Illiberal Constitutionalism: The Curious Case of the Executive Head of Jammu and Kashmir

Zaid Deva

Gujarat National Law University

The political philosopher, Montesquieu in his seminal work The Spirit of the Laws wrote, “When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.” Coupled with an impartial and independent judiciary, this became his famous doctrine of separation of powers which has been widely accepted by constitutional democracies today.

In December 2018, the Jammu and Kashmir (‘J&K’) administration led by Governor Satya Pal Malik enacted a law on “sextortion” becoming the “first state in India to have an explicit law on sexual exploitation of women”. While this decision has been widely hailed as progressive, one cannot but question the basis on which an executive head can engage the law-making process when the legislature is dissolved.

The administration under Governor Malik has made amendments to laws ranging from preventive detention and public safety to enacting the state’s own law on Aadhaar (the world’s largest biometric system which was recently upheld by the apex court of the country while striking down non-compliant provisions), to even making laws on subjects in terms of which he had promulgated ordinances when PDP-BJP (the elected government) was in power. In total, 55 bills were passed in the 6 months of the Governor’s rule. 

While there is a larger debate going on in India about the need for the Governor’s office, the position in J&K is very peculiar. The power to “assume to himself all or any of the functions of the government of the state” flows from S.92 of the Constitution of J&K. S.92(1)(b) of the Constitution also allows the Governor to suspend in whole, or in part, any provision of the Constitution. Whereas, S. 92(4) allows the Governor to take over the powers of the legislature to make laws.

Under colonial rule, the Indian subcontinent was divided into ‘British India’, which comprised of the provinces directly ruled by the Crown, and the ‘Indian States’/‘Princely States’, which were semi-sovereign – ruled by a local ruler over which the British exercised paramountcy. J&K was one such princely state. It later acceded to India, according to the terms laid down in the Instrument of Accession which was incorporated into the Indian Constitution, in the form of Article 370. This allowed J&K to have its own constitution; it also ensured any central law, or any provision of the Indian Constitution, not covered by the Instrument could be extended to the state only if the state’s constituent assembly concurred. This gives J&K special status in the Indian constitutional space.

The constituent assembly of J&K was tasked with coming up with a constitution for the state, deciding on the finality of accession to the Indian Union, deciding on the extent of federal jurisdiction, and taking a decision on the office of the executive head. After deliberations the position of the hereditary ruler was discontinued and in its place the office of the Sadar-i-Riasat was created. Notably the Sadar-i-Riasat was to be elected by the legislature in terms of the S. 27 of the Constitution, read with the First Schedule. By way of the 6th Amendment Act, 1965, the office of the Sadar-i-Riasat was converted into a Governor’s office making this position similar to that in other states, while the special powers vested in the Sadar-i-Riasat were retained. My intent here is not to discuss the question of constitutionality of the amendment, although it can be argued that the amendment is violative of the “basic structure” of the constitution making it an unconstitutional constitutional amendment. The J&K Constitution was not liberating and did not have a transformative agenda like its Indian counterpart, its role, as laid down in the Preamble, was restricted to “further define the relationship of the state with India”. The office of the Sadar-i-Riasat was instrumental in this and hence an “essential feature”.

However, over the years Article 370 has been used to extend various provisions of the Indian Constitution to enlarge federal jurisdiction. The problem lies here: whenever such changes have been made to the constitutional relationship, it has always been the governments negotiating on both the sides, with no role played by the legislatures of either parties – the President of India who extends provisions by a constitutional order on the recommendation of the government of J&K. In terms of Article 370, ‘government of the State’ means the person for the time being recognized by the President on the recommendation of the Legislative Assembly of the State as the Sadr-i-Riyasat (now Governor) of J&K, acting on the advice of the Council of Ministers of the State for the time being in office. This is what I refer to as “illiberal constitutionalism” in terms of J&K constitutional law: – The J&K Constitution vesting law making powers in the constitutional head; and the Indian Constitution in its application to J&K allowing the President to make any modifications recommended by the state government (as per Article 370).

This kind of illiberalism in constitutional law is different to what has been conceptualized by Mark Tushnet; his argument is more based on the equality guarantee of national constitutions and the deviance observed in practice. My example is more grounded in politics and law-making, as defined by Montesquieu. It includes examples such as Governor giving concurrence to the Presidential Order in 1986 extending Article 249 of the Indian Constitution to the state, which infringed on its legitimate rights as a state. Article 249 allows the Parliament to legislate on matters enumerated in the state list if national interest so demands. The second aspect includes extending the life of Article 370 beyond the term of the J&K’s constituent assembly paving the way for enlargement of federal jurisdiction thus entering an illiberal constitutional phase.

Coming back to the Governor’s powers, in its current form, the J&K Constitution vests unbridled legislative powers in the office. It is my argument that elected or federally appointed, the executive head must not have legislative powers. That the elected head was converted to a “federally appointed agent” with law making powers is patently undemocratic and violative of the federal scheme envisaged. In contrast to this, when an emergency is declared under Article 356 of the Indian Constitution the President assumes the powers of the government of the state barring the legislature’s power. Clause 1 is clear on this – that all of the powers of the government can be exercised by the President barring legislative powers. It must be noted here that the powers exercised by the President during an emergency are with the aid, and on the advice, of the Council of Ministers, who are then responsible to the Parliament. No such checks are on the Governor.

Strangely the amendment has come to be recognised as merely bringing a “change in nomenclature” whereas it has resulted in effective dilution of the autonomy of the state with respect to the appointment of the executive head. The “change in nomenclature” was challenged in the case Mohd. Damnoo v. State of Jammu & Kashmir where it was held that, “It is true that the Governor is not elected as was the Sadar-i-Riyasat, but the mode of appointment would not make him any less a successor to the Sadar-i-Riyasat. Both are heads of the State…there is no question of such a change being one in the character of that Government from a democratic to a non-democratic system.”

In the present case, the court failed to appreciate that Constitution of J&K sought to establish a republican form of government with an elected constitutional head. The Report of the Basic Principles Committee, while arguing for abolition of hereditary rule, said, “consistent with the democratic aspirations of the people of the State, the office of Head of the State should be based upon the elective principle” (Report of the Basic Principles Committee, Constituent Assembly Debates, Volume I, 10 June 1952 Sheikh Abdullah).

Either this exercise of legislative power can be judicially constrained – the high court or the apex court can lay down guidelines for the exercise of such powers, or, as I have argued for elsewhere, a new constituent assembly can be convened. Convening an assembly will allow for doing away with the legislative powers vested in the executive head, and it could also give an opportunity to undo the effects of the 6th Amendment. The latter seems to be a more definite solution in light of the Constitutional Application Order passed in 1975, by which the legislature of the state was barred from amending the provisions related to the appointment, powers and functions of the Governor.

Zaid Deva is a student of law at Gujarat National Law University.

Suggested Citation: Zaid Deva, ‘Illiberal Constitutionalism: The Curious case of the Executive Head of Jammu and Kashmir’ IACL-AIDC Blog (30 January 2019) https://blog-iacl-aidc.org/2019-posts/2019/1/29/illiberal-constitutionalism-the-curious-case-of-the-executive-head-of-jammu-and-kashmir