Kashmiris clash with Indian Forces after a curfew was lifted in Srinagar on 10 March 2019. A shutdown was enforced in and around the Old City to protest against the summoning of chief cleric Mirwaiz Umar Farooq in a terror funding case. Photo: Muzamil Mattoo / Nur Photo / AFP

On Monday, Article 370 of the Indian constitution, which granted special status to the State of Jammu and Kashmir, was removed by way of swift and ingenious legislative devices introduced by Home Minister Amit Shah before the upper house of the Indian Parliament. The removal of Article 370 was immediately followed by the introduction in the upper house (and passing) of the territorial bifurcation of the state.

The state of Jammu and Kashmir will henceforth be administered as a union territory, and the region of Ladakh will be carved out as another. Widely perceived by the supporters of the majoritarian government as re-integration of Kashmir to the Indian mainstream by denuding the state of its special status, the ruling Bharatiya Janata Party (BJP) is parading this as delivering on a long-standing electoral promise.

There has been a slow and painful extinction of a glorious principle that ties together the principle of center-state relations as prescribed under the Indian constitution: federalism.

Lessons from history

But first, reminded in part by the celebrations that followed in the rest of India of the purported “reclamation of Kashmir,” a few passages from the chapter on its accession from the late senior bureaucrat V P Menon’s often dry but almost purely factual The Story of the Integration of the Indian States comes to mind:

“On the other hand, the attitude of the Government of India on the question of accession had always been consistent. They held that where there was conflict between the ruler and the people on the issue of accession, the will of the people must ultimately prevail. That was the position taken up in Junagadh. In Kashmir, unlike Junagadh, the ruler’s decision to accede to India was supported by the premier political organization in the State – the National Conference.

“Nevertheless, the Government of India unilaterally announced that the people of Kashmir must decide their own fate after the tribal raiders have been driven out and law and order had been restored to normal. This was an offer by India to the people of Kashmir; Pakistan did not come into the picture.

“We had no territorial ambitions in Kashmir. If the invasion by the raiders had not taken place, I can say in the face of any contradiction that the Government of India would have left Kashmir alone. Indeed, Lord Mountbatten on his return to England publicly stated that he had, on the authority of the Government of India, informed the Maharajah that he was perfectly free to accede to Pakistan if he chooses to do so.”

There are historical and geographical reasons behind the inclusion of each of the provisions in Part XXI of the Indian constitution that confers varying special statuses to such states as Nagaland, Assam, Manipur, Sikkim, Goa and Karnataka, and until now Jammu and Kashmir.

For instance, the statement of Objects and Reasons that precedes the 13th Constitutional Amendment (1962), which introduced the provisions regarding special status of Nagaland, recorded that in July 1960 an agreement was arrived at with the leaders of the Naga Peoples Convention by the Government of India to form a separate state of Nagaland. This constitutes, as Menon puts it, a promise to the people of a territory that agreed to become part of the Dominion of India, sealed further by its inclusion in the constitution. These promises and its inclusion in the founding document is not merely a political expression, but the rules of engagement within the Union of India founded on a fundamental principle of federalism.

Article 3 of the Indian constitution vests with the Parliament the power to enact law for the purposes of formation of new states, alteration of areas, boundaries or names of existing states. The article itself contemplates a consultative process with the legislature of the affected states prior to such alteration of boundaries.

This requirement of consultation with these various states and the extent of such required consultations were subject matter of heated debate in the Constituent Assembly while discussing Articles 1-4, particularly the proviso to Article 3. This check to the otherwise unbridled power of the Parliament to dictate the internal make-up of the country was introduced in the Constituent Assembly by B R Ambedkar after a fervent speech by a representative from Bihar, K T Shah.

Shah, who unsuccessfully suggested the insertion of the word “Federal” in the Preamble to the Constitution, proposed a direct referendum and identified this as a matter of “fundamental principle” – that in a democratic regime, one must consult the peoples affected, and not merely lay it down from above. He further warned against leaving it entirely to the central government, as a majority (in the Parliament) “has not the monopoly of being always right, and still less to be always just.”

Ambedkar, after introducing this check to the draft Article 3 for obtaining the views of the affected states, informed the Assembly that before the exercise of alteration of boundaries of a state is carried out, the wishes of the state must be consulted.

The Indian Supreme Court has on many previous occasions and more recently in the famous Lieutenant-Governor of Delhi’s case (2018) engaged with federalism as being a basic feature of the constitution. The formulation of “collaborative” and “pragmatic” federalism, and consultation being at the heart of the terms of engagement between the states and the central government, was emphasized by a Constitution Bench of the court in a much-debated case between the federal and the state government.

The will of the people

With the advantage of this speck of history, both legal and regional, let us remember and assess the following bare facts. With effect from July 3, president’s rule, which was imposed on the then state of Jammu and Kashmir on June 20, 2018, was extended by the cabinet for another six months, which meant the state would not have a house of elected representatives for another six months.

Conspicuous by its absence is any consultation with the elected representatives of the people of the state of Jammu and Kashmir before such bifurcation, as mandated by the constitution. In the absence of an elected house of representatives in the state, no consultations were carried out in accordance with the checks provided in Article 3. Whether the perpetual continuation of president’s rule in a state to avoid requisite consultations with the state legislature amounts to perpetrating a fraud on the constitution is, at best, debatable.

The visible trend here seems to be that the unique federalist structure contemplated by India’s founders and affirmed by the statements of law from the Supreme Court may be given a go-by through a sinister synergy of executive opacity and legislative plenty. Certainly, the prime minister’s go-to phrase of “cooperative federalism” must mean more than a one-way street. The constitutionality and legality of the move aside, on a fundamental level, the lack of consultation with the affected population is a gross denunciation of federalist and democratic norms.

The story of Kashmir’s (the region) interaction with India is in large part a story of consultation with its people, or the lack thereof. There are several instances such as the Instrument of Accession signed by a Hindu ruler in a Muslim-majority state in the face of impending war in 1947; the popular discontent about rigging of the 1987 state elections; the continuing imposition of the draconian Armed Forces Special Powers Act (AFSPA) in the region; and now, the removal of Article 370.

The startling manner in which the most recent of the events have taken place – shrouded in secrecy and with absolutely no semblance of consultation – calls upon the rest of India not to ignore this merely as yet another Kashmir issue; the overstepping of a majoritarian government at the center to stifle federalism will eventually affect all.

The saying goes, a nation that ignores its history and geography does so at its own peril. The invitation here is to remain alert, observe, and remember.

Govind Manoharan is an advocate at Indian Supreme Court, currently on a break from practice as an LLM candidate at Harvard Law School.

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