with himself,  while Nehru looks alarmed and befuddled at the proceedings.  Kashmir, the bride tries to draw Nehru away.  Shankar’s Weekly, 3 Sept 1950

Constitution making

Even as the UN negotiations were ongoing through 1949 and 1950, the Constituent Assembly was engaged in drafting the Constitution of India. By mid 1949, it had become increasingly clear that the UN was unprepared to accept India’s position on the finality of the accession, or the legitimacy of the Maharaja-appointed National Conference government as the sole political authority over the entire territory of the erstwhile state of Jammu and Kashmir. Though referred to as a “popular government” Abdullah’s administration was appointed in the immediate aftermath of the signing of Instrument of Accession, as an interim, emergency wartime measure, and at the insistence of Prime Minister Nehru. Sheikh Abdullah’s National Conference which had been at the forefront of the anti–colonial and anti-monarchial movement since 1946, had boycotted the previous two elections to the Jammu and Kashmir State Assembly. Abdullah himself had only been recently released from prison in September 1947, again at the insistence of Nehru and Gandhi.

On 16 June 1949, four days before the Maharaja announced his abdication, and five months before the Constitutional drafting process came to an end, a four member delegation from Kashmir, headed by the Prime Minister of the Interim Government, Sheikh Abdullah, joined the Indian Constitution drafting process. N. Gopalaswami Ayyangar, member of the drafting committee, and later Minister of State for Kashmir Affairs, had proposed their induction three weeks earlier, stating on the floor of the Constituent Assembly that it would be “unfair to the Government and the People of the State of Jammu & Kashmir to deny them the opportunity of participating in the discussions” on the new Constitution of India. The non-representative character of Prime Minister Abdullah’s (unelected) delegation was opposed by some members, mainly on communal grounds, but it was argued by the Indian government that the partly-elected legislative assembly and the pre-war cabinet had fallen into disarray through the winter of accession, war and partition. (What was left unsaid: many opposition figures and prominent voices opposed to Accession, including former Prime Minister Ram Chandra Kak, had been exiled or externed by the emergency administration, using wartime legislation such as the Enemy Agents Ordinance). On 20 June of 1949, after two months of stormy closed door meetings and agonised bargaining with Indian Home Minister Vallabhbhai Patel, the Maharaja made a sudden declaration that he was “temporarily” vacating his throne in favour of his eighteen-year-old son, the Prince Regent Karan Singh, entrusting to him legislative, judicial and executive powers. The Maharaja and his wife Tara Devi were never permitted to return to Kashmir and the Maharaja died in Bombay in 1961. Shortly after his abdication and exile, in October of 1949, Article 306-A, which later took final form as Article 370, was debated in the Constituent Assembly and drafted into the Constitution of India.

The Article violated the terms of the Instrument of Accession, which had explicitly stated that the Instrument would not be deemed to be a commitment to the acceptance of a future constitution of India and any other future agreement must be entered into at the Ruler’s sole and unfettered discretion, conditional upon a reference to the popular will once the war-time emergency had passed. Article 370 incorporated the “Indian State of Jammu and Kashmir” as one of the constituent states in the territory of Indian Union, thus over riding the (by then) deposed Maharaja’s sovereign right and title to his lands. It allowed for the negation of the legislative autonomy and sovereignty of Jammu and Kashmir State and its ruler, beyond that which was contemplated by the instrument through the medium of Presidential Orders passed by the Union executive. On 25 November 1949, the day before the Indian Constitution was adopted, the Prince Regent Yuvraj Karan Singh issued a proclamation declaring that the Constitution of India shall govern the constitutional relationship between the State and the Union of India, and will be enforced in the State by him, his heirs and successors. He also declared that the provisions of the Indian Constitution would supersede and abrogate all other constitutional provisions inconsistent with it, which were then in force in the State (under the old Dogra era Jammu and Kashmir Constitution Act, 1939).

In October 1951, India convened a Constituent Assembly to formulate a Constitution for Jammu & Kashmir—in a thoroughly compromised, violent and widely boycotted electoral process in which National Conference candidates stood with the slogan “One Leader, One Party, One Programme” and were elected unopposed in all seventy five seats. In response, the Security Council passed Resolution 91 of 1951 affirming that the convening of the Constituent Assembly and any action it might attempt to take to determine the “future shape or affiliation of the entire state or part thereof” of Kashmir “would not constitute a disposition of the State in accordance with the principle of a free and impartial plebiscite conducted by the UN.” The Constituent Assembly was formally dissolved by resolution in January 1957 after framing a separate Constitution for Jammu and Kashmir, in defiance of the Security Council Resolutions, declaring that the whole of the former princely State “is and shall be integral part of the Union of India”. Even the Indian Constitution arguably only refers to the territory under Indian control, by referring to the “Indian State of Jammu and Kashmir” (the only state whose description is prefixed by its national allegiance). The Jammu and Kashmir Constitution on the other hand explicitly asserts India’s territorial and political claim to the entire territory of the erstwhile kingdom stating that “[U]ntil the area of the State under the occupation of Pakistan ceases to so occupied and the people residing in that area elect their representatives twenty-five seats in the Legislative Assembly shall remain vacant and shall not be taken into account for reckoning the total member-ship of the Assembly”. UN Security Council in Resolution 122 of 1957 reiterated the action taken by the Constituent Assembly would not satisfy its earlier resolutions calling for a plebiscite.

But isn’t Kashmir a bilateral dispute?

While the UN continued to pass resolutions urging the peaceful settlement of Kashmir, over the next decade, including after the seventeen day Second Kashmir war in 1965, the resolution of the Kashmir dispute saw little real progress as the UN became embroiled in Cold War-era veto politics. The next major development occurred at the end of the Bangladesh War, with the signing of the Shimla Agreement in 1972. The Agreement converted the cease-fire line in Jammu and Kashmir (as of the cessation of hostilities in December 1971) into the Line of Control (LOC) between India and Pakistan and it was agreed that “That the two countries are resolved to settle their differences by peaceful means through bilateral negotiations or by any other peaceful means mutually agreed upon between them. Pending the final settlement of any of the problems between the two countries, neither side shall unilaterally alter the situation.”

Since the signing of the Shimla Agreement, India vociferously maintains that the Kashmir dispute is exclusively a bilateral issue, and dismisses all international debate or interventions, including by the United Nations, as being legally ruled out by the terms of this agreement. India also claims that the demarcation of the Line of Control has overruled the earlier Karachi Agreement (1949) on the UN-mandated Ceasefire Line and therefore prevents access to the UN Military Observers Group from the LoC on the Indian side, despite the continuously occurring ceasefire violations that have claimed hundreds of Kashmiri lives from both sides of the bloodied dividing line. However, no treaty or agreement can overrule the application of all international laws. No issue is purely domestic—the laws of international custom create obligations on nations to abide by a peremptory and universal honour code. For instance no bilateral or multilateral agreement, or domestic law, court or constitution can permit or legalise colonialism, apartheid, slavery, torture, genocide or acts of unilateral aggression or unlawful use of force. The text of the Shimla Agreement itself acknowledges this when it states “That the principles and purposes of the Charter of the United Nations shall govern the relations between the two countries,” and further that “in accordance with the Charter of the United Nations, they will refrain from the threat or use of force against the territorial integrity or political independence of each other.” The purposes of the UN Charter as laid out in Article 1 includes “[T]o develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace.”

“Occupation”

We have taken this rather long historical journey to uncover the terrain of the relationship between India and Kashmir, as set out in the Instrument of Accession and as modified by subsequent events and documents. It is clear that at the time of signing the Instrument of Accession, the Maharaja viewed it as a temporary and provisional arrangement entered into with India in order to protect his kingdom preserve and his own power. Through it the Maharaja asserted his sovereignty and control over his separate and independent territory to the exclusion of any other authority. India was granted law-making powers in three spheres, until the final determination of the political and cartographic shape of the region through a reference to the will of the people. The unilateral change in this treaty, effected in the first instance by deposing and exiling the Maharaja and installing his barely-adult son as the Regent, will be very familiar to any student of British colonial policy towards “native” Indian states through the long nineteenth century. The Prince Regent was never officially recognized as the Ruler of the State, as sovereign powers were only “temporarily” delegated to him by his father prior to his unofficial but eventually permanent abdication and exile. The subsequent involvement of the non-representative Jammu and Kashmir delegation in the drafting process of the Indian Constitution, further violated the terms and conditionalities of Instrument of accession, and granted India sovereign rights over Jammu and Kashmir. The Prince Regent’s declaration on 25 November 1949, that the Constitution of India would henceforth govern the India-Kashmir relationship formally incorporated Jammu and Kashmir into the Indian polity. Finally, the Jammu and Kashmir Constitution, 1957 declared a unilateral territorial integration of the region. Taken as a whole these maneouvres granted India effective political, legal and territorial control over Jammu and Kashmir, in violation of the International Law recognition of its disputed status.

International Humanitarian laws define Occupation as the effective control of a foreign territory by hostile armed forces. In my view, when India breached the Instrument of Accession and effected the coercive albeit “temporary” integration of Kashmir into its constitutional framework superseding the holding of a plebiscite, its military forces lost the right to remain on Kashmiri soil and became hostile to the sovereign will and the right of the people of Jammu and Kashmir to determining their own political future. In effect and in that moment India legally became an occupying power. In this regard it is important to emphasize that pinpointing the exact temporal beginning of an Occupation is not necessary under the Laws of Occupation, as an occupation can begin through a series of events and hostilities that effectuate a gradual transition from invasion to effective administrative control. This is exemplified by the difficulties that experts have experienced in identifying the precise date at which the occupation of Iraq began in 2003.

Under International Law, an occupation is a question of fact. International Humanitarian law (IHL), the body of laws which deals with the humane regulation of wars, armed conflicts and occupations, is described as jus in bello (laws in war) as opposed to jus ad bellum (laws of war). IHL, of which the four Geneva Conventions form the core, is not concerned with the justness, lawfulness or causes of belligerency—who started it, or why—but only that wars be waged as humanely as possible, with the least possible suffering and devastation to civilian lives, land, and infrastructure. It specifically protects the most vulnerable—prisoners, the ship wrecked, the war wounded, the sick, and the civilian population of an occupied territory, amongst others—and lays down the principles of proportionality, military necessity and distinction (between combatants and non combatants) to help soldiers and their generals decipher what is and what is not a legitimate target.

This being the case, under the laws of occupation it does not matter if the occupying power denies the nature of its relationship to the territories it administers and controls, or sees them as an “integral part.” The existence of an occupation does not depend on a declaration by the occupying power that it is in occupation or any recognition of the occupation. The intention of the occupying power also does not matter, that is, whether it aims to exploit the occupied territory or liberate the population by its actions does not have any effect on the classification of the situation. Article 47 of the Fourth Geneva Convention expressly states that persons in the occupied area shall not be deprived of the benefits of the convention by any agreement between the authorities of the occupied territory and the occupying authority. Nor does it matter whether the occupying power meets with any armed resistance. Occupation differs from annexation in that it is a temporary sovereign takeover of a territory, where the inherent sovereignty of the occupied territories is not erased but is held in suspension until the occupation ends and the area is liberated or otherwise returned to its sovereign status. The only legal test to determine if a territory is occupied is that the prevailing situation meets the defined factual criteria set out under the laws of occupation. It bears repeating that the IHL regime is not concerned with the moral rightness or wrongness of the acts of invading and establishing temporary political authority over a foreign territory; what it is concerned with is the conduct of the occupying power thereafter to best protect the sovereignty, the population and the continued territorial existence of the occupied territory. It is a breach of these rules of conduct that renders an occupation unlawful, rather than the existence of a set of facts (however reprehensible) that meet the requirements of an occupation.

The definition and obligations under the law of occupation are found in two main international humanitarian instruments: The 1907 Hague Regulations ‘Respecting the Laws and Customs of War on Land’ and the Fourth Geneva Convention, 1949 ‘Relative to the Protection of Civilian Persons in Time of War’. India is not a party to the Fourth Hague Convention, 1907 to which the Hague Regulations are annexed. However, the International Court of Justice (ICJ) in its advisory opinionConcerning the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, held that the rules laid down in the Hague Regulations are part of international custom, which means that they apply to all states irrespective of whether they are party to a specific treaty or not. Article 42 of the 1907 Hague Regulations states that a “[T]erritory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.” The definition therefore requires three things to exist (i) a territory, (ii) a hostile army, (iii) and actual establishment and exercise of authority. Let us disentangle each of these strands to discover if the factual situation in Jammu and Kashmir can help determine whether it is an occupation.

Territory

While the Hague Regulations do not mention that the occupied territory must necessarily be a state or a part of a state, Common Article 2 of the four Geneva Conventions of 1949 (which India acceded to in 1950) states that the Geneva Conventions “shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.” Israel and other occupying powers have argued that this means that the article, and therefore the Geneva Conventions, apply only when the occupied territory belongs to a High Contracting Party, i.e. another state that has signed on to the Conventions. Under such an interpretation the Indian control over Jammu and Kashmir would not be an occupation, since prior to the Accession the independent kingdom of Jammu and Kashmir was neither itself a High Contracting Party nor did its territory belong to one. However, the International Court of Justice has categorically ruled that the Geneva Conventions will apply even when the status of the territory is contested. The Eritrea-Ethiopia Claims Commission award, another International Law ruling, also supports the view that the law of occupation must be applied to contested territory. The Commission stated, referring to the Fourth Geneva Convention and the Hague Regulations 1907, that “neither text suggests that only territory the title to which is clear and uncontested can be occupied territory.” The International Red Cross whose commentaries and interpretations of IHL are considered authoritative, states that “Occupation exists as soon as a territory is under the effective control of a State that is not the recognized sovereign of the territory. It does not matter who the territory was taken from. The occupied population may not be denied the protection afforded to it because of disputes between belligerents regarding sovereignty over the territory concerned.” It goes on to explain why this is necessarily the case: “Any other interpretation would lead to a result that is unreasonable as the applicability of the law of occupation would depend on the invading State’s subjective considerations. It would suffice for that State to invoke the controversial international status of the territory in question in order to deny that the areas in question are occupied territory and thus evade its responsibilities under the law of occupation.” This is precisely what India seeks to do when it simultaneously invokes the Maharaja’s right as a sovereign to sign the Instrument of Accession, but denies Jammu and Kashmir’s disputed legal status as recognized in International Law.

Hostile army

The second requirement of occupations, that of belligerency, or outright enmity and war or invasion between the occupying power and the occupied territory, has undergone a broadening in light of the changing character and technologies of twenty–first century wars and the foreign administration of territoriesScholars and lawyers have argued for the applicability of the law of occupations to a range of situations which do not fit into the classical definition of an enemy territory being physically occupied for a temporary period through war and invasion. Situations where effective control was exercised through proxies (for instance in parts of former Yugoslavia in the 1990s), through multinational agencies (the United Nations administration set up post war Iraq in 2003) in post-conflict circumstances for “humanitarian” reasons, or which are so prolonged as to be almost permanent, are now seen as falling within the ambit of occupation law. Several states, for instance Nazi Germany in the case of Quisling’s Norway administration, or Vichy France, or Japan in the case of Manchukuo, have historically invoked or even celebrated the consent of the sovereign and the local administrative surrogate to deny the applicability of occupation law, as India does through its reliance upon the finality of the Maharaja’s signing of the Instrument of Accession and the constitutional creation of the Jammu and Kashmir state administration. However, as the International Court of Justice ruled in the case of the Namibia, after the UN General Assembly renounced the South African mandate over it, consent may be withdrawn at any time, transforming a continuing foreign military presence into an occupation. Even if the coercive abdication and exile of the Maharaja of Jammu and Kashmir did not vitiate his consent to Indian military presence and to the establishment of the Sheikh Abdullah-led emergency administration, the continuing failure to carry out the promised plebiscite, the outbreak of an armed resistance movement against Indian rule in 1989, and the ever escalating deployment of Indian armed forceson counter–insurgency duties against the civilian population, will undoubtedly weigh against India in any objective factual evaluation of the nature of its relationship with Jammu and Kashmir.

Legal scholar Eyal Benvenesti notes that there are “ample reasons” to apply the law of occupation to situations not encompassed by the “foreignness” or “enmity” of rival sovereign of states, arguing instead that the modern standard is one based on relationships and conflicts of interest between the administrations and the populations subject to their rule. Thus he argues any “exceptional regime” where one territory is subject to the control of another, no matter how “friendly” or “consensual,” creates a potential hostile environment and a vulnerable population, because it involves a departure from the universal human right of self-determination. Such a situation therefore warrants international scrutiny and is subject to the basic constraints of occupation law.

Effective Control

The idea of effective control or actual exercise of authority is at the heart of occupation law. The International Criminal Tribunal of Yugoslavia provided a useful checklist of the factual circumstances to determine the existence of ‘authority’ in the case of Naletilić & Martinović. According to the Court, (i) The occupying power must be in a position to substitute its own authority for that of the occupied authorities, which must have been rendered incapable of functioning publicly; (ii) The enemy’s forces have surrendered, been defeated or withdrawn. In this respect, battle areas may not be considered as occupied territory. However, sporadic local resistance, even successful, does not affect the reality of occupation; (iii)
The occupying power has a sufficient force present, or the capacity to send troops within a reasonable time to make the authority of the occupying power felt; (iv) A temporary administration has been established over the territory; (v) The occupying power has issued and enforced directions to the civilian population.

The Jammu and Kashmir Prince Regent Karan Singh’s royal declaration on 25 November 1949 that the Indian Constitution would henceforth govern the relationship between Jammu and Kashmir and India, was a public substitution of the authority of the lawful sovereign of Jammu and Kashmir with that of the Dominion of India. From the terms of the Instrument of Accession, which handed over legislative power over military affairs to India; to Article 370, that expanded the reach of the Indian state in breach of the terms of Instrument of Accession; to the subsequent tranche of Constitutional Orders that virtually overturned the original relationship enshrined in Article 370, and the Jammu and Kashmir Constitution, 1957 that accepted India’s territorial and political authority; it is clear that the India-Kashmir relationship is governed by a legal regime where effective control over Jammu and Kashmir—military, political and administrative—vests in New Delhi. All of the other elements, except (ii) (since the Maharaja’s forces were eventually subsumed within that of the Indian Army), have been quite clearly satisfied in the Jammu and Kashmir case.

Consequences

As I have suggested above all occupations are not unlawful. The purpose of occupation law is to ensure that the temporary authority of the occupying power is exercised in a way so as to protect the interests and rights of the ousted authority, and the people who live in the occupied territories. The law of occupation thus recognises that the occupying power is the temporary administrator or “trustee” of a territory and establishes a series of positive obligations towards the occupied population, its resources, and its institutions to ensure their survival for whenever sovereignty is eventually returned to them. The duties of the occupying power are spelled out primarily in the 1907 Hague Regulations (Articles 42-56) and the Fourth Geneva Convention (Articles 27-34 and 47-78)

Besides the usual prohibitions under the Geneva Conventions against torture, collective punishment, extra–judicial killings and other war crimes, these rules state that the occupying power must respect, as far as possible, the existing laws and institutions of the occupied territory. It is however authorized to make changes where necessary to ensure its own security and to uphold the obligation to restore and maintain public order and safety and to ensure orderly government. The occupying power cannot annex the occupied territory or change its political status; instead it must respect and maintain the political, legal and other institutions which exist in that territory for the entirety of the occupation. Through the years, India has been in violation of occupation law with regard to Kashmir in many respects. To name just a few: it has instituted fundamental legal and political changes in the region’s governing structures, it has acquired vast swathes of land through militarization and permanently altered such lands and other natural resources, and it is alleged to have carried out widespread and systemic human rights abuses, including torture enforced disappearances, extra–judicial killings, collective punishment, and sexual violence which are absolutely prohibited under international law and which amount to war crimes when they occur in the context of an armed conflict.

What do the new changes mean?

A wise Kashmiri journalist once quipped to me that when it is before the UN and international forums, India claims Kashmir is a “bilateral dispute”, when it is speaking to Pakistan it says Kashmir is an “internal matter,” and when it talks to Indians it claims Kashmir is not a dispute at all. The growing “internationalisation” of Kashmir, in the wake of the humanitarian and human rights crisis in the region since 5 August 2019, has been noted with shrill alarm from all quarters of the Indian political and media establishment. In the Public Interest Litigation (PIL) hearing on the constitutionality of the abrogation of Article 370 both judge and petitioner agreed that it was the internationalisation of Kashmir that was the real problem, rather than the suspension of civil liberties. But as this history demonstrates Jammu and Kashmir was and continues to be a matter of international law—a challenge to the laws of war, of nations, and our shared humanity. The permanent war and illegal ceasefire violations across the Line of Control that enacts an unending and unresolved Partition of the region, is not separable from the histories of coercive state formation and constitutionalism that deny the Jammu and Kashmiri people the right to self determination and/ or unification, and the brutal ‘internal’ repression of this sentiment over the last seven decades.

The territorial dissolution of Jammu and Kashmir state and the dismantling of the legal scaffolding of the India–Kashmir relationship is the attempted defacement of a stubborn legal trace of Kashmir’s refusal to remain domesticated. By its very existence and in its tenuous provisionality, Article 370 archived other histories, and foretold of other political possibilities, even as it foreclosed them. The changes in Jammu and Kashmir’s constitutional status and the annihilation of its territorial integrity through the J&K Reorganisation Act of 2019, have transformed the occupation, characterized by the de jure (in law) “temporary” suspension of Kashmiri sovereignty, into a permanent and irreversible annexation of its territory in law and fact. The legal fiction of special status is now legal history. While the nuts and bolts of everyday legalities may take time to work out, in the palaces of justice and the corridors of power, where the law lives out its sovereign lives, where peace and war are brokered and broken, there can be no mistaking the immanent violence of this unilateral change.