A Constitution bench of the Supreme Court is set to hear in October a batch of petitions challenging the constitutional validity of the Modi-Shah gamble in Kashmir. Substantial questions of law premised on the first principles of constitutionalism arise, which will need to be addressed by the Court.
The essence of the petitioner’s case is that the disheveling of Article 370 is an assault on the nation’s asymmetrical federalism that recognises India’s pluralism and diversity. The decision is seen as the negation of a solemn historical obligation to the people of Kashmir codified in the Instrument of Accession. It is contended that Clause (3) of Article 370 cannot be used to emasculate the constitutional guarantee now deemed permanent. The critics argue that the sovereign power to reorganise states cannot be an instrument for diminution of the status of states, considering the federal nature of our polity — a non-negotiable component of the basic structure of the Constitution. A core legal objection is about non-endorsement of the Union government’s unilateral decision by elected representatives of the people, whose will, it is contended, cannot be substituted by the governor, acting as representative of the central government. The curtailment of civil liberties and denial of the citizens’ right to communicate are seen as a frontal assault on our Constitution. The Kashmir move can be critiqued, as Christophe Jaffrelot wrote in this newspaper, as “a turning point towards the making of an ethnic unitary state”, infracting the basic structure of the Constitution.
The contra arguments advanced in defence of the decision are not without their appeal. In a valiant defence of the decision, Home Minister Amit Shah invoked social and economic justice, the principle of gender equality and hope for peace and progress in the state through the devolution of full benefits of development to the Kashmiri people, in pursuance of the constitutional guarantee of equality under Article 14. It is asserted that the time has come for Kashmiris to enter into a new national pact to strengthen the edifice of peace and local democracy in the state.
This situation requires the court to give meaning to the Constitution in new settings as society changes. The significance of the content of the Constitution, it is argued, varies from age to age. Succeeding generations must discover the way forward in the image of their own experiences, without the shackles of history. The government contends that Article 370 is expressly stated to be a temporary constitutional measure, whose applicability and use is essentially a function of the government’s evaluation of its efficacy in a given context. The Court will be cautioned against entering into the “political thicket” citing absence of “judicially manageable standards”. The government may also argue against the “absolutism” of rights and contend that constitutional adjudication is essentially about balancing and proportionality.
Given the prevailing national mood, the “historical unacceptability of originalism” as a mode of constitutional interpretation has a seductive appeal. The Supreme Court has repeatedly cautioned against the danger of stultifying the spirit of the Constitution by static judicial interpretation (Puttaswamy 2017, Navtej Johar 2018 et al). In Puttaswamy, the Court said: “The interpretation of the Constitution cannot be frozen by its original understanding. The Constitution has evolved and must continuously evolve to meet the aspirations and challenges of the present and the future.”
The uncertainty of any legal challenge notwithstanding, it seems that the decisive battle between the contrary narratives on Kashmir will not be fought in court rooms or in the drawing rooms of Lutyens Delhi. And history beckons us all to accept that those who feel robbed of their dignity cannot be tamed forever by a muscular state. As Francis Fukuyama writes in a recent work, “a humiliated group seeking restitution of its dignity carries far more emotional weight than people simply pursuing their economic advantage”. The challenge before the government, therefore, is to win an uncoerced allegiance of the Kashmiri people by recognising their dignity and identity — the “ultimate driver of history”, as Hegel said. Whether the government can do enough to assure the Kashmiri people of its sincerity in this regard is the question.
This article first appeared in the print edition on September 10, 2019 under the title “Kashmir, beyond legalities”. The writer is former union minister of law and justice. Views expressed are personal