Ominously anti-federal: On the Supreme Court’s judgment on Article 370 and J&K’s special status

In upholding the removal of Jammu and Kashmir’s special status and its downgrading, the Supreme Court of India has imperilled the rights of States and weakened the limits on the Union’s power

December 11, 2023 10:09 pm | Updated December 12, 2023 09:48 am IST

The Supreme Court of India’s verdict upholding the abrogation of Jammu and Kashmir’s special status under Article 370 of the Constitution represents not merely judicial deference, but a retreat from the Court’s known positions on federalism, democratic norms and the sanctity of legal processes. It is undoubtedly a political boost to the ruling BJP and an endorsement of its audacious move in August 2019 to strip Kashmir of its special status and bring it on a par with other States. However, it is also a verdict that legitimises the subversion of federal principles, fails to appreciate historical context and undermines constitutional procedure. The most potent attack on federal principles is the Court’s unconscionable conclusion that Parliament, while a State is under President’s Rule, can do any act, legislative or otherwise, and even one with irreversible consequences, on behalf of the State legislature. This alarming interpretation comes close to undermining a basic feature of the Constitution as enunciated by the Court itself and may have grave implications for the rights of States, permitting a range of hostile and irrevocable actions in the absence of an elected body. The government and its supporters have much to cheer about as the Constitution Bench has endorsed its stand and rejected strong arguments from the petitioners, especially the point that the government had acted in a mala fide manner by imposing President’s Rule preparatory to the intended abrogation of special status without the need to involve any elected representative from J&K.

The government had adopted a complicated process to give effect to the ruling BJP’s long-cherished ambition of removing the State’s special status. It had gone on to divide and downgrade it into two Union Territories (UT). It began with a Constitutional Order on August 5, 2019 applying the whole of the Constitution to J&K and changing some definitions so that the State’s Legislative Assembly could recommend the abrogation instead of its now-dissolved Constituent Assembly, as originally envisaged in Article 370(3). Ultimately, the Court ruled that parts of the August 5 order were unconstitutional as they, in effect, amounted to amending Article 370 itself, which was impermissible; but, in a peculiar twist, it held the consequential notification on August 6 declaring Article 370 as valid and that the President was empowered to do so even without the legal underpinnings of the previous day’s notification that sought to bolster the validity of the action. The President could remove the State’s special status without any recommendation.

The Court has reasoned that the Constitution of India has been applied incrementally from time to time even after the Constituent Assembly was dissolved in 1957 and that the removal of special status is nothing but the culmination of the process of its integration. Even if this line of argument is seen as unobjectionable, the idea that in the absence the Constituent Assembly and in view of the subordination of J&K to the sovereignty of India, there is no fetter on the government’s intention to hollow out its residual autonomy is opposed to all canons of federalism and democracy. There is no doubt that J&K is not vested with any sovereignty. The Court says Article 370 represents no more than a form of asymmetric federalism and that additional features — such as having a separate Constitution, residuary power of legislation and requirement of its consent to some legislative subjects before Parliament can make law on them — will not clothe it with sovereignty. All of this is true. But, how this can mean that historical obligations owed to it and promises made by constitutional functionaries can be blown away at the ruling dispensation’s whim is beyond comprehension. Forgotten is the fact that the process of integration itself was by and large built on a constant dialogue between Kashmir’s leaders and the Union government, the context and conditions in which it acceded to India, the terms of the Instrument of Accession and the progressive extension of constitutional provisions with the consent of the State government over the years.

The Court’s failure to give its ruling on whether the Constitution permits the reorganisation of J&K into two UTs is an astounding example of judicial evasion. It is shocking that the Court chose not to adjudicate a question that arose directly from the use of Article 3 of the Constitution for the first time to downgrade a State. The only reason given is that the Solicitor-General gave an assurance that the Statehood of J&K would be restored. It is questionable whether a mere assurance of a remedial measure can impart validity to any action. At the same time, the Court upheld the carving out of Ladakh as a separate UT. On this point, the verdict is an invitation to the Union to consider creation of new UTs out of parts of any State. The Court’s position that there is no limit on the President’s power or Parliament’s competence to act on behalf of the State government and its legislature is equally fraught with danger. In particular, the reference to “non-legislative” powers of the State Assemblies poses a significant threat to the powers devolved to the States. A future regime at the Centre could impose President’s rule to carry out extraordinary actions through its own parliamentary majority that an elected government in a State may never do. Some examples could be ratification of Constitution amendments, abrogation of inter-State agreements, withdrawal of crucial litigation and bringing about major policy changes. The view that some of these may be restored by a subsequently elected government or House is of little consolation if actions taken under the cover of President’s Rule cause great damage to the State’s interests. This is a verdict that weakens institutional limitations on power, and, while rightly upholding Indian sovereignty over J&K, it undermines federalism and democratic processes to a frightening degree.

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