By- Inamul Haq
Research Scholar, Central University of Gujarat.
After the abrogation of Article 370 and 35 A by the Indian government, the valley was turned into prison. Curfew, communication blockade, internet shattered, and heavy militarization were established in each and every corner of valley. However, civilian deaths declined throughout the autumn, by organising salient protest prompted Indian newspapers to announce a return to normalcy in Kashmir. According to H. Duschinski and S. N. Ghosh, established across decades of conflict, the media frame of “return to normalcy” characterizes politics in the region as a cyclical rise and fall of mass uprising and state repression in Kashmir Valley, and a recurring escalation and de-escalation of cross-border armed hostilities and diplomatic tensions between India and Pakistan (2016). This account has become especially dominant since the beginning of the current phase of the resistance movement in 2008, 2009, 2010, 2016, 2019 and it is aligned with India’s longstanding military–political strategy for managing Kashmir, which has produced what Paul Staniland (2013, 932) calls a “paradox of normalcy” wherein the opponents are arbitrarily detained and other side electoral competition is encouraged. Besides that, the rule of law is hailed, but state accountability is extremely weak; and generally non-violent mass mobilization is met with heavy-handed security forces.” (2016). The article will focus the rule of law with the present situation of Kashmir.
According to Jeremy Waldron, the rule of law is considered as one of the important political ideals of the contemporary period. It is one of the principles of modern political morality, human rights, and democracy. There is the importance of the rule of law as it is invoked whenever the authorities are using their illegal measures and oppressive actions and ignoring the norms and procedures laid down by the country’s laws or constitution. The interfering of state with the judiciary, arresting without legal procedure, detained without due process are being treated as abuses to the rule of law.
History had witnessed a huge number of authorities and regimes that have ruled their reign through their own laws, which were severe in nature. These regimes used laws to crackdown the society and anyone challenging their power was being dealt with the rule of law that is being applied uniformly across the society. The examples of Mussolini, who created the Italian fascist party, the Nazi party of Hilter and the communist party of Mao Zedong in China and similarly Modi, who is on the edge to create Hindutva. These leaders, who used the rule of law in an authoritarian way to justify their tyrannical regimes.
In the contemporary era, the rule of law is also being violated by interfering in the judicial matters and carrying out illegal detentions without the safeguard of procedure established by law. There are significance and relevance of the rule of law with human rights as it provides the foundation of equality, development, accountable government and respect for human rights. The rule of law springs from the rights of an individual developed throughout history. The development and birth of human rights are inextricably linked with the dynamics and progressive advancement of the doctrine of the rule of law. There is a close relationship between rule of law with human rights as rule of law is the implementation mechanism which turns them from principle to reality.
As per Scheuermann, after the end of the cold war, there comes the terrorist attack of September 11, 2001, which opened the doors not only in the United States but to the rest countries to extensions of discretionary forms of emergency executive authority in the nature of the emergency. The state of emergency is known by different names like the state of exception, the reason of state, state of siege is a condition, in which a state is facing the moral threat and in response, the state is indulged in such things that would never be justifiable even in normal times.
The question arises that can emergency becomes justifiable in the contemporary period, when there are international human and humanitarian laws that do not allow the violation of liberty even in war crisis. The emergence of democratic and constitutional democracies has created justifications for using violence in order to combat the threat. However, democracies have embraced both separation of powers and justiciable system of rights, which cope with an emergency in terms of viability and accountable government. Moreover, constitutional democracies are having long term respect for human rights in the constitutional order.
In the early 18th and later 19th centuries, the European constitutions elaborated the idea of the state of emergency. The French constitutions of 1795 and 1800 were written for a time of emergency. Both these constitutions gave unlimited powers to the head of the state and did not ensure separation of power and respect for human rights. Similarly, after the end of the First World War, the Weimar Constitution (1919) was written in Germany tried to ensure constitutional failure in the time of emergency did not occur. The drafters inserted Article 48, that defines the constitutional state of emergency. The article 48 gives the president extraordinary powers to cope with extraordinary threats to the state. Besides that, it ensures the president to suspend the basic rights and use military might to fight the threat. The use of unlimited powers given by Article 48 created chaos in terms of violence, economic crisis and political disagreements. The Weimar constitution was sacked by Germany and Carl Schmitt also played a role in it. Carl Schmitt who gave the concept of the state of exception justified it in a constitutional democracy (Ibid). In his work ‘Political Theology’ he started with the sentence that “sovereign is he who decides on the exception”. Schmitt connects the sovereign with the capacity to define when a situation can be handled within normal rules and it must be treated as an exception to normal governance. He stated that a sovereign has the ability to operate outside the juridical normality. According to him “the precise details of an emergency cannot be anticipated, nor can one spell out what may take place in such a case, especially when it is truly a matter of an extreme emergency and of how it is to be eliminated. The precondition, as well as the content of jurisdictional competence in such a case, must necessarily be unlimited. From the liberal constitutional point of view, there would be no jurisdictional competence at all. The most guidance the constitution can provide is to indicate who can act in such a case” (Schmitt, 2005).
According to Scheppele that in a constitutional state, the rule of law restrains the ruler for using power. However, the rule of law cannot restrict the ruler in the exception, because exception makes visible the incompleteness of the constitutional design by its nature. it forces the sovereign to act outside the rules and regulations in case of emergency. In such a situation, the sovereign has all of the powers to justify the emergency in order to cease the situation and reimpose the rule of law.
Carl Schmitt favours that the leader of the state should be allowed to do everything to protect law and order. Historically, the state of exception has its influence on the political and legal aspects of an individual. During this period, there remains the suspension of normal functions of government, suspension of civil liberties, such actions are political and are having an influence on the basic rights of the citizens.
The present scenario of the state of Jammu and Kashmir represents the same image as within the abrogation of article 370 and 35 A thousands of people including politicians were arrested and detained under Public Safety Act. The communication blockade that remained around 80 days proved that rule of law is a myth in India and revised the dictatorship of Hitleronce again.