December 17, 2023

An Egregious Judgment

THE Supreme Court judgment on the abrogation of Article 370 of the Constitution and the dismantling of the state of Jammu and Kashmir into two union territories is an egregious example of the constitutional court capitulating to the misuse of powers by the executive.  Four years after the event, the three concurrent judgments of the five-member constitution bench, headed by the chief justice of India, have larger and long-lasting implications that strike at the roots of federalism and states’ rights. 

By upholding the validity of the presidential order abrogating Article 370 at a time when the state of J&K was under president’s rule, the Supreme Court has given its imprimatur to this latest betrayal of the commitment made to the people of J&K at the time of accession to the Indian Union.  By ruling that Article 370 was a temporary measure and there was no ‘internal sovereignty’ for the state of J&K, the court has bypassed the question of why a special status was accorded to J&K and how such a status was not something temporary, but part of a solemn commitment made to the people of Kashmir by the constitutional authorities then.  Article 370 represented a constitutional guarantee that this status is something which would be defined and evolved with the concurrence of the representatives of the people of J&K.

The judgment delivered by the chief justice, on behalf of three members of the bench, makes the astounding claim that Article 370 was intended to “enhance Constitutional integration between the Union and the State of Jammu and Kashmir” rather than as a provision for special status of J&K.  It further claims that the continuous exercise of power under Article 370 (1) by the president indicates that the gradual process of constitutional integration was ongoing.

The history of Article 370 shows that it was constantly misused to deny autonomy and encroach on the states’ powers over the years by the president exercising this power.  How was that done?  “Concurrence” was given under various spells of president’s rule by the centre’s own-appointed governor.

However, as per the peculiar logic of the verdict, “The declaration issued by the President under Article 370 (3) was a culmination of the process of integration and as such is a valid exercise of power”. 

By this reasoning of the learned justices, J&K does not deserve even the special features or rights given to some of the north-eastern and other states in Article 371.  There can be no better legal justification for the decades of denial of democracy and autonomy to J&K.

Even when the court has found the amendment of Article 367 to redefine the constituent assembly of Jammu and Kashmir as a legislative assembly as ultra virus, the judgment circuitously goes on to state that this does not affect the validity of the consequent notification by the president abrogating Article 370.

The other dangerous feature of the judgment is the endorsement of the Modi government’s authoritarian and unitary drive, which seeks to undo whatever limited features of federalism and states’ rights that exist in the constitution.  The Supreme Court has refused to adjudicate on the validity of the Jammu and Kashmir Reorganisation Act adopted by parliament in 2019, which led to the dismantling of the state of Jammu and Kashmir and the creation of two union territories.  The issue was whether Article 3 of the Constitution was validly used and whether this Article can be used to downgrade a state to the status of a union territory. 

The court, in a blatant act of judicial abdication, stated that it was not going into the matter since the solicitor general had given an assurance that statehood to J&K would be restored.  This was a mere assurance with no timeframe.  At the same time, the court ruled that the formation of the union territory of Ladakh was valid.  The court has said elections should be held by September, 2024 but not specified that statehood should be restored before that.

As per Article 3 of the Constitution, the president has to send any proposal for change of boundary of a state or a merger of state or a creation of a new state to the state legislature concerned for its views. It is only after receiving the state legislature’s response that parliament can legislate on the matter. In the case of Jammu and Kashmir using Article 356, the state assembly had been dissolved in November 2018.  So there was no state legislature, which was consulted on the matter. 

Under president’s rule, it is parliament which is supposed to legislate on the matters of the state and hence, the legislation to break up the state into two union territories was discussed and adopted by parliament.  This, in itself, violated the procedure of Article 3, wherein the state legislature had to be taken into confidence even though its opinion was not binding on parliament.  Further, the basic question, whether under Article 3, a state can be legislated out of existence was not addressed by the court. The upholding of the validity of the formation of the union territory of Ladakh opens the way for similar exercises in future. A ruling party with a brute majority in parliament can use the situation arising out of the imposition of president’s rule in a state to pass legislation in parliament to derogate its status by creating a part of it as a union territory.

The Supreme Court verdict gives a stamp of approval to the centre’s unitary drive and poses a serious threat to the federal principle and to the balance of centre-state relations.  When Justice Chandrachud took over as the chief justice of India, there was some expectation that the Supreme Court would cease to become an executive court.  Alas, such hopes have been belied. 

(December 13, 2023)