Speaking about the Supreme Court’s delayed and evasive responses to the questions around the lack of 4G internet in Jammu and Kashmir for a year now, lawyers Suhrith Parthasarathy and Gautam Bhatia ended a recent piece by saying that the court must now ask itself if “the people of J&K are subjects to be ruled over, or are they citizens who possess rights against the state?”
The suggestion that the people of Jammu and Kashmir are ‘subjects’ raises an important question: if this is their effective status in the eyes of India’s highest court, then is it possible to grapple with questions that their ‘subjecthood’ raises without seeking recourse to international law?
Even without the Supreme Court’s evident lassitude, how is it conceivable that questions about the historical title of a contested territory (confounded by the process of colonisation and decolonisation of the “princely states”), on self-determination, on the legality of the accession and the continued administration, and now the scuttling of Article 370 can avoid the scrutiny of international law? More so, when these questions are far from settled, and, consequently, not a purely “internal” matter for India.
In choosing to look towards international law, it is not my suggestion that themes in international law like sovereignty, statehood, self-determination and occupation, and the institutions that engage with them, are not contested. I am also not oblivious to the fact that the very discipline of international law – as Noura Erakat, Victor Kattan and Eyal Benvenisti point out in the context of Palestine – has also been weaponised to justify oppression. Such “lawfare”, for example, finds manifestation in Israel denying the pre-mandate status of Palestine – and its status as an occupier, on the grounds that it supposedly took the “land” from “no sovereign”.
At the same time, international law has also given liberation movements a site for resistance. The efforts towards bringing Israel’s occupation and crimes within the scrutiny of institutions like the International Criminal Court is evidence of such resistance in our times. Outside the context of Palestine too, there is the relatively recent example of the International Court of Justice ruling against the illegality of the “continued occupation” of the Chagos Islands by the British.
In fact, international law also has a huge relevance for post-colonial states – especially those which have themselves started aping the power structures and practices of their predecessors. This is also especially true of questions around self-determination, where post-colonial states tightly hold on to territorial boundaries produced as a result of what is, many times, an incomplete decolonisation. And, often, justifying this by invoking the (in)famous tenet which is used “[to ensure] that acts of self-determination occur within the established boundaries of colonies, rather than within sub-regions” without regard (and, often, in active denial) to known exceptions, practices, lived realities and other nuances.
The limitations of constitutional law and constitutional courts
The criticism of international law being shaped by power also applies, in a varying degree, to domestic law as well. Take for example, Article 370 whose drafting and adoption is mired by lies (for example, admissions about the status of the accession in the constituent assembly), and is itself premised on a questionable accession – shadowing the history and aspirations of many.
The eventual result, as Parthasarathy himself points out, was the use of the provision for an unaccountable method of extension (with significant changes) of the Indian constitution to Jammu and Kashmir (through executive orders), chipping away the autonomy through several cuts over many years. Similarly, the taking away of the limited benefits of such autonomy last August (for instance the protection and privileges assured to permanent residents) through ostensibly constitutional means, and premising such a move on false promises of equality and development, is nothing but “lawfare”. It is, in fact, quite similar to the motivation of weaponising domestic law for the “defensive annexation” of the Golan Heights.
Going back to the question that Parthsarathy and Bhatia ask now – this should have actually been posed on many occasions in the past, seeing the institutional response towards questions about Jammu and Kashmir.
For years, the Supreme Court has failed miserably in speaking the right “law” to power in cases directly about impunity in Kashmir, such as Lakhwinder Kumar, Karmveer Singh, Masooda Parveen, the Kunan Poshpora incident and the Pathribal massacre. Even if one were to (incorrectly) discount impunity related issues on the ground that the issue is a general one, the Supreme Court has also gone against the text and intention of Article 370, and turned a blind eye to the events that orchestrated the impugned constitutional changes by:
1. Validating executive orders used to amend the constitution that applied to Jammu after the dissolution of the Constituent Assembly of Jammu and Kashmir in 1957, through legal fictions per which the legislative assembly of Jammu and Kashmir had similar constituent powers.
2. Allowing broad, unfettered powers of “modifications” to the Indian constitution as it applied to the state Jammu and Kashmir.
3. Destroying the institution of the elected Kashmiri Sadar-i-Riyasat (and also strengthening the conduit for Union interference through governors rule) by allowing the Union to go against the strict amendment procedures of Article 370.
4. Subordinating the Jammu and Kashmir constitution to the Indian constitution despite the former drawing no power or validity from the latter.
In doing these, it is important to not lose sight of the civil liberty issues that were attached to cases like Sampath Prakash. The court in allowing the amendments through executive orders – also sanctified an “Article 35(c)” of the constitution as it applied to the state. This effectively provided for an embargo on judicial review of the executive’s powers to detain people without charge or trial. Interestingly, this provision challenged in Sampath Prakash was in operation for 25 years from 1954.
This, along with the limited vocabulary of domestic law to call something an occupation/annexation, illustrates how constitutional law may not be effective in dealing with questions like historical title, accession, or the right of self-determination. This is all the more so seeing the response of the court in failing to do what it is/was constitutionally expected to do. In such times, it is indeed an irony that it is international law that has been criticised for being slow and ineffective.
Whose law is it anyway?
Looking exclusively towards the constitution and domestic law also poses a few other challenges.
First, is the import of using constitutional law in such a context. Take for example, the Israeli Supreme Court’s decision to strike down the law that regularised the confiscation of private Palestinian lands by settlers. It did so on the ground that it violated the Israeli Basic Law on Human Dignity and Liberty and was, therefore, unconstitutional. Though a welcome result, Joseph Weiler and Michal Saliternik argue that the “choice to evade the preliminary question of whether a Knesset law can apply in the Territories, and to examine instead whether the law’s infringement of Palestinians’ property rights is compatible with Israeli constitutional norms, can be seen in some paradoxical way as ‘annexationist reasoning’.”
Naturally, though not in an entirely similar scenario, taking recourse to constitutional law in Jammu and Kashmir when the accession and its terms (that form the basis of the constitutional link), are subjects of inquiry makes the use of the constitution somewhat doubtful.
Secondly, constitutional law and its remedies may for many questions be only “inward looking” – explorable only within domestic laws and territorial imaginations. Also, the constitution should not be used to provide conscience to our own colonialism. One can ask how useful is it going to be to retrieve Article 370 in its unabrogated avatar? Would we be fine if it allows for the same executive powers highlighted above with the same Supreme Court as the watchdog?
Further, the use of a fundamental rights regime alone often invisibilises the nature of the Indian administration in Jammu and Kashmir. Take for instance the reference to “collective punishment” by the five UN Special Rapporteurs in their report on the communication blockade imposed in August last year. The blockade is undeniably a violation of the human rights framework that finds space in our fundamental rights chapter. Yet, calling it out as a human rights violation alone takes away from the appropriateness, historical usage and gravity of a term usually reserved for occupations and armed conflicts.
Third is the question of “faith” that people – especially ‘subjects’ – have on a normative framework. As mentioned above, international law has often been the site for resistance in such contexts. Quite recently, speaking on the ICJ hearings on the alleged Rohingya genocide, Raiss and Azeezah write how “The importance of the moment exceeded what was happening inside the courtroom during the hearings and spilled over into the streets outside – where hundreds of Rohingya and their allies […] gathered to demonstrate their solidarity with the Rohingyas’ historic quest for justice and accountability.” A similar parallel, though not necessarily representative of every voice, can be seen in how Kashmiris have viewed “UNO Sahab” – the nickname for the United Nations Military Observer Group in India and Pakistan in Srinagar – and the ‘UNO Chalo’ marches, indicating how the UN, though not without question, has often been seen as “a powerful interlocutor committed to enacting their aspirations and delivering their long-awaited justice”.
The recent UN High Commissioner for Human Rights reports on Jammu and Kashmir in 2018 and 2019, despite their limitations, were seen by some as a welcome intervention by the UN, and somewhat reflective of a similar faith. Together with this, the use of terms like “self-determination” and “occupation” by many, and the acknowledgement of India’s laws being instruments of an occupying force also suggests the utility of looking beyond constitutional law.
In acknowledging the role of international law, we also need to come to terms with how international law plays out on streets and in resistance (quite like the constitution during the anti-Citizenship Amendment Act protests), and brings visibility and sometimes attached pressures by international actors to end abuses of power.
Looking beyond constitutional/domestic laws and institutions does not necessarily mean giving up on engagement with them altogether. Further, despite the inertia of the international legal process and the frustrations it has seen in places like Palestine and Western Sahara, it is important to start asking these questions and counteract, in the limited capacity that law can, the barriers and blind spots seen elsewhere in attaining results. By delaying a debate on these questions in our discussions, or at least an acknowledgement, we make the delay attached to international law a self-fulfilling prophecy.
Aman is a lawyer working in Delhi and Kashmir and is an Assistant Professor of Legal Practice at Jindal Global Law School. He tweets at @CB_Aman.