On December 11, India’s supreme court upheld ending the constitutional privileges of the Indian-controlled province of Kashmir, a disputed region claimed by both India and Pakistan. The decision was a sobering example of the Indian judiciary’s creeping servility in the era of Prime Minister Narendra Modi. Just as India’s vibrant, secular democracy is transforming into an authoritarian, ethnonationalist state, the supreme court, once vaunted for its fierce independence, is failing to stand up for the rule of law.
The Kashmir ruling is the resolution of a case that began in 2019. In a brazen and theatrical move that year, Modi’s government scrapped Article 370 of the Indian constitution, which gave Kashmir—the only Muslim-majority province in India—autonomy and special privileges relative to other states. Article 370 was a condition of Kashmir’s accession to India in 1947, toward the end of British colonial rule. The move to revoke its provisions was seen by many legal experts as illegal and unconstitutional, and more than a dozen petitioners, including private citizens, activists, and political parties, challenged the decision in India’s supreme court.
The court’s December verdict is remarkable for its sophistry: The ruling declared that the means by which the Modi regime had ended Kashmir’s autonomy was illegal—but the court nevertheless upheld the scrapping of the province’s constitutional privileges, arguing, somewhat tendentiously, that Article 370 was merely a temporary provision. The contradictory reasoning and pusillanimity of the verdict led a prominent political commentator to proclaim that “the last pillar of Indian democracy has fallen.” Prashant Bhushan, a well-known civil-rights lawyer, described the judgment as an act of capitulation, writing that the court had first decided “that the conclusions it wanted to reach were to endorse the Government’s actions” and “then invented some arguments to justify those conclusions.”
The judgment’s implications for Indian federalism beyond Kashmir, in a continent-size nation more polyglot and diverse than Europe, are troubling. At the country’s founding, most political observers believed that India was too heterogeneous and unwieldy to hold together. That the country has defied those predictions is in large measure attributable to its constitution, a remarkably imaginative and capacious document that stands as one of the great achievements of the postwar era. Now the court has signaled that it is willing to accept a naked power grab by the federal government at the expense of provincial and state authorities. [Continue reading…]