By Shobha Aggarwal
This was the most unkindest cut of all;…O, what a fall was there, my countrymen! Then I, and you, and all of us fell down,Whilst bloody treason flourish’d over us.– Shakespeare’s , “Julius Caesar” 1599
On 5 August 2019 the Indian government modified Article 370 of the Constitution of India and scrapped the special status granted to the then State of Jammu & Kashmir (J&K). The Jammu and Kashmir (Reorganisation) Act, 2019 which provided for the bifurcation of the State of J&K into the Union Territory of J&K and Union Territory of Ladakh was also passed by the Parliament. This was the first time in the history of independent India that a State was downgraded to a Union Territory. It dealt a body blow to federalism in India.
A lot has been written on the Presidential Order C.O. 272; Presidential Order C.O. 273 and The Jammu and Kashmir (Reorganisation) Act of 2019. But the precursor of all this was the Proclamation by the President of India vide G.S.R. 1223(E) dated 19th December 2018 imposing President’s rule in Jammu & Kashmir which was extended on 03.07.2019. Para (c)(ii) of the said Proclamation inter alia stated:
“the operation of the following provisions of the Constitution and of the State Constitution is hereby suspended, namely:–– “So much of the first proviso to Article 3 of the Constitution as relates to the reference by the President to the Legislature of the State and the second proviso to that article; …” [Emphasis provided]
First Proviso to Article 3
Article 3 of the Constitution of India relates to “Formation of new States and alteration of areas, boundaries or names of existing States.” First Proviso to Article 3 states:
“Provided that no Bill for the purpose shall be introduced in either House of Parliament except on the recommendation of the President and unless, where the proposal contained in the Bill affects the area, boundaries or name of any of the States [***], the Bill has been referred by the President to the Legislature of that State for expressing its views thereon within such period as may be specified in the reference or within such further period as the President may allow and the period so specified or allowed has expired.” [Emphasis provided]
Second Proviso to Article 3
The second proviso in the President’s Proclamation of 19.12.2018 refers to The Constitution (Application to Jammu and Kashmir) Order, 1954, C.O. 48 which adds the following proviso to Article 3 of the Constitution of India:
“Provided further that no Bill providing for increasing or diminishing the area of the State of Jammu and Kashmir or altering the name or boundary of that State shall be introduced in Parliament without the consent of the Legislature of that State.” [Emphasis provided]
The Kingpin Provision
As earlier proclamations imposing President’s rule in Jammu and Kashmir included similar provisions, suspension of these did not invite any scrutiny this time also. Para (c)(ii) of the Proclamation remained unchallenged in a court of law all these months. But it is the kingpin provision which formed the basis of The Jammu and Kashmir (Reorganisation) Act of 2019 as the requirement of both the reference by the President to the legislative assembly of the State in first Proviso and the consent of the Legislature of the State of Jammu and Kashmir in the second Proviso were suspended. The conspiracy to do what got done in the first week of August, 2019 was hatched at least nine months back; the government laboured hard to keep it a secret; and then dropped the bombshell. With hindsight one wonders what if the validity of Para (c)(ii) of the Proclamation had been challenged in the Supreme Court earlier? Could it have back-footed the Government? Could it have helped change the course of events in August, 2019?
A year later, the slide continues
One year passed since the right wing Hindutva forces in power at the centre – which thrives on ruling by shock and awe – betrayed the people of Kashmir. In the aftermath of the events on 5 August 2019 and with the entire valley locked up and all the leaders arrested (many are still under detention) the only hope left at that time was from the judiciary. Soon many petitions were filed in the Supreme Court which inter alia included several habeas corpus petitions, challenge to curbs on media freedom as well as challenge to the constitutionality of the Presidential Orders C.O. 272 & C.O. 273 (POs) and The Jammu and Kashmir (Reorganisation) Act of 2019 (the 2019 Act).
Justice so far has eluded the people of Kashmir with the courts and other statutory bodies working in tandem with the Central Govt. The judiciary is openly and without pretense deferring to the wisdom of the executive. The Supreme Court (SC) has delved in detail on diverse issues relating to fundamental rights, media curbs etc. in its orders without giving any tangible relief to the people of Kashmir. The near total alienation of the people of Kashmir has been lost sight of.
Beyond Kafkaesque-ism
In the cases relating to the freedom of the press three judges of the SC passed a 130-paged judgement on 10 January, 2020. The judgement was passed after the publication of newspapers had resumed and only laid down future guidelines. The SC could not even get the government to produce all the orders passed curbing the freedom of the press. Even though it held that the government’s stated “difficulty in producing all the orders before this Court … is not a valid ground to refuse production of orders before the Court”. It did not castigate the government on non-production of orders thus allowing it to erode the authority of the SC. The presumption when the documents are not produced before a court is the non-existence of such documents. But the SC does not presume it because if it did then the inevitable conclusion would follow that verbal orders were being given by those in authority to put curbs on the fundamental rights of the people of J & K in violation of all laws. The government was saved this embarrassment. The SC held:
“As all the orders have not been placed before this Court and there is no clarity as to which orders are in operation and which have already been withdrawn, as well as the apprehension raised in relation to the possibility of public order situations, we have accordingly moulded the relief in the operative portion.”
In Kafka’s ‘The Trial’ Josef K., the protagonist never gets to see the charges framed against him even up to the point of being executed! In the Kashmir petition – forget the petitioners – even the judges never got to see all the orders of the government about which the judgement was passed!! In the good old days (2014 to 2019) the Union of India used to hand over ‘relevant’ information to judges in sealed cover; that era is now passé!!!
Turn the clock back …
On 02 March 2020 a five judge Constitution bench of the SC decided that it need not refer to a larger bench the petitions challenging the constitutionality of the POs & the 2019 Act. Earlier on 1 October 2019 the SC declined to stop the Centre from carving out two centrally-administered union territories out of Jammu and Kashmir orally saying that it could always “turn the clock back”. A reasoned written order declining stay on the 2019 Act which came into effect on 31 October, 2019 was never passed – effectively preempting its challenge!
(but) … within the domain of our country
On 29 July 2020 a three judge bench of the Supreme Court presided over by Justice Sanjay Kishan Kaul allowed conditional release of Mian Abdul Qayoom, President of J & K High Court Bar Association, who had been in jail since August 2019. The release order does not examine the “legality and validity of the impugned judgments” of the High Court of J & K denying him bail! The order was passed after the government agreed to release him on certain conditions. Be that as it may, more alarming is the obiter dicta in the order which states:
“Before we part with the matter, we must say that Kashmir has been a troubled area. Nature has been very kind to the place. It is the human race which has been unkind. It is time for all wounds to be healed and look to the future within the domain of our country. We are sure that the petitioner will also adopt a more constructive approach to the future and the Government will consider how to bring complete normalcy at the earliest.”
No resistance – from judiciary to executive onslaught even three years later
The Kashmir petitions were not listed for hearing after 2 March 2020 when a five judge constitution bench of the Supreme Court declined to refer the petitions to a larger bench. Since then the matters were mentioned before the Court many times for urgent listing but not taken up.
In the meanwhile many administrative, executive and legislative steps have been taken by the Government of India in J&K which will in times to come change the whole ethos of Kashmir society. On 13 February 2023, a division bench of the SC presided over by S.K. Kaul, J. dismissed a challenge to the constitution of the Jammu and Kashmir Delimitation Commission to readjust constituencies in the new Union Territory. This was an opportunity to at least freeze the clock if not turn it back. Was this a signal to the people of Kashmir that the Supreme Court will not adjudicate the constitutionality of the abrogation of Article 370 and bifurcation of the state of Jammu and Kashmir as it is a hard case to decide and that it will simply shove the matter under the carpet till such time that the legality and constitutionality of these actions become academic? If the Supreme Court had the will to decide the Kashmir petitions it could have done that any time.
In fact “eleven different cases were heard and disposed off through virtual hearings by a constitutional bench constituted during COVID-19 times, …” (The Wire, 25.05.2022)
If the Kashmir petitions were to be decided as per law and constitution the people of J&K are likely to get justice. In my humble opinion the SC judges – if they adjudicate the petitions will have no option but to strike down the Presidential Orders abrogating Article 370 and The Jammu and Kashmir (Reorganisation) Act of 2019. If not, the future historians may compare them to the judges in the ADM Jabalpur case (1976) wherein the Supreme Court of India abdicated its constitutional mandate to protect the fundamental rights of the citizens of India.
Will the Supreme Court “Turn the Clock Back” on Kashmir?
Finally on 5 September 2023 the Supreme Court of India reserved its verdict on the Kashmir petitions after hearing long arguments for 16 days. The case itself was titled “In Re: Article 370 of the Constitution.” At stake is more than the issues outlined in the arguments. At stake is the credibility of the Supreme Court of India, at stake is a people’s faith in judiciary, at stake is the concept of justice itself.
Persuasive arguments were addressed from all sides in the Supreme Court. The history of Kashmir’s accession to India was dissected in minute details. But beyond the legal technicalities and niceties there is no doubt that the events that took place in 2019 were a fraud on the Constitution of India. The State of Jammu and Kashmir was dismembered by stealth without consulting its people. It was a stab in the back. The voice of Kashmiris was silenced and still continues to be silenced. Even if the Supreme Court of India believes that in a democracy people’s voices are heard through elected representatives – as it indicated during the hearings – there were no such elected representatives during the relevant period as the Jammu and Kashmir Assembly stood dissolved for a year or so.
The Supreme Court is required to adjudicate the issues within the Constitutional framework and the historical context in which Art. 370 was introduced in the Constitution of India. It should do that even if the end result is that the Government of India overrides the judgement immediately with an ordinance as it did recently by promulgating the Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023 superseding the Supreme Court judgement which handed over the control of services to the elected government in Delhi.
The Supreme Court judges should show the courage and gumption to do the right thing as was done in R.C. Cooper vs. Union of India (bank nationalization case, 1970). The then SC judges went against the powers that be and struck down the process of nationalizing 14 private banks. The Constitution (Twenty-Fifth Amendment) Act, 1971 was passed by the Parliament to nullify the effect of the judgement in R.C. Cooper. But the judgement itself is one of the most important post-independence judgement of the Supreme Court as it upheld individual rights by a majority of 10:1. Ten judges opined against the government, only one stood by the government’s position. This paved the way for the right to privacy to be declared a fundamental right about five decades later in Justice K.S. Puttaswamy (Retd.) vs. Union of India (2017). Even though I support bank nationalization I am also in agreement with the judgement in R.C. Cooper as it upheld the constitutional principles and did away with mutual exclusivity of the Fundamental Rights from one another as was held earlier in the case of A. K. Gopalan vs. State of Madras (1950).
The Supreme Court in Kashmir petitions should adjudicate like it did in R.C. Cooper and not abdicate its responsibility by upholding majoritarian views over the laws of the country like it did in the Ram Mandir judgement by basing it on Hindu belief rather than law. And if it has to do the latter then the belief of people of Kashmir is the only thing that matters. The majoritarian feelings of the rest of India are inconsequential to the issue at hand.
The inordinate delay in hearing the Kashmir petitions and the queries raised by the judges during the hearing raises concern that the Supreme Court would rather arbitrate or mediate the issues instead of adjudicating. This does not bode well for the federal and democratic structure of India if a central government in power with brute majority can downgrade a state into union territories and disenfranchise its people. The Supreme Court as the guardian of the Constitution of India should ensure that constitutional values and morality supersedes all other considerations; status quo ante as on 05.08.2019 should be restored without fear or favour. And if that is not done it would be the death of federalism in India. The 2019 Kashmir template will govern the future center state relations in India.
The Judgement Day
Were the Supreme Court judges to pronounce a judgement in favour of the Government of India it would be difficult for 7 million Kashmiris to come to terms with it; the issue of souls of thousands upon thousands of Kashmiris killed for Azadi must be remembered as also the thousands of imprisoned Kashmiris in and outside Kashmir. To reconcile to these issues one would need to remember what M.K. Gandhi wrote in his letter to all the Britons (Harijan, 6-7-1940):
“You will give all … but neither your souls, nor your minds.”
Gandhi’s advice was in the context of Hitler’s army invading Britain even as Britons were urged to resist non-violently.
Epilogue:
After the judgement delivered by the Supreme Court on 11 December 2023 people in Kashmir would need to remember M.K. Gandhi’s advice.
[Shobha Aggarwal is an independent legal researcher, advocate, Delhi High Court; activist, feminist, has had a brush with socialism. She has authored the path-breaking report “The Public Interest Litigation Hoax in India – Truth Before the Nation” published in 2005 which stays uncontested till date. She has done the ‘Advanced International Study Program in Peace and Conflict Transformation’ from the European University Center for Peace Studies, Austria.]