The history of constitutionalism around the world has been a chronicle of efforts to curb the brute nature of executive might, to protect the freedoms and liberties of the ordinary and the powerless. Unlike the ages of kings where a single monarch would make law, enforce it and decide disputes, the modern states spread these three functions across the legislature, judiciary and executive. Despite the distribution of power across the three separate arms of the states, the executive is the most powerful precisely because it controls the muscle on the ground by exercising police powers that can curb the rights of citizens. A successful constitutional democracy is one where the rule of law can contain the base instincts of those in power and guarantee the freedoms of those who are powerless.  

The events that have unfolded in Kashmir over the last days should serve as a stark reminder of the vulnerability of the common Indian to the truly frightening power of executive might. In which other constitutional democracy can an entire state be silenced for almost two weeks, especially when a decision regarding their future has been taken by the head of state? Yet, this is exactly what happened in Kashmir in the build-up to the abrogation of Article 370. It may be worthwhile to understand the three instruments of power that facilitated the silence in Kashmir because each of these instruments applies to even the rest of us in India.  

Article 356 

The pathway to Article 370 was cleared when the Governor dissolved the State Legislature last year under Section 92 of the J&K Constitution, followed by an invocation of President’s rule under Article 356 of the Indian Constitution. Those decisions were inspired partly by the prospect of the PDP and Congress forming a state government with the support of the National Conference after the PDP-BJP alliance fell apart. With the elected representatives of the state being dismissed, the state government was presided over by the Governor who, unlike the erstwhile elected Sadar-i-Riyasat of Kashmir, is appointed by the President and who in the absence of an elected Council of Ministers takes instructions from the government of India. 

By taking the assent of the Governor, who did not have elected representatives of Kashmir to advise him, the President of India was able to claim the legal fiction that the state government gave its assent under Article 370(1) to extend the entire Constitution of India to the state of Jammu and Kashmir.  This Presidential Order, apart from repealing the earlier Presidential Order of 1954, which applied only parts of the Indian Constitution to Kashmir, also laid the foundations for rendering Article 370 nugatory. All of this was possible because the Kashmiris who struck a deal on the provision with the Indian government in the late 1940s believed that the “state government” referred to in Article 370 would be under the control of their elected representatives and not in control of an unelected Governor appointed by the government of India.     

Section 144

The machinations around Article 370 aside, what should perhaps chill us more is the ominous silence from Kashmir while majoritarian triumphalism is on strident display on the streets of Indian cities. This silence in Kashmir has reportedly, been procured by invoking Section 144 of the Code of Criminal Procedure which allows District Magistrates to pass executive orders directing “…any person to abstain from a certain act or to take certain order with respect to certain property in his possession or under his management…”. Historically used to curb unlawful assembly, Section 144 has, unfortunately, been flexible enough to allow the government of the day to ban even telecommunications. 

In the Kashmir Valley, Section 144 has been used frequently in the past to temporarily clamp down on cellular services or data services. This time around, it appears that the Governor, acting on directions from an invisible hand, has ordered District Magistrates to clamp down upon even landlines and broadband Internet. The restrictions have meant utter silence from Kashmir. The websites of leading Kashmiri newspapers have been frozen as of August 5 when the Internet links with the Valley were snapped. Given that free speech is the lifeblood of liberty and democracy, the silence from Kashmir should remind us of our own tenuous liberties, especially since Section 144 applies across India.    

Preventive detention

No Indian story on the frightful executive powers of the Indian state is complete without preventive detention. The actions on Monday were preceded by announcements that Kashmiri politicians were being placed under house arrest, presumably under preventive detention laws, most likely under the notorious Jammu & Kashmir Public Safety Act, 1978, which was enacted by the J&K State Legislature. This law does not require the detainee to actually commit an offence. It is enough for the government to presume that a person may act in a manner prejudicial to the maintenance of public order. Prominent Kashmiri political leaders were presumably detained under this law because of their ability to marshall crowds to protest the central government’s actions.  

Lesson for us  

That the curbs on freedoms of Kashmiris over the last few days have been achieved under laws that could be invoked through pure executive action and which are virtually immune to judicial scrutiny, should perhaps worry us because all of the laws used to curb the freedoms of Kashmiris—whether it’s Article 356, Section 144 or preventive detention—also apply to the rest of us in India. It is time we learnt to protect ourselves better from politicians in power regardless of whether they belong to the Left or the Right or centre. If there ever was a modern manifesto of liberty and freedom in India it should revolve around reforming Article 356, Section 144 and preventive detention laws. 

At the very least, we should have the right to create some noise when we disagree with the government in power. To rob us of this right is to stifle democracy.