The Constitutional Immorality of Abrogating India’s Article 370

Beyond Jammu and Kashmir's bifurcation are critical issues related to the fate of democratic institutions, the nature of India's progress and constitutional morality.
Kashmir news, Kashmir, Article 370, Indian Constitution, Jammu and Kashmir, Jammu and Kashmir news, Indira Gandhi, Narendra Modi, India, Indian

Srinagar, Jammu and Kashmir on 11/28/2018 © Faizan Ahmad Sheikh / Shutterstock

The decades-old Hindu nationalist dream of confining Article 370 of the Indian Constitution to the dustbin of history is on its way to becoming a reality. Historians can debate the circumstances in which the princely state of Jammu and Kashmir became a part of the union of India and whether awarding special status to the state through Article 370 was appropriate. However, judging by the euphoria and muted dissent with which the decision to abrogate it was greeted, the prevailing public opinion is that Article 370 was the original sin of the birth of India and should be scrapped.

Ever since Jammu and Kashmir’s accession to India in 1947, only a handful of political families have ruled the state as their fiefdom, and they have very little to show for it in terms of peace or prosperity. Cross-border terrorism has ruined a couple of generations of Kashmiri youth. Scores of Kashmiri Hindus have been driven out of their homes and had their properties destroyed.


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The central government has thrown the kitchen sink — from near-total liberty to separatists and freedom fighters, multiple rounds of peace talks with all stakeholders, pouring millions of rupees to build infrastructure, to ruling with an iron fist — at the geopolitical problem in the region, and it has failed to achieve durable peace and usher in an era of sustainable development.

Army personnel fighting on the ground privately admit that terrorism and ancillary businesses in Jammu and Kashmir have become more of a thriving cottage industry than an ideological war. It is natural for generations of Indians born after independence, far removed from the brinkmanship that went into making Jammu and Kashmir part of India, to believe that some drastic steps are required to ensure that it does not become an unending conflict like with the Israelis and Palestinians.

To achieve lasting peace, perhaps dividing the state of Jammu and Kashmir into two union territories administered by the central government will, in due course, prove to be a step in the right direction. While constitutional scholars are debating the legalities of the decisions, the manner in which they were taken is dangerous for the future of Indian democracy. It brings up issues related to the fate of Indian democratic institutions, the nature of progress India is choosing and constitutional morality.

Independence of Democratic Institutions

When Narendra Modi was elected as prime minister of India in 2014, albeit with a weaker majority in the Lok Sabha, the lower house of Parliament, it was with the promise of steering India away from the Congress party-led socialist economics, heavy-handed decision-making and social policies skewed toward minority appeasement. Voters were expecting the nationalist Bharatiya Janata Party (BJP) government to respect the independence of various institutions, uphold the primacy of the constitution and perform its duties without fear of favor.

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After five and a half years of the BJP’s reign, which includes a thumping re-election victory and a stronger mandate earlier this year, it is quite clear that the party is not interested in the independence of democratic institutions. Demonetization, contentious or abrupt departures of its governors and the government’s repeated attempts to raid the Reserve Bank of India’s (RBI) cash reserves to make up for budgetary shortfalls have left the RBI’s reputation in tatters.

Successful attempts to hide 45-year-high unemployment data until the conclusion of the 2019 elections led to resignations at the National Sample Survey Office. Conveniently turning a blind eye to repeated code of conduct violations by BJP leaders during the elections have raised serious questions over the actions of the Election Commission.

Lokpal, an anti-corruption ombudsman that the BJP wholeheartedly supported before 2014, was appointed only after five years of inaction and the Supreme Court’s ultimatum to the Modi government. While a Lokpal is in place now, the famously efficient bureaucracy of Modi has not found the time to approve the format of complaint forms that would allow people to submit complaints to the Lokpal.

Recent amendments to the Right to Information Act would ensure that information officers are beholden to the government of the day, which could lead to hiding compromising information about its decisions. Just like the Congress era, central investigative agencies like the Central Bureau of Investigation, Enforcement Directorate and Intelligence Bureau are being used selectively to intimidate political opponents.

Until the recent changes in Article 370, national security issues remained above the fray. Historically, the ruling party built consensus and consulted political rivals on issues of national sovereignty and foreign relations. This had become part of the national political ethos. The spread of deliberate lies and secrecy surrounding such a monumental geopolitical decision speaks volumes about the short-sightedness and lack of political maturity of the current political leaders. Instead of strengthening and relying on the independence of institutions to act as guardrails against dictatorial tendencies, the current BJP leadership is indulging its own authoritarian impulses.

It also brings up concerns related to the nature of progress India is experiencing. The five-and-a-half-year report card of the BJP government has several admirable bright spots. Thanks to the rapid expansion of pilot projects initiated by the previous United Progress Alliance (UPA) government, corruption in distributing subsidies to the poor has gone down. Highways, ports and public transportation systems are being built and expanded at an unprecedented rate. With the rollout of the goods and services tax, India has ushered in a one-nation, one-market era. Some macroeconomic indicators like inflation and external debt seem to be under control (although there are some reports of fiddling with the figures to underreport the fiscal deficit).

In spite of these achievements, with the bone-headed economic adventurism of demonetization, tax terrorism, recent increases in taxes on the rich, the near bankruptcy of infrastructure finance giant IL&FS and non-banking financial corporations, and arbitrary changes in regulatory regimes, India is already staring at an economic slowdown of its own making. International media have begun doubting the Indian growth numbers.

If you add the steady rise of incidents of lynching of minorities by fanatical Hindu mobs, criminalizing the Islamic practice of triple talaq (instant divorce) to selectively put Muslim men in jail for abandoning their wives, arm-twisting media to muzzle dissent and the newfound zeal to keep critical national security decisions like abrogating Article 370 secret, it is worth asking ourselves whether sacrificing our fundamental rights and institutional independence at the altar of development is worth it.

Whose Model of Development Is Worth Emulating?

The historical trajectories of the top two economies by GDP today, the United States and China, are quite instructive. At its inception, the US was far from a perfect union and, by some measures, it still has a long way to go. As an example, slavery was clearly one of the original sins of the US Constitution and it almost ruptured the union during the Civil War of the 1860s. While it took more than half a million lives and led to the abolition of slavery, it took another century for the United States to desegregate society through the civil rights movement.

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Mass incarceration and disenfranchisement of African-Americans is still a burning social issue, but the US has been slowly and steadily moving toward a more just society with stronger and more independent institutions, and hence, a more perfect union. While post-World War II American history is replete with foreign policy misadventures, the stability of its domestic politics is evident in the way other institutions are pushing back against a racist and xenophobic executive branch under President Donald Trump. Structural transparency of the American system compared to other countries has given it arguably the biggest economic prize: the US dollar as the reserve currency of the world.

After the establishment of the People’s Republic of China in 1949 as a communist country, the Chinese went through two gruesome internal conflicts. The idealistic social reform movement of the Great Leap Forward in 1958-61 led to the massacre of an estimated 15 to 35 million Chinese, which was followed by persecution of the Cultural Revolution era that began in 1966 and lasted till Mao Zedong’s death, taking an additional half a million to 2 million lives.

China has belatedly adopted a right-wing economic agenda to achieve breathtaking development and lift millions out of poverty, but it has systematically destroyed individual liberty and human rights in the process. Chinese President Xi Jinping has abolished term limits and declared himself the supreme leader of the country. The opaque economic institutions and centralized decision-making have made other nations suspicious of its global ambitions vis-à-vis the Americans, evident in the difficulties China is facing in expanding its signature Belt and Road Initiative.

The repeated failure of the US to address gun violence and the success China has demonstrated in adopting renewable energy to combat climate change illustrate that every system has its pros and cons, but that would be missing the larger point. The nature of progress India chooses now will define its trajectory for the foreseeable future. In representative democracies, development is inherently slow. Some degree of inefficiency is a feature of true republics, in which deliberation and bringing all stakeholders together are designed to ensure that pitfalls are minimized and the next step forward doesn’t backfire.

Having demonstrated nearly two decades of double-digit GDP growth, the authoritarian Chinese model seems more attractive, but it lacks the human ethics and moral authority of a democracy and is more susceptible to collapses. The emergency declared by Indira Gandhi in the 1970s has already given Indians a taste of dictatorship. The most ironic aspect of the latest turn toward authoritarianism in India is the fact that the current crop of leaders earned its political chops during Gandhi’s state of emergency.

Modern Republics and Constitutional Morality

And that brings us to constitutional morality. In modern democratic societies, concepts of justice, liberty and equality flow from the text of the constitution — free from religious baggage, sociocultural history or any claims of racial superiority or victimhood. When India adopted its constitution in 1950, an overwhelming majority of Indians was oppressed, poor or illiterate with no exposure to constitutional morality. And yet, India gave all its citizens the right to vote regardless of race, caste, creed, educational qualifications, ancestral history, land ownership or any other vested interest in the success of the new republic.

It was a quintessentially Indian democratic experiment, a huge gamble that even the vaunted American system cannot boast of, and truly made it a revolution. Inherent in the monumental decision was the hope that elected officials will uphold the law in letter and spirit until the Indian polity builds a constitutional ethos and holds them accountable.

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While rampant corruption has been a mainstay in Indian politics for decades, barring Indira Gandhi, all other Indian leaders had admirably kept that promise. Modi’s hypocrisy of bowing in front of Parliament as the temple of democracy for photo-ops and swearing by the constitution as the holy book, only to change it without even informing fellow parliamentarians, is on full display now.

The most troubling aspect of the decision to abrogate Article 370 is the fact that Article 367, which is the interpretation clause of the constitution, was changed by a presidential order, not a constitutional amendment. The requirement to ensure that changes in Article 370 are in line with the will of the people of Jammu and Kashmir was summarily diluted so that a governor, appointed by the central government, could sign off on them.

These changes go to the heart of India’s federalism and are not minor clarifications to be brushed aside with a presidential order. More importantly, while Indira Gandhi was a populist with authoritarian tendencies, her rhetoric and actions were largely devoid of any claims of religious superiority. What makes Modi’s populism more dangerous is his majoritarianism, which is difficult to tamp down once unleashed.

It is also a scathing indictment of the level of appreciation of civics and history in India. Instead of questioning the legal validity of the orders and debating the larger implications of changing the constitution without following the process of an amendment, Indians seem to have entered a phase of mass euphoria. Even some of the staunchest political opponents of the BJP have wholeheartedly embraced the way in which the government has gone about it. Gandhi had to declare an emergency to make significant changes to the constitution without going through the process of an amendment. Modi doesn’t feel the need to do that because, despite higher literacy rates compared to the 1970s, a majority of Indians is craving authoritarian leadership.

A government run by the constitution and independent institutions is better than any other form of government because it outlasts any leader — good or bad. The process of amending the constitution is meant to be difficult to ensure the country is not run by the whims and fancies of one individual. Indians are rejoicing today because those whims and fancies are in line with an overwhelming majority of voters, but if the Supreme Court allows the government to set this precedent, they will soon come to regret it. India cannot dream of becoming a mature democracy unless constitutional morality is etched into the national psyche. It might be sleepwalking into authoritarianism again, but the world is watching.

The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy.

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