On Monday, the Supreme Court asked Kashmiri MP Mohammad Akbar Lone to file an affidavit stating that he owes allegiance to the Constitution of India, and that Jammu and Kashmir is an integral part of the Union of India.

Chief Justice of India DY Chandrachud said that since Lone had moved the Supreme Court under Article 32 of the Constitution, he has to believe in the sovereignty of India and that Jammu and Kashmir is an integral part of India.

Article 32 entitles individuals to move the Supreme Court for the enforcement of fundamental rights prescribed in Part III of the Constitution.

Legal experts to whom Scroll spoke said that there is no legal requirement of swearing allegiance to the Constitution in order to approach the Supreme Court for a legal or constitutional right. Moreover, such a direction sets a dangerous precedent.

Abrogation challenge

The Jammu & Kashmir National Conference party’s Lone, a member of the Lok Sabha from the Baramulla constituency, is one of the petitioners in the challenge to the abrogation of Article 370 of the Constitution and the revocation of the statehood of Jammu and Kashmir by the Modi government in 2019. The case was heard by five-judge Constitution bench of the Supreme Court with the verdict reserved on Tuesday.

The court directed Lone to file the affidavit after being informed that he had allegedly raised the slogan “Pakistan zindabad” or “long live Pakistan” in the Jammu and Kashmir Legislative Assembly in 2018.

Lone was an MLA from 2002 till 2018. Additionally, he has served as Speaker in the Assembly as well as a minister in the then Jammu and Kashmir state government.

Solicitor General of India Tushar Mehta, representing the Union government, had demanded that Lone file an affidavit pledging allegiance to the Constitution, as well as state on record that he was opposed to terrorism and secessionist activity by Pakistan in Jammu and Kashmir.

This argument was accepted by the Chief Justice Chandrachud-led bench, which then asked Lone’s counsel that he would have to furnish such an affidavit.

Ominous implication

However, neither the government’s lawyers nor anyone on the bench elaborated why merely saying “Pakistan zindabad” required such an affidavit.

The implication being that saying something pro-Pakistan puts in doubt one’s allegiance to the Constitution of India and to the sovereignty and integrity of India. In other words, according to the Supreme Court and the Union government’s counsel, someone owing allegiance to the Constitution of India, who believes that Jammu and Kashmir is a part of the Indian nation, cannot say anything pro-Pakistan.

This position is not reflected in any law.

It is not clear whether as per this standard, saying something similarly favourable for any other country would bring into question one’s allegiance to the Constitution of India too.

No legal requirement

Legal experts told Scroll that there is no legal precedent for such an order.

“There is no requirement in the Constitution that a claimant before a court must declare any allegiance to the Constitution,” said Tarunabh Khaitan, Professor (Chair) of Public Law at the London School of Economics and Political Science.

Senior advocate Mohan Katarki, who practices at the Supreme Court, said, “The Supreme Court presumes that every litigant, including non-citizens, who knock the doors of justice, has expressed their allegiance to the institution and the Constitution, which is the supreme law.”

According to him, this presumption “shouldn’t be tested by demanding an affidavit unless there are strong reasons to believe that an oath of allegiance to the Constitution is necessary”.

Access to fundamental rights

“Citizens are entitled to rights irrespective of their views, no matter how abhorrent,” said Anuj Bhuwania, professor at the Jindal Global Law School at OP Jindal Global University. “Even if one doesn’t believe that Jammu and Kashmir is an integral part of India, that is immaterial to the exercise of the right under Article 32.”

Khaitan agreed. “I have little doubt that the rights of a person who argues to replace the current Constitution with an entirely new one, based on entirely different values, are also fully protected by our current liberal Constitution,” he said. “It is a defining feature of liberal constitutionalism that it protects even those who disagree with its basic tenets.”

Bhuwania asked, “Suppose there is a case of illegal detention. If the person so detained has objectionable or even ‘anti-national’ views, can courts refuse to grant them protection?”

He added that as an MP, Lone had already sworn allegiance to the Constitution of India, as well as to uphold the sovereignty and integrity of India, as part of the oath or affirmation that each MP makes upon being sworn into the Parliament.

Dangerous precedent

Bhuwania pointed out that the right to approach the Supreme Court under Article 32 is available not just to Indian citizens, but to foreigners as well, who may bear allegiance to the constitutions of their respective nations.

He said that through this direction, Chandrachud may have read a new proviso under Article 32. He termed it a “perverse interpretation” and a “dangerous judicial precedent”.

Khaitan called the order “unfortunate and illegal”.

He added: “It appears to be an attempt to mollify a belligerent government trying to bully courts into submission. One can perhaps understand the thinking behind it, but one cannot justify it.”