Revive the True Spirit of Constitutionality and Federalism in India: Article 370

The process of nationalist self-imagining in India is likely to remain in a nebulous state so long as the destiny of regional politicians is etched by the calligrapher in New Delhi and determined by maneuvers in the murky den of centralized federalism.

Will the BJP and Congress quit stalling the revival of the true spirit of parliamentary democracy and constitutionality in India, or will that remain a pipe dream?

While the arbitrary revocation of the special status of Jammu and Kashmir is being celebrated by the BJP and it cohort as the fruition of a promise made by its precursor, the Praja Parishad, I would argue that the federal structure and constitutional integrity of India have been seriously undermined.

In the current scenario, India is bereft of a cohesive and vibrant opposition and is ruled by a party that enjoys a brute majority in the Parliament. A coherent opposition and vigorous civil society groups in the country can call for the restoration of the letter and spirit of the Constitution of India.

The communication and information blackout, and incarceration of a large number of people, including elected politicians, in Kashmir have relegated every stakeholder in the former state to the background. In effect, dissenting voices, even those of legislators and parliamentarians of opposition parties, have been stifled. In doing so, the federal government has ignored the statute of limitations and constitutional checks and balances that ought to have prevented the over centralization of powers in Jammu and Kashmir.

Several communities/ families in Kashmir have been impacted by historical and politicocultural trauma, making it difficult for the younger generation to break through the seemingly impregnable wall of silence with which their elders protect themselves. The younger generation walks on egg shells around their elders who have repressed traumatic memories, and might find itself complicit in maintaining a stoic silence about the sturm und drang and unredressed agonies of the past. We, as a people, have been mourning the loss of lives, erosion of democratic institutions and aspirations, destruction of our socio-cultural fabric, and deliberate marginalization of our people—all of which have occurred over the past three decades with an unparalleled intensity.

The conflation of religion and politics by the ruling party of a “democratic” and “secular” country gnaws at those of us who are invested in pluralism and the accommodation of diverse religious identities within a secular framework.

Article 28 of the Constitution of India states, “no religious education shall be provided in any educational institution wholly maintained out of State funds.” In 2002, the petition filed by a group of activists alleged that the deification of religion in the curriculum was in violation of Article 28 of the Constitution and the pluralism of India. The response of one of the judges of the three-judge panel of the Supreme Court of India left much to be desired. Justice Shah, formerly a judge of the Gujarat High Court, ambiguously observed:

“None can dispute that [the] past five decades have witnessed constant erosion of the essential social, moral and spiritual values and increase in cynicism at all levels. We are heading for a materialistic society disregarding the entire value based social system. None can also dispute that in secular society, moral values are of utmost importance . . . for controlling wild animal instinct in human beings and for having civilized cultural society, it appears that religions have come into existence. Religion is the foundation for value base survival of human beings in a civilized society . . . Value based education is likely to help the nation to fight against all kinds of prevailing fanaticism, ill-will, violence, dishonesty, corruption, exploitation, and drug abuse.”

In countering Justice Shah’s opinion, Martha Craven Nussbaum, an American philosopher and the current Ernst Freund Distinguished Service Professor of Law and Ethics at the University of Chicago, discerningly observes, “What he [Justice Shah] recommended was teaching specific norms as good norms. (He mentioned the Hindu teaching of dharma as one good example.) How could mere “education about religions” counter the list of modern ills that he recognized? . . . It would be acceptable to recommend values if the values in question were the basic ethical values underlying the democracy and its Constitution. It is not acceptable, in India’s pluralistic democracy, to recommend religious values of any kind, however apparently vague or innocuous” (278).

The rhetoric of the BJP, which reinforces fanatical national pride, redemption of an exclusionary Hindu identity, and militant masculinity is being challenged by several secularists.

I am encouraged by the petition filed by a diverse group of retired bureaucrats, officers from Armed forces and others in the Supreme Court of India challenging the constitutional validity of the August 5 Presidential order revoking the special status granted to Jammu and Kashmir by a constitutional arrangement. The petition underscored, “The action of the Union of India, without ascertaining the will of the people either through its elected government or legislature or through public means such as referenda, has undermined the basic principle of democracy.” That is the argument that those of us who subscribe to the ideals of democracy and decentralization would make.

Given the sleight of hand with which the BJP has divested Jammu and Kashmir of statehood, people in the former state have been depoliticized and relegated to the position of bystanders in the resolution of issues that they are invested in. With the suspension of the Legislative Assembly of J & K and now detention of representatives/ legislators/ decision-makers, young people in Kashmir lack the space to reflect on their strategies, challenges, processes of negotiation, dialogue, and accommodation required to reach some kind of fruition, which would bring every stakeholder to the table. Indian civil society and press needs to come forward and preserve the heterogeneity and federal structure of India. Secularism means that all people have equal right irrespective of their faith and religious persuasions, and that everybody should respect the other’s feelings.


Nussbaum, Martha C. The Clash Within: Democracy, Religious Violence, and India’s Future.        Cambridge, Massachusetts: Harvard UP, 2007.




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Nyla Ali Khan is the author of Fiction of Nationality in an Era of Transnationalism, Islam, Women, and Violence in Kashmir, The Life of a Kashmiri Woman, and the editor of The Parchment of Kashmir. Nyla Ali Khan has also served as an guest editor working on articles from the Jammu and Kashmir region for Oxford University Press (New York), helping to identify, commission, and review articles. She can be reached at nylakhan@aol.com.

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