The Government of India has repealed the core of Article 370 of the Constitution of India: a constitutional statute that grants special status to the state of Jammu & Kashmir (J&K) and shaped how the state joined the Union of India soon after independence. While there are legitimate grounds for critiquing Article 370, and exploring if both J&K and the rest of India would be better off by achieving a greater integration between the state and the rest of the country, the way it has been done is very troubling.
The heart of the ideal of constitutional democracy is violated by a constitutional amendment promulgated solely by executive order. Article 370 does give power to the President to declare that the article cease to be operative, but only after it has been recommended by the Constituent Assembly of J&K. The Constituent Assembly was dissolved in 1957, which left an ambiguity on whether Article 370 is temporary or permanent. The Supreme Court has ruled that since the abrogation of 370 has become an impossibility, although 370 is described as a temporary measure, it has now acquired permanent status. The Government’s sleight of hand to achieve the repeal of 370 is to interpret ‘Constituent Assembly’ as ‘State Assembly’, and since the State Assembly has been dissolved and the state put under President’s rule, the Governor of the state, being the current head of government, can authorise the President to issue the order to substantively repeal 370. The Governor is appointed by the government, so effectively the government is authorising itself.
This self-referential argument treats the Constitution very casually, disregarding the weight that should be given to democratic processes needed to evaluate any amendment to the Constitution. Add to this the massive army build up in the state before this announcement, the arrest of former Chief Ministers without any charge being filed against them (not even the claim that they had done anything illegal), and the suspension of telephone and internet services across the state. The resolution of the problems in J&K depends critically on winning the heart of the state’s citizens, building their faith in the Union of India, convincing them that any change is dedicated to acknowledging and catering to their democratic aspirations. This is unlikely given the way in which Article 370 has been demolished. Even if some way is found to eventually declare it as technically legal, the recent Presidential Order on Article 370 shows scant respect to the basic principles of constitutional democracy, has implications beyond J&K, and represents a dark day for India’s democracy.