A challenge for the Indian Supreme Court

Removing the ‘special status’ of Indian-held Kashmir through a rushed presidential order is likely to create a constitutional challenge for the Indian Supreme Court in the face of pressure from India’s BJP government, which has hailed the move as a ‘historic moment’ to be ‘written with golden words in Indian history’.

Presidential Order CO 272 scrapes Article 370 from the Indian constitution, bifurcating the state into two union territories, namely Jammu and Kashmir (with a legislature) and Ladakh (without a legislature), whilst allowing a new wave of Hindu settlers to alter the demographic shape of Muslim-majority Kashmir. Consequently, all the privileges available under Article 35-A regarding the state’s own constitution, laws, a separate flag, and mandate to define status of ‘permanent residents’ stand removed.

Article 370 was enacted so that, whenever necessary, the president could apply the Indian constitution to the State of Jammu and Kashmir with the consultation [Article 370(1)(b)(i)] or concurrence [Article 370(1)(b)(ii)] of the state. Essentially, Article 370 granted a special autonomous status to Jammu and Kashmir and envisaged a distribution of power between the union and the State of Jammu and Kashmir.

Under this constitutional arrangement, matters of national importance (foreign affairs, defence, and communications) remained with the union while all other matters were left to the state. Consequently, the president could bring the provisions of the Indian constitution to bear on Jammu and Kashmir only with the ‘concurrence’ of the state.

Article 370 (3) authorizes the president to pass an order removing or modifying parts of Article 370. A proviso to Clause 3, however, states that the recommendation of ‘the Constituent Assembly of the State’ … shall be necessary before the president issues such a notification (order). The Constituent Assembly of the State of Jammu and Kashmir ceased functioning in 1957. In fact, the elected legislative assembly of the state was dissolved in November 2018, after the BJP withdrew from its state-level ruling coalition with a Kashmiri party known as the People’s Democratic Party or PDP (led by Mehbooba Mufti) in June 2018, and president’s rule was imposed in December 2018.

As such, we are left to understand that India’s president simply consulted with himself (acting as governor of the state) to issue the disputed presidential order. This might suggest that the dissolution of Jammu and Kashmir’s elected legislative assembly by a BJP-controlled central government and, then, the imposition of president’s rule, was colored by mala fide intentions.

President’s rule may be imposed in a state when the constitutional machinery of that state breaks down. President’s rule continues until the elected government is restored. Decisions of a permanent character, such as changing the ‘special status’ of a state itself, without the ‘concurrence’ of the state’s elected legislative assembly, is inherently flawed and unconstitutional. With respect to fundamental constitutional changes requiring the ‘concurrence’ of the state, a governor acting for the central government cannot substitute for an elected state-level government.

The Indian constitution does not allow variations in the territory of a state without the ‘concurrence’ of the elected state assembly. In effect, the president’s order amounts to a scam on democracy, a fraud on the Indian constitution, and an affront to the people of Jammu and Kashmir. It also makes a mockery of the UN Security Council Resolution of 1948, which mandates a plebiscite in Jammu and Kashmir to decide the contested status of the State.

The International Commission of Jurists (ICJ) says: “The Indian government’s revocation of the autonomy and special status of Jammu and Kashmir violates the rights of representation and participation guaranteed to the people under the Indian constitution and in international law”, calling the president’s order “a blow to the rule of law and human rights in the state and in India”.

Under the present circumstances of state-level government-by-the-centre in Indian-held Kashmir, the Indian Supreme Court is likely to be confronted with a question of profound importance for democracy in India and around the world: can a head of state ‘consult’ [Article 370(1)(b)(i)] and ‘concur’ [Article370(1)(b)(ii)] with himself to amend a country’s constitution?

According to ICJ Secretary-General Sam Zarifi, “the legality of the Indian government’s measures to eviscerate Article 370 [and 35-A] will certainly be tested before the Indian judiciary…”. Hopefully, the Indian Supreme Court will set aside the presidential order saying that state elections are necessary before 'consultation' and 'concurrence' with an (elected) state government can be said to have taken place. But, even if the Supreme Court says this, the BJP may simply turn to a fresh delimitation of constituencies (partisan gerrymandering) or an increase in the number of state-level legislative assembly seats to alter the state’s electoral arithmetic. The U.SSupreme Court recently upheld the constitutionality of partisan gerrymandering in the United States, indicating that, rather than constitutional litigation, citizens should mobilize politically to promote independent non-partisan mechanisms for delineating State-level electoral constituencies (Rucho v Common Cause, No. 18-422). How will the people of Kashmir, and the Indian Supreme Court, respond to similar concerns?

The Indian Supreme Court is likely to play a critical role in the unfolding constitutional crisis presented by the Indian president’s act of removing the ‘special status’ of Jammu and Kashmir. Will the court uphold constitutionalism and protect the ‘special status’ of Kashmir against the might of the BJP government? The president’s revocation of the state’s ‘special status’ seems incompatible with a 2017 judgment of the Court [2 Supreme Court Cases 538] in which ‘concurrence’ of the State of Jammu and Kashmir was said to be required for the president to make any status changes. All eyes are now focused on the wisdom of India’s respected court.

In the given circumstances, however, Pakistan should also raise this issue before the relevant international forums as it is not merely a constitutional catastrophe in India but also a sheer violation of UN Security Council Resolution of 1948 and international law. It must be taken as an immediate concern of regional peace and international security.

The writer is a lawyer.

Email: zranjahlaw@gmail.com