05/08/2019 9:25 PM IST | Updated 05/08/2019 9:25 PM IST

BJP's Manoeuvring Of Article 370 And The Retreat Of Liberal Politics

The opposition can’t hope to reverse the current political scenario without a leader who can match Narendra Modi’s dominance in making day-to-day decisions.

Hindustan Times via Getty Images

All the speculation around the Modi government’s plans for Jammu & Kashmir came to an end on Monday with President Ram Nath Kovind issuing a public notification and home minister Amit Shah submitting a Bill in the Rajya Sabha seeking the scrapping of Article 370 and Article 35A. As the subsequent debate ensued in the Upper House of Parliament, it became clear that the objections were less on the proposed measure, which sought the abrogation of Article 370 which gave the state of Jammu and Kashmir special status to have its own rules and modes of deciding citizenship. Rather, the main objections were about the very procedure which, critics said, lacked fairness. Therefore, from a liberal vantage point, the primary objection was on the grounds of ethics and morality about the way the bill was introduced. There was a legal objection to the process, but it seemed almost secondary to ethical considerations.

A cursory glance at the events of the past week would indicate that all the hallmarks of the liberal school of politics, namely, greater transparency, a consensus-seeking attitude and adopting a middle path, have been trampled upon by the BJP to push through this move. It sought to do this by 

a.) re-reading constitutional norms in the light of the subjective political situation in the state

b.) employing the exceptional and extraordinary measure of secrecy and 

c.) delegating the recommendatory power to the governor. 

It can be argued that the third point is technically legal because, as per Article 370(3), it is the Constituent Assembly of the state which has the power to recommend the abrogation of the said article to the President. Since the constituent assembly of J&K does not exist anymore, this power is delegated to the state assembly of the state. But as J&K is under President’s rule, legally the state assembly is suspended. So as per the constitutional provision, the governor assumes all the power of the Assembly.

Therefore, in a strictly legal sense, the governor could recommend such a measure, how baffling and unethical it might seem, especially considering governor Satya Pal Malik was, until Sunday, denying any such move despite continuous questioning from the media.

What also deserves attention is the BJP’s political timing: The J&K legislature comprises 87 elected members, wherein the Kashmir valley alone accounts for the majority, i.e, 46 MLAs. Jammu has 37 MLAs and Ladakh 4. Therefore, taking into account the political mood of the Valley, it would have been near impossible for an elected state Assembly in the state to pass a resolution to scrap Article 370. Therefore, the BJP had no choice but to go for the extraordinary measure of scrapping the Article when the state was under President’s rule.

But what has got this Bill passed on Monday is not merely the BJP’s legal ingenuity, which indicates that it will push through more changes like these by taking everyone by surprise and abandoning any pretense to liberalism. Rather, it is the more cunning invocation of the ‘political’ by the government that ensures its hegemony over its rivals.

For instance, by arguing that Article 370 stood in the way of an egalitarian and gendered notion of Citizenship as it marginalized Dalits, tribal sections and women in the state, the BJP was able to isolate liberals who were trying to take recourse to existing political norms and common sense. This is one reason why the Bill drew support across the political spectrum, including from the Bahujan Samaj Party, Aam Aadmi Party and even the Bodoland People’s Front. While the Congress voted against the Bill, its chief whip in the Rajya Sabha resigned, saying its stand was “against the mood and emotions of the nation”.   

The BJP not only succeeded in catering to the popular nationalist sentiment but also managed to entrap liberal critics by framing its arguments for the law to support a logic of egalitarianism by invoking the empowerment of subaltern sections.

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Here, it would be pertinent to look at the historical debate in 1920s Germany, the Weimar Republic, between the votaries of Liberal Jurisprudence and their arch-rival Carl Schmitt. In his seminal book, Political Theology: Four Chapters on the Concept of Sovereignty, Schmitt, the German jurist and political theorist, critiqued the ‘liberal jurisprudence and school of thought’ by pointing out that a state and society doesn’t run according to the static texts of its constitution. Rather, the constitutional norms are mediated by the situations of the day wherein the law-enforcer (the leader with a mandate) has to take a call and go for a decision. Hence, for Schmitt, it’s the politics of the decisions of the day that supersedes and determines the constitutional morality of a nation.

For Schmitt, sovereign is he who decides on the exception, and the leader has the right to exercise “exception over the norm” and “ordinary over extraordinary”. This, to him, is the essence of politics, which gets limited by the very liberal approach of privileging the principle of unanimity and consensus over partisan decision-making. The liberal school, naturally, was diametrically opposed to the Schmittian conception of politics and society and the state.

The BJP not only succeeded in catering to the popular nationalist sentiment but also managed to entrap liberal critics by framing its arguments for the law to support a logic of egalitarianism by invoking the empowerment of subaltern sections.

The approach of the second Modi government must also be seen in continuum with its earlier decisions. The party has gone ahead with passing the triple talaq bill, despite the objection by opposition parties that the said Act violated Article 14 of the Constitution by turning the civil crime of a Muslim husband of divorcing his wife into a criminal one. There also, BJP created a dilemma among the opposition, taking recourse to the liberal conception of invoking the constitutional norm of Article 14, which ensures everyone’s equal before the law by privileging the political logic of gender justice. 

Its decision to go for scrapping Article 370 demonstrates the core characteristic of the current regime. It follows a regime of decision-making wherein the old procedures, constitutional norms and established conventions aren’t considered as superseding framework. The fact that in the current session, the two Houses of Parliament in its 35 sittings have passed an astounding 26 bills proves that a new mode of politics has emerged in India.

At this juncture, it’s too early to predict what the fallout of this new mode will be. However, this certainly heralds India into an intense state of political contestations wherein the domain of political permeates every sphere and issue in a big way. While the advocates of Schmittian politics and jurisprudence would endorse the unfolding of the intense state of the political in India, the liberal Scholl is certainly on the path of a grand retreat. Any shift from the current scenario and any liberal quest to work towards a massive reversal of such a mode would require a leader who can match Modi’s sovereignty in day-to-day decisions.

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