India is widely seen as a federal democracy. However, the BJP’s recent move to scratch the special status of Jammu and Kashmir 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 criticised 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, the former princely states had an option of either joining Pakistan or India, or remain 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 authorised to make laws as to the defence, external affairs and communication with the consultation of the State. However, 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 privileges previously available to Jammu and Kashmir 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.
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”
Within the Indian constitution, subclause 1-d of Article 370 stated that:
“Notwithstanding anything in this Constitution, such of the other provisions of this Constitution shall apply in relation to that State [i.e. Jammu and Kashmir] subject to such exceptions and modifications as the President may by order specify:
Provided that no such order which relates to the matters specified in the Instrument of Accession of the State [i.e. that Instrument of Accession after the Partition of 1947] referred to in paragraph (i) of subclause (b) shall be issued except in consultation with the Government of the State:
Provided further that no such order which relates to matters [i.e. changing status and territorial boundaries of State) other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government.”
At the same time, however, Article 370 (3) said that:
“Notwithstanding anything in the foregoing provisions of this Article, the President may, by public notification, declare that this Article shall cease to be operative […]:
Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.”
The president’s notification on August 7 clearly stated that:
“In exercise of the powers conferred by clause (3) of Article 370, read with clause (1) of Article 370 of the Constitution of India, the President, on the recommendation of Parliament, is pleased to declare that, as from the 6th August 2019, all clauses of the said Article 370 shall cease to be operative except the following which shall be read as under, namely:
“All provisions of this Constitution, as amended from time to time, without any modifications or exceptions, shall apply to the State of Jammu and Kashmir notwithstanding anything contrary contained in Article 152 or Article 308 or any other Article of this Constitution […].”
To clarify, Articles 152 and 308 of the Indian constitution defined an Indian “state” as excluding the State of Jammu and Kashmir, because that particular state had been treated separately according to Article 370, which specified the procedures whereby the constitution’s provisions might be extended to Jammu and Kashmir.
On August 7, however, the President of India “on the recommendation of Parliament” (note: this parliament is overwhelmingly dominated by India’s Hindu-nationalist BJP in the wake of India’s recent elections) has deprived the State of Jammu and Kashmir of its ‘special status’ in order to bring Jammu and Kashmir under a uniform constitutional definition of “State.”
In India, the procedure for amending the text and substance of India’s constitution is clearly spelled out in the constitution itself: Article 368. India’s Supreme Court has also described Indian ‘federalism’ as being part of what the court describes as the constitutions underlying “basic structure,” the substance of which even a parliament following the procedures laid out in Article 368 is not empowered to abrogate.
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 Jammu and Kashmir 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 2018—a number of questions have emerged regarding the meaning of terms like “consultation” or “concurrence” in the context of Jammu and Kashmir.
Jammu and Kashmir’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 in several important judgments: Prem Nath Kaul v. State of Jammu & Kashmir (1959), Sampat Prakash v. State of Jammu & Kashmir (1969); State Bank of India vs. Santosh Gupta (2017), Kumari Vijayalakshmi Jha vs Union of India (2017).
It may be that, bypassing the Constituent Assembly (or the Legislative Assembly) of Jammu and Kashmir, 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 of Jammu and Kashmir 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 maneuvered 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.
Clause 4 states that: “In proviso to clause (3) of Article 370 of this Constitution, the expression ‘Constituent Assembly of the State’ referred to in clause (2) shall read as ‘Legislative Assembly of the State.’”
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 Jammu and Kashmir Legislative Assembly. But, if this happens, the BJP will probably attempt to change the electoral arithmetic of the State (for example via communal or partisan gerrymandering in the course of its constituency delimitations) 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 a Constituent Assembly in Jammu and Kashmir and, since the summer of 2018, in the absence of a state-level Legislative Assembly, the president of India acting as the current “government” of Jammu and Kashmir seems to have used his powers in a colorful manner earlier this month, effectively concurring with himself to play havoc with India’s Constitution and, for that matter, several 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 Jammu and Kashmir and unilaterally downgrading its status from that of a state to that of a union territory even while the state was placed under Governor’s rule amounts 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