Finally, the Rubicon has been crossed by the radical Hindutva government having shoved the battalions of soldiers on the innocent yet steadfast Kashmiri civilians. The snow clad mountains surrounding the lush green Himalayan valley bursting of exotic fresh saffron have been praised by the poets, and passionately re-produced by artists as a description of eternal bliss. The same Kashmir is now shrouded in a deadly offensive after decades of brutal suppression and persecution by the armed forces of India having left countless families displaced, lives forcibly pulled out from the bodies of civilians and dreadful physical incapacitations by use of pallet guns pointed at the eyes of civilians in an attempt to cover their bright hope for freedom in perpetual darkness.

The BJP led government has hastily executed their pre-election promise by abrogating the Constitution of Jammu & Kashmir thereby, revoking Article 370 of the Constitution of India in the shape of the Presidential Order (CC.O.272). This exterminated the special status afforded to Jammu & Kashmir in India without realising that this time not only are Kashmiri’s going to face the brunt but, the living organism in the shape of the Constitution of India is bleeding too.

Article 370 grants special autonomous status to Jammu & Kashmir whereby the Indian Parliament shall not make laws for the region except with the consultation and approval of the Jammu and Kashmir’s legislative Assembly. In this light, the Indian Parliament was only allowed to legislate on matters of defence, telecommunications, and foreign affairs.

The blatant ignorance of the Constitutional history of Article 370 by the fascist Modi government could not appear starker than this. Article 370 had its inception as a general testament of a political compromise to ensure that Jammu & Kashmir will not merely be a federating unit but will be a self-governing and an autonomous region. Maharajah Hari Singh of Kashmir made it unequivocal in the instrument of accession that, “nothing in this Instrument shall be deemed to commit me in any way to acceptance of any future constitution of India or to fetter my discretion to enter into arrangements with the government of India under any future constitution”. From this it logically follows that, it is beyond the scope of any future Parliament of India let own the arbitrary decision of the president to repeal the special status afforded to the people of Kashmir without approval of the Jammu & Kashmir State Parliament. Repealing Article 370 unilaterally which is the living embodiment of the Instrument of Accession is tantamount to disowning the very constitutional agreement struck between Pandit Jawaharlal Nehru and Maharaja Hari Singh. If the very essence of the instrument of accession has been withered away by the BJP government, then on what basis can the State of India internationally rely on the Instrument of Accession to deny Pakistan’s demand for the Kashmir?

Furthermore, Article 53 of the Indian Constitution makes the President of India the head of the executive/government who works in consultation with the Prime Minister and the council for ministers. The words of Article 370(3) suggest that, the president is granted unfettered discretion to declare that the “article shall cease to exist”. In the case of Article 370, the world is witnessing a blatant executive overreach and a flagrant show case of inviolability of the government with a lack of robust mechanism to hold them accountable. Repealing Article 370 is a provision of the Constitution and ought only to be repealed by way of a Constitutional amendment in the Constitution which ought to be decided by two thirds of the total Parliament. However, history will remember that the people of Kashmir were stripped of their rights only by way of an arbitrary presidential order. The Modi led government has identified the systemic loop hole consequently, have usurped the role of the Parliament to legitimise the social, demographic changes. The entire concept of separation of powers as enunciated by the Supreme Court of India as the “basic structure” of the Indian Constitution and democracy has been undermined by the majoritarian BJP government by this elucidation of usurpation.

The Indian Supreme Court has on many occasions spilt the ink of declaring the sanctity of Article 370 and at occasions remarked that it possesses permanent status making abrogation impossible. For in order to abrogate the article, it is indispensable to consult and get acceptance from the Jammu & Kashmir’s Parliament. Since the Parliament of Jammu & Kashmir was dissolved in June 2018 and the region effectively placed under Presidential rule on 18 December 2018 by the BJP government the formality of consultation was executed by consulting the region’s governor who is an appointee of the BJP government. Thus the procedural working of the Constitution and purpose for incorporating Article 370 to make the special status of the region inviolable has been meticulously subverted.

Supreme Court has throughout post-colonial India stood to pacify the effect of the governmental overreach in many cases. The Supreme Court can iThe voices of at least 13 million persecuted Kashmiris stripped of their autonomy will coincide with a badly battered and a critically wounded Constitution of India in the Supreme Court. The n effect according to its State of Rajasthan judgment hold that, the Presidential decree to repeal Article 370 is an example of governmental overreach which has usurped the role of the Union Parliament and the State Parliament of Kashmir thus, has infringed the basic structure of the Indian Constitution thereby, making the repeal unlawful.

Ultimately, the Supreme Court will and must take in to account the Constitutional history of Article 370 as a reflection of the Instrument of Accession. Doing so, the Court ought to declare the presidential order unconstitutional and stand firmly in front of the majoritarian fascist government which is bent on upsetting India’s secular nature.