The Supreme Court’s decision to form a five-member Constitution Bench to examine the validity of the abrogation of the special status given to Jammu and Kashmir puts an end to apprehensions that its response to the Centre’s legal measures since August 5 will only be one of quiet acquiescence. The court appeared reluctant to intervene in the immediate aftermath of the decisions when the restrictions imposed on political activity, communications and movement of the people were challenged. Instead, it chose to give enough time to the Centre to stabilise the situation. It seemed to afford wide latitude to the executive to decide the extent to which fundamental rights, including the freedom of the media, would be restricted in the name of achieving greater integration of Jammu and Kashmir with India and preparing for its development. In some habeas corpus matters, the court is yet to examine the legality of the detention of the persons concerned. True relief in such cases lies in ascertaining the whereabouts of a detenu and determining the lawfulness of the detention, but in a couple of matters, the court has only “allowed” the petitioners to travel to Kashmir and meet the detenus. Lawyers and activists have begun drawing parallels with the court’s infamous approbation of the suspension of the writ of habeas corpus during the Emergency in the ADM Jabalpur case.
The petitions before the court cite many grounds for challenging the President’s August 5 Order, by which the Order of 1954, which set out the constitutional provisions applicable to J&K, was superseded. A substantial question is on the validity of the substitution of the concurrence of the Governor for that of the government while under President’s Rule; in effect, the Centre is taking its own consent to alter the status of the State. The replacement of the term ‘Constituent Assembly’ (of J&K) found in Article 370 with the term ‘Legislative Assembly’ is also under challenge. Another question that looms large is whether a federal unit can be downgraded from the status of a State to that of a Union Territory, a move for which there is no precedent. The constitutional morality of the rest of the country deciding the destiny of a State without the consent or participation of its citizens is also a serious issue the court cannot ignore. It does appear that there is widespread popular support for the government’s decision to declare Article 370 inoperative and to divide the State into two Union Territories. Yet, the court is duty-bound to examine the legality of the measures taken by the President and Parliament on August 5 and 6. The challenge before the court is to give a reasoned verdict on these questions of constitutional importance, with far-reaching implications for democracy and federalism, without being swayed by the popular mood in J&K or the rest of India.