India is widely seen as a federal democracy. However, the BJP’s recent move to scratch the ‘special status’ of Jammu and Kashmir (State) by removing Article 370 from the Indian constitution whilst simultaneously changing Jammu and Kashmir from a ‘state’ into two ‘union territories’ (Ladakh, without a legislative body, and Jammu and Kashmir, with a Legislative Assembly), call this familiar claim into question.
The BJP’s move has been criticized by the International Commission of Jurists (ICJ); indeed, India’s own constitution and the judgments of its Supreme Court raise several important questions about the constitutionality of the government’s recent move.
After the partition of the Subcontinent, the former princely states had an option of either joining Pakistan or India or remaining independent. The ruler of the State of Jammu and Kashmir, Maharaja Hari Singh, joined India through the Instrument of Accession on October 27, 1947 under the Indian Independence Act 1947. The Dominion Legislature of India was authorized to make laws as to defence, external affairs and communication with the consultation of the state. However, the Maharaja retained his sovereignty and discretion as to the acceptance of any future constitution of India. This arrangement was incorporated in Article 370 of India’s constitution and reflected in the constitution (Application to Jammu and Kashmir) Order(s) of 1950 and 1954 passed with the approval of the State’s Constituent Assembly. The BJP government, however, has abrogated this arrangement through the Constitution (Application to Jammu and Kashmir) Order 2019.
By the presidential order, all the privileges previously available to the state under Article 370 – the state constitution, laws, flag, and mandate to define who counts as a ‘permanent resident’ of the state (particularly for the purpose of buying land as per Article 35-A) – have been removed. Kashmir’s new constitutional scheme is expected to encourage an influx of property owners from outside the region, greatly altering the demographic shape of what had been a Muslim-majority state.
Subclause (1)(d) of Article 370 stated that the president may specify by order which provisions of the India’s constitution shall apply to the state. A proviso to Article 370 states that such order which relates to the matters specified in the Instrument of Accession of the State (Instrument) shall be issued with the ‘consultation of the state’. The proviso further states that such order relating to the matters not specified in the Instrument shall be issued with the ‘concurrence of the state’. At the same time, however, Article 370 (3) and its proviso authorize the president to declare this article inoperative ‘with’ the recommendation of ‘the constituent assembly of the state’.
The president, therefore, “on the recommendation of parliament” (clearly bypassing the mandatory requirement of the recommendation of the constituent assembly of the state) declared that as from August 6, 2019, Article 370 shall cease to be operative. Thus, the president has applied India’s constitution ‘without any exception’ to the state. It has deprived the people of Jammu and Kashmir of their right to self-determination, constitution, state’s special status and sovereignty.
The procedure for amending the text and substance of India’s constitution is clearly spelled out in the constitution itself: Article 368. The Indian Supreme Court has also described Indian ‘federalism’ as the “basic structure” of the constitution, the substance of which cannot be abrogated even by parliament following the procedures laid out in Article 368 [the Kesavananda Bharati case (1973)].
The text of Article 370 would appear to state that the BJP cannot remove Article 370 before “consultation” with, and indeed without the “concurrence” of, the state’s constituent assembly. In the absence of the erstwhile Maharaja of the state and his government – indeed, following the dissolution of the state’s constituent assembly in 1957 and, indeed, after the outright dissolution of the state’s legislative assembly following the imposition of governor’s rule in 2018 – a number of questions have emerged regarding the meaning of terms like “consultation” or “concurrence” in the context of Jammu and Kashmir.
The state’s constituent assembly ceased functioning in 1957 without providing whether Article 370 would continue to operate. However, the State’s Constituent Assembly did not abolish Article 370, and since then the Indian Supreme Court has appeared to endorse the view that Article 370 has remained an active part of the Indian constitution [State Bank of India v Santosh Gupta (2017)].
It may be that, bypassing the constituent assembly (or the legislative assembly) of the state, the BJP’s recent move challenges the procedures required to amend, abrogate, or remove Article 370. It may be that the BJP’s recent move challenges the procedures required to amend India’s constitution itself (as per Article 368). Indeed, even if those procedures could be said to have been followed, it may be that the BJP’s unilateral removal of Article 370 and, more importantly, its unilateral redefinition of the state as a ‘union territory,’ challenge both the definition and the practice of Indian federalism, effectively abrogating something the Indian Supreme Court has long described as an essential feature of that country’s constitution.
The BJP, however, in its recent move, appears to have manoeuvred around the first set of concerns by replacing – again by presidential order (circumventing the normal procedure for amending the Indian constitution (Article 368) – the term “constituent assembly” with the term “legislative assembly” adding Clause 4 to Article 367 of the Indian constitution.
This is an important change. It could mean that, even if the Supreme Court of India holds that India’s president cannot unilaterally change the territorial boundaries of India’s federating units without the “concurrence” of the affected unit (and, in most cases, the legislative assembly of that unit), then the BJP government will be forced to allow the election of a new legislative assembly.
But, if this happens, the BJP will attempt to change the electoral arithmetic of the state (partisan gerrymandering) to ensure a majority in the state’s legislative assembly for the Hindu-nationalist BJP. In other words, even if the Supreme Court challenges the BJP’s recent move, the goal would be to pave the way for a dramatically refashioned Jammu and Kashmir “legislative assembly” that would provide the “concurrence” needed to approve the BJP’s removal of Article 370.
In the absence of states’ constituent assembly – and, since the summer of 2018, in the absence of a legislative assembly – the president of India acting as the current “government” of the state seems to have used his powers in a colourful manner, effectively concurring with himself to play havoc with India’s constitution and, for that matter, previous judgments of India’s Supreme Court. The ICJ termed the BJP’s alleged constitutional move as “a blow to the rule of law…in India”.
It may be argued that unilaterally removing the ‘special status’ of the state and unilaterally downgrading its status from that of a ‘state’ to a ‘union territory’ – even while the state was placed under governor’s rule a– mounts to abrogating the basic structure of Indian federalism. The BJP’s recent move is not a simple modification of the state’s status; it is a radical transformation. It defies India’s own constitutional logic to believe that the president alone might be allowed, in India’s federal polity, to amend (constitutionally) the ‘territorial limits’ of its federating states.
The redefinition of the State of Jammu and Kashmir without the full and active “concurrence” of the state’s constituent assembly (or even its legislative assembly) amounts to assaulting the terms of Indian federalism – a basic feature of India’s constitution. Any Supreme Court decision upholding this move would shatter the existing terms of Indian federalism, destroy the esteem of the court, and foreshadow considerable anxiety in India’s other federating units.
The writer is a lawyer.
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