Prem Shankar Jha 
In the past decade, the Supreme Court of India has given a succession of judgements that have eroded civil society’s faith in its readiness to uphold the Constitution of India and protect its secular, ethno-federal democracy from the relentless attack that has been launched upon it by the government of Prime Minister Narendra Modi and his home minister Amit Shah. But the impact of the most perverse of its previous decisions pales into insignificance before that of their judgment upholding the reading down of Article 370 of the Constitution on 5, August 2019.
In one of the most powerful, and most disturbing, editorials that I have read in six decades as a journalist, The Hindu has described how, by upholding Modi’s decision, the Supreme Court has opened the way for his or any future government to amend the Constitution without having to bother with getting a two-thirds majority in both houses of Parliament.
The way is simple: take advantage of, or create, a law and order situation in a state, declare President’s Rule under Article 356 of the Constitution, claim that the president (or governor) now has all the powers of the state legislature, and enact whatever change the state government did not want to make.
The way in which the Modi government will use this interpretation of the Constitution needs no imagination. In three states the BJP-appointed governors have refused to give their assent to Bills or laws passed by the legislature. In Tamil Nadu, in a direct violation of the Constitution, the governor has refused to give it even after the Bill has been returned to him a second time. This was an express violation of the Constitution, but one that was directly instigated by the Union government.
Earlier, the Modi government sent a team of 40 CBI officials to Kolkata, to arrest a serving police commissioner of the state government and bring him to Delhi for interrogation. Its attempt was foiled only because there was an elected state government whose police rose in defence of their commissioner and ‘arrested’ the CBI officials instead.
Also read: What Will the Supreme Court’s Article 370 Judgment Mean for Politics in J&K?
In Delhi, the Modi government has taken advantage of its already being a union territory to arrest no less august a personage than its elected deputy chief minister, Manish Sisodia, and has been holding him without bail and despite being unable to frame a charge against him for ten months. Not Satisfied with that, Modi is now attempting to do the same with the chief minister, Arvind Kejriwal, himself.
These are the actions of a tyrant, not of the elected leader of a democratic government, and all have been taken before Chief Justice of India D.Y. Chandrachud and his colleagues’ eyes. How long do they think it will be before Modi begins to use the freedom their verdict has given him, to start overturning opposition governments in order to bend the whole of India to his and his Hindutva colleagues’ will?
To justify its decision, the bench has put forward two other supporting arguments. The first is that Article 370 was placed in part 21 of the Constitution titled “Temporary, Transitional and Special Provisions”. Thus it was never meant to be permanent. So all that the Modi government has done is to close the chapter on Kashmir.
The second is that over the decades since the accession, Kashmir’s laws have in any case been brought in line progressively with those of the rest of India. So as the government has argued, the autonomy shielded by Article 370 had been been ‘gradually eroded’.
This is so deliberate a misreading of the Constitution that it leaves one gasping for breath. How could the learned judges not know that ‘temporary’ had to be read within its temporal and political context?
The Constitution was drafted in 1948-49 and adopted by the Constituent Assembly on November 26, 1949. At that time, India was still a dominion of the British Commonwealth. The princely state of Kashmir had acceded to India but two-fifths of it was occupied by Pakistan and war was still raging there. Kashmir’s accession to India had been confirmed by the United Nations Security Council, subject to a plebiscite. But Pakistan had refused to vacate occupied Kashmir, because it knew, as British high commissioner to Pakistan Sir Patrick Graftey-Smith had reported to London from Karachi as early as October 1947 when the invasion of Kashmir had just begun, that it would lose it if one were to be held.
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The Constituent Assembly knew that substantial amendments would be needed when the two parts of Kashmir were reunited. Thus it was the boundaries of Kashmir that were temporary when the Constitution was adopted. Since ‘Azad’ Kashmir is now generally accepted as a province of Pakistan, and the ceasefire line has become the de-facto boundary between India and Pakistan in Kashmir, the word temporary has lost its meaning. It was the worst kind of sleight of hand for the Supreme Court to have given this term a wholly different meaning.
The court’s other justification for its verdict is equally flawed. It is true that over the past seven decades Kashmir’s laws and constitutional safeguards have been brought more and more in line with those of the rest of India. The Instrument of Accession had brought only defence, foreign policy and communications within the ambit of Central power. It was the Delhi Agreement of 1952, overseen by Jawaharlal Nehru and Sheikh Abdullah, that began the integration of government in all spheres between the state and the rest of the country.
Just how comprehensive it was can be judged from the range of subjects covered: These included the appointment of the head of the state; the extension of all the civic and fundamental rights of citizens of India to persons domiciled in the state of Jammu and Kashmir; and extension of the jurisdiction of Supreme Court to the state.
It integrated the fiscal system of the state with that of the rest of India, thereby giving Kashmiris full and free access to the vast Indian market. Finally it extended key symbols of statehood like the national flag, and the emergency powers of the Indian state to Kashmir.
The Delhi agreement was the beginning of Kashmir’s integration with the rest of India. A decade later, in 1963, Nehru said that Article 370 has been eroded and the process of gradual erosion was going on. A year later, home minister Gulzari Lal Nanda, described article 370 as a tunnel to take the Constitution of India to Jammu and Kashmir.
By the time Prime Minister Indira Gandhi released Sheikh Abdullah from incarceration and allowed him to resume his chief ministership of Kashmir, 23 constitutional orders had been promulgated to further integrate the state into the Indian Union, and 262 Union laws had been applied to the state.
What the Supreme Court has chosen to ignore is that all this was done with the consent of the Kashmir governments of the time. Sheikh Abdullah had signed the Delhi agreement only after convening a constituent Assembly with 75 members, to approve of it.
In the decades that followed, more and more all-India laws and provisions were extended to Kashmir as well with the full consent, often at the request of, the Kashmir government. As Sheikh Abdullah’s talks with Indira Gandhi’s special representative, G. Parthasarathy, before returning to power showed, there was next to nothing left that he wanted to change.
This process was a world away from the sleight of hand that the Modi government used in 2019, to ‘complete’ the integration. The contrast between ‘erosion by consent’ and ‘erosion through brute force’ was vividly demonstrated by the weeks-long curfews, the complete shut down of internet services, and the paralysis of transport even afterwards that forced people catching flights out of Kashmir to walk kilometres to get to the airport. For the Supreme Court to have glossed over this stark and humiliating difference is inexcusable.
Coming after two foreign governments have accused the Modi government of carrying out or planning extra-judicial killings on their soil, it is clear that the sole remaining pillar of India’s once vaunted, and much envied, democracy has finally fallen.
Prem Shankar Jha is a veteran journalist.