I. INTRODUCTION
This title is not original. An essay with the same title by the late renown jurist and humanist Charles Henry Alexandrowicz, was published sixty-five years ago in the International & Comparative Law Quarterly. In that essay, Alexandrowicz defended the federalist credentials of the then new India Constitution against the charge by Kenneth Wheare that it was in fact a quasi-federal constitution. It is interesting that the controversy even arose at all because neither “federalism” nor “federation” appears anywhere then or now in the India Constitution (and even the adjective “federal” appears only in the name “Federal Court”). Although none of these words is found anywhere in the United States Constitution either, “federalism” was not yet a word in the English language in the 18th Century. We get a glimpse of the state of the language from the 8th edition of Dr. Johnson’s Dictionary of the English Language published in 1799, barely a dozen years after the United States Constitutional Convention. While “federal” had not yet acquired its present usage for a political concept, neither “federation” (there was “confederation”) nor “federalism” yet existed in the English language. It is with this limitation of language that that the United States Constitution was written. August 15 was India’s 72nd independence anniversary. This year’s will be remembered for three closely choreographed events of the preceding week. On August 5, President Ram Nath Kovind, on the advice of the Prime Minister, revoked The Constitution (Application to Jammu and Kashmir) Order 1954. The following day, with the consent of parliament, he abrogated the application of Article 370 of the constitution. On the same day parliament passed the Jammu and Kashmir Reorganization Act, No. 34 of 2019, which summarily stripped Jammu and Kashmir of its seventy-two-year-old autonomous status as a state in the Indian federation and severed the districts of Kargil and Leh to constitute an autonomous territory to be known as Ladakh. Both Ladakh and the remnant of Jammu and Kashmir became separate Union Territories, although the latter will retain its legislative assembly. Almost at the stroke of a pen, as it were, India changed from a federation of 29 states and 7 union territories the previous day to a federation of 28 states and 9 union territories. The last time there were 28 states was before the creation of Telangana in June 2014.
In this short essay, I shall briefly review the constitutional, political and historical background to and effect of this development. In the final sections of the essay I shall, in highlighting some legal, political and diplomatic consequences of the revocation of Article 370 of the India Constitution, suggest that exploitation of the resurgent Hindu nationalist ideology Hindutva by politicians is a clear and present danger to the communal harmony carefully balanced by the founding fathers of modern India.
II. PARTS XI AND XVIII OF THE CONSTITUTION
The Indian Home Minister, Amit Shah, gave assurance that the degradation of Jammu and Kashmir from a state to a Union Territory was a “temporary measure.” Nonetheless, the ability of the centre to take such extraordinary unilateral action is a measure of the strong centripetal current flowing through the Indian constitution. To understand this, it is necessary to go back seven decades to the writing of the Indian constitution. “The founding fathers and mothers,” observed Granville Austin, “produced a constitution with a unitary tone and strong centralizing features. …[The] provisions for centre-state relations clearly gave the central government strong influence or dominance.” It is necessary to recall the sentiments that dominated the India Constituent Assembly. It has been observed by its chronicler that, that the constitution adopted was not even more centralized was “only because of an overriding desire to secure the co-operation of the Muslim League.” When its work was done, the closing speech of the president of the Constituent Assembly, Rajendra Prasad, is telling, “I do not attach any importance,” he said, “to the label, whether you call it a federal constitution or a unitary constitution or by any other name….it makes no difference so long as the Constitution serves our purpose.” Parliament, at the centre, was empowered to create new states, abolish existing ones or alter their boundaries. It also had the power to amend most provisions of the Constitution without the concurrence of the states. State governors are appointed by and serve at the pleasure of the President.
Nowhere in the Constitution is the dominance of the central government more glaring than Parts XI (“Relations between the Union and the States”) and XVIII (“Emergency Provisions”) respectively. Although many important matters are assigned to the states exclusively or concurrently with the central government, the latter is empowered to take over the functions of the former even without extraordinary circumstances. For example, the upper house of parliament (Rajya Sabha or Council of States) may by resolution supported by two-thirds of its members present and voting authorize that it is “necessary or expedient” for parliament to make laws with respect to a matter in the State List, or the legislatures of two or mare states may by resolution authorize parliament to regulate specified matters on the State List, or the Governor of a state may entrust to the Government of India or its officers any functions in relation to any matter to which the executive power of the state extends. In addition, parliament always has power to make law for any state with respect to matters on the State List whenever there is a proclamation of a state of emergency.
Part XVIII of the Indian constitution is titled “Emergency Provisions.” It specifies three occasions where the central government may issue a proclamation enabling it to exercise powers assigned by the constitution to the states. Pre-eminently is a situation of war, armed rebellion or a security crisis (Article 352). Others are a constitutional failure in a state (Article 356) and a financial crisis (Article 360). Remarkably, Article 352 emergency proclamation has been relatively rare. In contrast, constitutional failure has been proclaimed well over a hundred times. Essentially, to issue this proclamation, it is enough that the President “is satisfied that a situation has arisen in which the government of the state cannot be carried on in accordance with the provisions of the Constitution.” As a practical matter Article 356 is a sword of Damocles hanging over state governments formed by the opposition. The frequency with which this article is invoked by the central government reflects a relentless quest to retrieve power undemocratically where the party at the centre was defeated in a state. Although the Supreme Court has stated more than once that the Article 356 proclamation is subject to judicial review, that has been no disincentive to invoking the article. This should surprise no one though, as no court has ever declared a proclamation under Article 356 unconstitutional. The principal author of the constitution, Dr. B.R. Ambedkar assured the Constituent Assembly that Article 356 will be a “dead letter,” a prophecy that turned out be a powerful understatement.
III. THE ACCESSION OF JAMMU AND KASHMIR TO INDIA
The British Raj in India comprised the Indian provinces, directly administered by the British colonial government, and several hundred semi autonomous so-called princely states, which were, for want of a better term, protectorates. Upon independence and the partition of India in 1947, most of these princely states were given the option to opt to join India or Pakistan. Executing an Instrument of Accession was the process stipulated by section 6 of the Government of India Act 1935 (25 & 26 Geo. 5 c. 42) for the princely states to accede to the Indian federation. It required that the Instrument “shall specify matters which the Ruler accepts as matters with respect to which the Federal Legislature may make laws for his State, and the limitations, if any, to which the power of the Federal Legislature to make laws for his State, and the exercise of the executive authority of the Federation in his State, are respectively to be subject.” One of the few princely states that held out was Jammu and Kashmir, a Muslim-majority territory under the rule of a Hindu Maharajah. This territory has existed as a political entity since the March 1846 Treaty of Amritsar by which the British recognized Maharajah Gulub Singh as ruler. In 1950, three-quarters of the population of territory were Muslim. However, this demography is not evenly distributed throughout the land. For example, Hindus are the majority in Jammu and Buddhists are a majority in Ladakh.
Jammu and Kashmir was technically independent after August 15, 1947, having acceded to neither India nor Pakistan. However, outright independence was not an option, as the British Government made it clear that it would not recognize an independent state of Jammu and Kashmir. Maharajah Hari Singh was still holding out when tribesmen invaded the territory from Pakistan on October 22, 1947. Faced with the grave prospect of losing his kingdom to Pakistan within a few days, the Maharajah requested Indian help to rebel the invasion. He accepted the condition that Jammu and Kashmir would become part India. The territory therefore lost its independence to India as a price of avoiding losing it to Pakistan. Maharajah Singh however insisted that when peace returns, a plebiscite will be held to ascertain the wishes of the population of the territory. Indian Prime Minister Jawaharlal Nehru accepted this. By the Instrument of Accession executed on October 26, 1947, and accepted by the Governor-General of India Lord Mountbatten, the Maharajah accepted that India shall have power to make laws for the state with respect to defence, external affairs, communications and ancillary matters. However, Paragraph 7 stated, “Nothing in this instrument shall be deemed to commit in any way to acceptance of any future constitution of India or to fetter my discretion to enter into agreement with the Government of India under any future constitution.” The terms of the Instrument of Accession were reiterated by the Delhi Agreement of July 1952.
IV. PART XXI EXPERIMENT IN ASSYMETRIC FEDERALISM: ARTICLE 370
A federation is not always designed with parity in legal status and power for its constituent units. Some federations allow a degree of asymmetry in the assignment of power or competences (e.g. Quebec in Canada) for historical or practical reasons. The Indian constitution contains many ventures in asymmetric federalism: Articles 370, 371 and 371A-371J as well as the 5th and 6th schedules. However, Article 370 is in a class of its own not just because it gave Jammu and Kashmir significantly greater autonomy than the other states of the Indian union and partly immunized it from the application of the Indian constitution but, just as important, because it was negotiated as the basis of the incorporation into India of the former princely state. Jammu and Kashmir was the only state in the Indian Union that negotiated the terms of its membership. (Every other simply accepted the constitution of India.)
Article 370 was the result of a high-level five-month negotiation during May to October 1949 between the central government, which included Prime Minister Nehru and Home Minister Sardar Patel, and the leadership of Jammu and Kashmir led by its Prime Minister Sheikh Abdullah. Following its adoption by the Indian Constituent Assembly on October 17, 1949, Article 370 was included in the Indian Constitution adopted on November 26, 1949 (became effective January 26, in 1950). Essentially, the article restricts the power of the Indian parliament, notwithstanding anything in the constitution, to make laws for Jammu and Kashmir to the matters specified in the Instrument of Accession of October 26, 1947 (defence, external affairs, communications, and ancillary matters) and such other matters as, “with the concurrence of the Government of the state, the President may by order specify.” Articles 1 and 370 were the only parts of the constitution immediately applicable to the state. The President may also by consultation with the government of the state extend to the state application of other provisions of the constitution related to those matters specified in the Instrument of Accession. As will be discussed in the next Section, how the President obtains the consent of the state is a bit complicated.
The most significant Presidential Order issued pursuant to Article 370 was The Constitution (Application to Jammu and Kashmir) Order, 1954, C.O. 48. This Order further secured the autonomy of Jammu and Kashmir by specifically excluding several provisions of the Indian constitution from applying in the territory. Very significantly, Article 35A was inserted in the Constitution to secure the exclusive right of permanent residents of the state to employment under the state government, acquisition of immovable property in the state, settling in the state, and to scholarships or other assistance the government of the state may provide. Subsequently, the Jammu and Kashmir Constitution 1956 defined a permanent resident of the state as anyone who was a state subject on May 14, 1954 (the date of the Presidential Order of 1954) or who has been resident in the state for 10 years. So, other Indian citizens could not simply relocate to the state and be considered permanent residents to enjoy the same privileges. The purpose was obviously to protect the demographic balance of the state.
As a result of the Article 370 regime the Jammu and Kashmir Constituent Assembly adopted a state flag (1952; later Art. 144 of the state constitution). The 1952 Delhi Agreement stated, “the Union Government agreed that the State should have its own flag in addition to the Union flag, but it was agreed by the State Government that the State Flag would not be a rival of the Union flag; it was also recognized that the Union flag should have the same status and position in Jammu and Kashmir as in the rest of India.” The constituent assembly adopted a constitution for the state (November 17, 1956). Jammu and Kashmir was the only state in India with its own constitution. That apart, the head of the government of the state initially used the title prime minister, like the head of the government of India. But it was subsequently changed to Chief Minister, as with other Indian states. Similarly, until November 24, 1966, the Governor of the state was styled “State President” (Sadar-i-Riyasat). The 1954 Order secured the name, size and boundary of the territory against alteration by the Indian parliament with the following proviso appended to Article 3 of the Indian constitution (which governs that subject): “…no Bill providing for increasing or diminishing the area of the State of Jammu and Kashmir or altering the name or boundary of the State shall be introduced in Parliament without the consent of the Legislature of the State.” Also, a special proviso was inserted in Article 253 of the India to prevent from applying to Jammu and Kashmir the power of parliament to cede Indian territory to another country.
As we have noted, the consent of Jammu and Kashmir was required for the progressive extension of the application of the Indian constitution to the territory. Over time the extension of the constitution to Jammu and Kashmir was such that many observers considered Article 370 had become largely a hollow shell. As early as 1964, the Indian Home Minister Gulzari Lal Nanda confidently told Parliament, “Article 370, whether you keep it or not, has been completely emptied of its contents. Nothing is left in it.” The provisions of the constitution applicable to Jammu and Kashmir before the revocation of Article 370 last month included two hundred and sixty of the three hundred and ninety-five articles of the Indian constitution, ninety-four of the ninety-seven matters of the Union List, twenty-six of the forty-seven matters on the Concurrent List. Yet, the symbolic significance of the article was never lost. Otherwise it would be difficult to understand how opposition to Article 370 by Hindu nationalists grew louder even as more provisions of the Indian constitution were extended to the territory. In addition, the special constitutional protection of its permanent residents by Article 35A never waned. During the recent years the Hindu rejection of a special status for Jammu and Kashmir had reached a fever pitch that something had to give sooner than later.
V. ARTICLE 370 POST-MORTEM
The degree of autonomy states enjoy relative to the centre varies among federations. However, a complete, or even substantial, subordination of states to the centre is incompatible with federalism. Kenneth Wheare could not have been clearer:
“What then is federalism? Its essence consists, I think, in this: that in a federal system, the functions of government are divided in such a way that the relationship between the legislature which has authority over the whole territory and those legislatures which have authority over parts of the territory is not the relationship of superior to subordinates … but is the relationship of co-ordinate partners in the governmental process.”
The Constitution (Application to Jammu and Kashmir) Order, 2019 issued by President Kovind on August 5, 2019 effectively terminated Article 370 by, in one fell swoop, extending the application of all provisions of the Indian constitution, as amended from time to time, to Jammu and Kashmir. It also terminated the Jammu and Kashmir Constitution 1956, as the Order according to its terms superseded that constitution. Following this, parliament passed the Jammu and Kashmir Reorganization Act 2019, which downgraded the status of the state to a Union Territory. Ladakh was carved out as a separate Union Territory. As we have seen, this alteration of the boundary of Jammu and Kashmir would have been unconstitutional before August 5.
The challenge of terrorism is mostly cited by the government as the justification for the revocation of Article 370. Indian Attorney General, K.K. Venugopa told the Supreme Court that, since 1990, 41,866 persons have lost their lives in 71,038 incidents of terrorist violence in the state. Perhaps a more plausible reason is the long-standing uneasy Hindu-Muslim relations in this Muslim-majority state formerly ruled by a Hindu monarch and elsewhere in India. Hindu population is dominant in India (79 per cent). But while the Muslim population is just short of 15 per cent, it has a higher birth rate and is expected to hit 18 per cent (310 million) by 2050. When Jammu and Kashmir abolished the monarchy in 1952, the Hindu-dominated party Jammu Praja Parishap, supported by the Ladakh Buddhists and Hindu parties in the rest of India, began a campaign for the abolition of the special status of the state. In recent years, Prime Minister Modi’s Hindu nationalist Bharatiya Janata Party (BJP) has championed this cause as part of a deliberate electoral strategy of stoking anti-Muslim sentiments throughout India. The BJP leads a coalition of right-wing parties (the National Democratic Alliance) that has a strong majority in the lower house (Lok Sabha) of the Indian parliament. BJP’s manifesto for the April 11-May 19, 2019 parliamentary election included a specific promise to revoke Article 370 and Article 35A. No surprise then that the party considered its strong showing in the election as a popular mandate to immediately implement the two promises. Yet, Shyama Prasad Mookerjee, founder of the BJP’s predecessor the Bhartiya Jan Sangh, was in the Union cabinet that approved Article 370 in 1949. He did not oppose it.
It remains to consider the legal validity of revocation of Article 370 and its consequences. Because the article belongs to that Part of the Indian constitution titled “Temporary Provisions,” some consider that, despite its longevity, it was never intended to be a permanent regime, and it was never considered part of the unalterable basic structure of the constitution. The counterpoint to that, however, is that the article was perhaps simply intended as a temporary mechanism pending the convening of the Jammu and Kashmir constituent assembly, the body that was to finalize the process of determining the provisions of the Indian constitution to apply to the state. The argument is that this was precisely the purpose of the requirement in Clauses 2 and 3 of the article of the approval or recommendation of the constituent assembly before the President can extend additional provisions of the Indian constitution to the state. As the Jammu and Kashmir Constituent Assembly convened on October 31, 1951, adopted the state constitution, and dissolved on January 25, 1957, this, therefore, arguably froze Article 370. First, because after that date the body prescribed by the article to approve or recommend the extension of application of the Indian constitution to the state disappeared. Therefore, the President could no longer lawfully exercise his power under the article, including the Order of August 5, 2019. Alternatively, it is not simply that the President’s power under the article is locked out after January 1957 but Article 370 expired, as an interim mechanism terminated with the dissolution of the constituent assembly. The Supreme Court of India initially accepted the constituent assembly-centred perspective. In Prem Nath Kaul v. State of Jammu and Kashmir (1959), it stated that, Article 370(2) “shows that the Constitution-makers attached great importance to the final decision of the Constituent Assembly, and the continuance of the exercise of powers conferred on the Parliament and the President by the relevant temporary provisions of Article 370(1) is made conditional on the final approval by the said Constituent Assembly in the said matters.” However, the court subsequently took the position that the President could lawfully continue making orders under the article even though the constituent assembly had ceased to exist.
The diplomatic contest between India and Pakistan over Kashmir is not any clearer. Pakistan never accepted the accession of Jammu and Kashmir to India largely because, in its view, the accession was inconsistent with the spirit of the partition of colonial India into a Hindu and a Muslim-majority country respectively. The Government of Pakistan issued a statement, on October 30, 1947, that it does not recognize the accession, alleging it was extracted by fraud and violence. However, the accession was provisional pending ascertainment of the preferences of the population. Indeed, on November 21, Prime Minister Nehru made a statement in Parliament that affirmed his promise that the people of Kashmir will be given the opportunity possibly under the supervision of the United Nations to determine their future. Unable to resolve the dispute bilaterally with Pakistan, India referred the matter to the United Nations on December 31, 1947.
The approach of the United Nations was that, “the question of the accession of Jammu and Kashmir to India or Pakistan should be decided through the democratic method of a free and impartial plebiscite” (UN Security Council resolution 47 (1948) [The India-Pakistan Question], 21 April 1948, S/RES/47 (1948)). Although both countries agreed to this solution in principle, it never happened due to their intransigence. Since 1972, India’s position is that the settlement of the dispute can only be by bilateral negotiations with Pakistan. Rather than hold a plebiscite, India considers that the elected constituent assembly of Jammu and Kashmir (1951-1957) already expressed the will of the population of the territory because section 3 of the state constitution adopted by it declared, “The State of Jammu and Kashmir is said and shall be an integral part of the Union of India.” What is more, the section is unalterable (section 147).
VI. CONCLUSION
The UN, however, insisted on the principle agreed to in Resolution 47 of 1948. Accordingly, its response, Security Council resolution 122 of January 24, 1957 declared, “that the convening of a constituent assembly as recommended by the General Council of the ‘All Jammu and Kashmir National Conference’ and any action that assembly may have taken or might attempt to take to determine the future shape and affiliation of the entire State or any part thereof, or action by the parties concerned in support of any such action by the assembly, would not constitute a disposition of the State in accordance with the above principle.” Following the revocation of Article 307, Prime Minister Modi announced that India will not accept any foreign mediation of the dispute over the status of Jammu and Kashmir. The prospects of a plebiscite conducted under UN supervision or even a third-party mediation are dim.
Chief Justice Hamidulla Beg, in Rajasthan v. Union of India (1977), speaking for the Supreme Court, noted: “In a sense, the Union of India is federal. But, the extent of federalism in it is largely watered down by the needs of progress and development of a country which has to be nationally integrated, politically and economically coordinated, and socially, intellectually and spiritually uplifted.” It is not clear whether after the unceremonious demolition by the BJP central government of a highly symbolic special constitutional protection of the autonomy of the country’s lone Muslim-majority state, minority protection in India can still be taken for granted even with the Constitution’s lofty promises. To be clear, the Supreme Court, as we have noted, also lent support to the gradual slide to the demise of Article 370 by producing jurisprudence that watered down the intended sanctity of a great constitutional safeguard.
The question of the constitutionality of the revocation, the crux of the legal dispute, is currently before the Supreme Court of India. If this unilateral abrogation by the centre of the legal status of a state in the Indian union is sustained by the court, then it is open to doubt whether India’s credentials as a federation will bear scrutiny. Arguments are scheduled for next week, September 30. This is only the fourth time the court will be deciding the legal status of Article 370 and it may be the last. Because its very existence (or demise) will now be pronounced by the court. One consequence, in theory at least, is that revocation of Article 370 also implicitly revokes the Instrument of Accession of October 26, 1947 and therefore restores Jammu and Kashmir’s status ante.
Solomon Ukhuegbe 