Radha Kumar*
As one of the petitioners in the Article 370 hearings in the Supreme Court, I began by being hopeful in 2019. The way in which the union administration had hollowed out what remained of the Article after seventy-plus years had been shocking. Not only had a questionable allegation of security threat been used to cancel the Amarnath Yatra and send additional troops in, almost the entire political establishment in the valley – over 5,500 people – had been arrested and put in detention the day before the presidential orders were issued. Section 144 of CrPC was imposed and all communications were snapped. The state was more or less blacked out.
To a lay person like me, the constitutional questions these actions raised centered on three. First, how is it permissible for a union administration to alter the entire governing structure of a federating unit without consulting the affected people? Second, surely the President does not have the power to implement far-reaching political decisions under President’s rule? And third, can the Instrument of Accession stand if its core conditions are unilaterally abrogated?
Given this enormity of these questions, I initially believed that the court would surely grant some relief, if not all that we wanted. My first reality check came when we asked for a stay on implementation of the presidential orders and Reorganization Act until the court had ruled on our petitions. We were turned down. Despite the court’s assurance that ‘the clock can always be turned back,’ we knew that once created, facts on the ground cannot be easily reversed.
And they came thick and fast. First, the removal of Article 35A and the replacement of the State Subject law with a Domicile Certificate that opened the door for non-State Subjects to acquire property and other rights, a decision which affected Jammu more than the valley since most applications for Domicile Certificates were made and granted there. Then came the grant of retail, tourism and mining rights to national rather than local companies, which impacted both provinces. Then came purges of the government employees who were related to or had had any form of contact with suspected terrorists, which chiefly impacted the valley but also affected administrative, police and educational services overall. Then came the delimitation exercise, which weighted the Jammu vote over the valley vote but also divided Jammu’s assembly seats on communal lines. Media and activist intimidation continued, with routine arrests under draconian laws and regular impositions of Section 144 of the Indian Penal Code. Incidents of drug and domestic abuse shot up.
While these acts came in rapid succession, time dragged on hearing our Article 370 petitions. When three chief justices had come and gone, and the fourth finally announced hearing of our petitions four years after they were filed, I was filled with trepidation. Chances were, I thought, that the honorable judges had already made up their minds and the verdict would go against us. Most of the other petitioners felt the same way.
Yet we still hoped. The court might not support us on Article 370, we thought, but surely it would agree that the abolition of statehood was ultra vires Article 3 of the Indian Constitution. Hopefully, too, it would call for early elections. It did neither.
Instead, the Chief Justice stated that the five judges accepted the Solicitor General’s assurance that statehood would be restored ‘at an appropriate time’ and gave another ten months to the Election Commission to hold the Assembly election. None asked why statehood had been so long deferred given Home Minister Amit Shah’s repeated assurances, in 2019, 2020, 2021 and 2022. Indeed, none recorded the proposal floated in December 2019 by sources close to the home minister, that Jammu and Kashmir be given rights under Article 371, that provided special status to Nagaland and Meghalaya, or asked whether that was still feasible. As Justice Rohinton Nariman said, by not demanding the immediate restoration of statehood, the court had decided that the Union administration can act at will. He is, as it happens, the judge, who ruled in 2018 that Article 370 had acquired a permanent character by virtue of the passage of time. The present verdict inverted that logic to argue that since the article had been described as temporary for such a long time, it should go.
For me, the key issue then was what it is now – the people’s right to choose their governing structure. Article 370 enshrined the Instrument of Accession in the Indian Constitution and its elements were further incorporated into the Jammu and Kashmir Constitution, which was framed by an elected Constituent Assembly. As such, it could be held to represent majority public opinion, and Article 370 could not be abrogated without the Assembly’s concurrence. The court’s verdict has, however, inverted the function of this clause as a check on Union over-reach even more blatantly than it did with Article 3. Since the Constituent Assembly dissolved after adopting the Jammu and Kashmir Constitution, the judges hold, the President was free to abrogate Article 370 without consulting the people of the state or their elected representatives. This contortion, which uses a technicality to bypass the core democratic principle of ‘We, the people’, is quite simply breath-taking.
Soon after August 2019, People’s Democratic Party leader Mehbooba Mufti pointed out that under our new dispensation what was first tried in Kashmir was soon replicated in the rest of India. Within days of the court’s 370 verdict of December 11, increasing number of MPs began to be suspended from the Lok Sabha and Rajya Sabha. Their total has now reached 147; according to MP Derek O’Brien, they represent almost a quarter of the Indian people. Yet the Modi administration pushed through three far-reaching bills – rewriting the Penal Codes and on the appointment of Election Commissioners – when almost the entire opposition has been thrown out of Parliament. All three bills had been stringently criticized, for good reason. The former vitiated protections for dissenters, accused and/or undertrial prisoners. The latter eroded what little remained of the autonomy of the Election Commission.
With the court’s upholding of the wholesale violation of state’s and people’s rights, the Speakers’ erosion of Parliamentary democracy, and Parliament’s negation of the independence of electoral rights, does anything now remain of Indian democracy?
*Radha Kumar is the author of “Paradise at War: A Political History of Jammu and Kashmir”.
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