Responding to Democratic Decay in South Asia: The ‘Federalism Constraint’ on Regional Emergency Powers in India

Abstract

Abstract 2020 marked the 14th consecutive year of democratic decline in the world, and South Asia has been no exception to this global phenomenon. This paper focuses on one particularly egregious onslaught on democracy in India. In August 2019, the Indian government stripped the former state of Jammu and Kashmir of its special status under the Constitution of India, and reorganized its territory into two union territories. The government’s use of its regional emergency powers provided the legal basis for operationalizing these changes. Their use in this manner raises the question of the proper scope of these powers, independently of whether the proclamation of the regional emergency was constitutionally valid. What, if any, are the substantive limitations that constrain the center’s exercise of regional emergency powers? This paper offers a partial response to this question. It relies on the basic structure doctrine to theorize a substantive limitation on their exercise and situates this limitation in the wider legal and historical landscape on regional emergency powers. Articulating it as the ‘Federalism Constraint’, the paper argues that, even when a validly proclaimed regional emergency is in force in a state, the center cannot exercise its regional emergency powers to effect a permanent change to the detriment of the state, as doing so would damage federalism, a basic feature of the Constitution. On this basis, the paper argues that the recent changes to the status of the former state of Jammu and Kashmir are unconstitutional.