In framing a government which is to be administered by men over men, the greatest difficulty lies in this: You must first enable the government to control the governed, and next, oblige it to control itself. The main purpose of the constitution is constitutionalism, the concept of limited powers. Constitutions are a social compact between the state and people. We need to ensure that the exercise of governmental powers should be controlled in order that it is not destructive of the values it was intended to promote. If the last century saw the death of God, currently we are experiencing the death of constitutionalism. The sudden abrogation of Article 370, like the imposition of Emergency in 1975, is nothing short of the sad demise of constitutionalism.
All societies are by nature authoritarian, and governments even more so, particularly if they have massive majorities in Parliament. Today most western constitutions, including that of the US, are only ostensibly about rights and limitations; in fact, they are about power and control. Article 370 was a shell that had long been emptied. The successive Presidential Orders issued under Article 370, in fact, gave special status to the Centre. So, what has been gained by its abrogation is not clear.
The state is a necessary evil and an instrument of exploitation in the hands of those in power. It can be termed as the march of God on earth when it operates within its allotted sphere and upholds people’s liberties.
Constitutionalism is the anti-thesis of authoritarianism. Having a constitution does not mean that we have constitutionalism as well. Several communist and Islamic countries had constitutions without constitutionalism. Hitler, too, had the Weimar Constitution. Constitutionalism tries to limit the power of constitutional authorities through doctrines such as rule of law which, as opposed to rule by law, ensures equality before law, equal protection of laws to all and non-arbitrary exercise of power. To ensure that too much power is not concentrated in one hand or organ, we have the doctrine of separation of powers between the three organs of state — the legislature, executive and judiciary. Distribution of powers ensures that the Centre does not become too powerful and power is shared with the states. Under asymmetric federalism, special status is given to some states due to peculiar historical and cultural factors to limit the power of the Centre in those states. All fundamental rights are negative restrictions on the power of the state. As the state enjoys monopoly of power, the greatest danger to fundamental rights comes from the state. Kashmiris, rather than getting personal liberties and freedom under Article 21 and freedom of speech and movement under Article 19, are experiencing detention and censorship. Even the Supreme Court does not see any urgency to guarantee these fundamental freedoms and has asked to wait for two weeks. Are we back to ADM Jabalpur (1975)? After the 44th constitutional amendment of 1978, rights under Article 21 are non-derogable and cannot be denied even during emergencies.
The opening words of our Constitution are “we the people”, not “we the government of India”. As the people’s representatives too may go against the Constitution, we have given the power of judicial review to constitutional courts to strike down a law if it violates the constitution and a constitutional amendment if it impinges on its “basic structure”.
The Instrument of Accession signed by Raja Hari Singh on October 26, 1947 and accepted by India on October 27, 1947 with a promise of plebiscite, was an exercise of limiting powers of the central government in respect of J&K. The framers of the Constitution incorporated these restrictions on the Centre’s powers in Article 370. Article 370 thus limited the power of the Centre by laying down that in extending central laws on matters provided in the Instrument of Accession, mere consultation with the government of J&K would be enough but on matters not conceded to the Centre by the Instrument of Accession, concurrence of the state government will be required. Article 370(3) further laid down that the President may, by order, modify this Article or order that it will cease to operate. But such an order could be issued only with the concurrence of the constituent assembly of J&K. After the dissolution of Kashmir’s constituent assembly on January 25, 1957, this option was no more available to the president. Ideally, the matter should have first been referred to the apex court for advisory opinion.
We have now used Article 370 to insert a new clause in Article 367 and then invoked this clause to convert the constituent assembly of Kashmir into a legislative assembly of a Union Territory. This is a blot on constitutionalism. Similarly, sounding a death knell to all principles of representative democracy, we have treated the governor as the government of the state. While governments represent the popular will, it is an open secret that governors are agents of the Centre.
Federalism is the basic structure of the Constitution and it means sharing of power between the Centre and states. Since the Kashmir assembly would have opposed bifurcation of the state into two UTs, we did not hold assembly elections along with Lok Sabha polls. Now currently the state is under President’s rule, and Parliament has exercised the powers of the assembly. This means we have gone against the spirit of the Constitution and made it a plaything.
The President of India, too, like Fakhruddin Ali Ahmad, has not kept in mind that he had taken an oath under Article 60 “to preserve, protect and defend the constitution”. He should have at least consulted the Attorney General and other experts before signing the orders and assenting to the J&K State Reorganisation Bill. Zail Singh did not sign the Postal Bill even though Rajiv Gandhi had 400 plus MPs in Lok Sabha.
Nobody has even bothered to examine the delicate international law angle in this controversy. The right of internal self-determination cannot be claimed by a minority in a country. But the denial of internal political freedoms may lead to a claim of external self-determination by secessionist elements. The UN High Commissioner for Human Rights in its 2018 and 2019 reports did recommend to us to “fully respect the right of self-determination of the people as protected under international law”. Keeping the intricate international dimensions in mind, PM Modi in his address to the nation spoke like a true statesman and assured Kashmiris about their political rights in electing their representatives.
The BJP has argued that Article 370 was temporary though the Supreme Court did not say so. Unlike Article 369 and SC/ST reservation in Parliament and assemblies, it did not mention any time limit. Having abrogated Article 370, we should forcefully defend our action. Our courts can examine the constitutionality of this abrogation but we cannot permit any other country to raise this issue. Gandhiji said the ends do not justify the means. Even conceding that the time for the abrogation of Article 370 had come, it could have been done in a more democratic and humane manner.
This article first appeared in the August 14 print edition under the title ‘The Constitution test’. Mustafa is vice-chancellor, NALSAR University of Law, Hyderabad. Jagteshwar Singh Sohi teaches at NALSAR University of Law.