With Article 370 verdict, SC has let down federalism

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While accepting that federalism is a basic feature of the Constitution, the SC still holds that the Union may extinguish statehood at will.

In an earlier article in this newspaper (‘Four years on, J&K questions,’ IE, August 7) I had said that the abrogation of Article 370 raises three troubling, unanswered questions for the future of federalism in India. The Supreme Court’s judgment in In re Article 370 of the Constitution delivered on December 11 upholding the abrogation of Article 370, the bifurcation of Jammu and Kashmir, and its downgrading to a Union Territory only heightens concerns for India’s federal structure. Though limited to the context of Article 370, the verdict upholding the actions of the Union government has serious implications for other states as well. In this article, I will explore these implications in the context of the three questions I had raised.

The first question that I raised was what does “statehood” even mean under the Constitution if the Union could unilaterally and permanently extinguish a state. In the context of J&K, the petitioners argued that Article 3 of the Constitution does not give the Union the power to remove “statehood”. While the Union has the power to rename a state or change its boundaries, it cannot simply “downgrade” a state to a Union Territory under the Constitution. If federalism is indeed a basic feature of the Constitution, a casual cancellation of statehood cannot be accepted.

The majority judgment authored by CJI Chandrachud completely avoids answering this question. This is unfortunately in consonance with the SC’s recent trend of avoiding adjudication of controversial questions. The reason for such non-adjudication could be an “assurance” by the Union that J&K’s statehood will be “restored” soon. This is entirely irrelevant to the question raised — if the action was justified in the first place. However, the refusal to answer this question is also, unwittingly, an answer — the court implicitly accepts the Union’s argument that it can extinguish statehood at will.

While accepting that federalism is a basic feature of the Constitution, the SC still holds that the Union may extinguish statehood at will. On the one hand, the court says that India’s federal units, the states, owe their powers to the Constitution and not to the Union. But on the other hand, it implicitly accepts that they owe their existence to Parliament no matter what the Constitution says. This part of the judgment is not unique to Kashmir since the power under Article 3 can be invoked against any state. The direct implication of the Supreme Court’s judgment is that the Union may choose to reduce any state to a Union Territory for as long as it wants and for whatever reason it wants.

The second question I raised was one related to the democratic process: Do the people of a state have a say in how they are governed? Here the petitioners argued that the abolition of J&K’s statehood required consultation with the legislature of J&K as the representatives of the people of the erstwhile state.

The judgment, however, frames this as a mere “procedural” issue relating to the exercise of power under Article 3 instead of a question of democracy. The court holds that since J&K was under the President’s Rule and the President declared that the Union Parliament would be consulted instead of the J&K legislature, this is sufficient compliance with the “procedure” of Article 3. Further, since the President had already issued a Proclamation stating that the requirement to consult with the state legislature will not apply to J&K, the court holds that there was no “procedural violation”.

The basis for doing so is a somewhat convoluted reading of the SC’s judgment in SR Bommai v Union of India (1994). Apart from a misreading of the judgments in Bommai, the court does not seem to see the irony in using a judgment which expanded federalism in India to dramatically undermine the same principle. In essence, the court seems to say that the constitutional requirement of consultation with the state legislature under Article 3 is trivial and the people of a state have no say on the statehood of their state.

On the third question — the future of asymmetrical federalism — the SC puts Article 370 in a different category from Article 371-A to Article 371-J. It holds that Article 370 was intended to be “temporary” in view of the historical context, placement and text of this Article. While it is correct that Article 370 was intended to be temporary when it was introduced and it was therefore placed in the “Temporary and Transitional Powers” part of the Constitution, the text of Article 370 does not suggest that it was meant to be temporary. Unlike other clauses, its application is not limited to a specific period of time, or till another event takes place. Article 370 was intended to operate till it was amended by Parliament under Article 368 or abrogated by the President in accordance with the procedure provided for under clause (3) of Article 370 (that is consultation with the Constituent Assembly of J&K).

The court’s argument on the “temporary” nature of Article 370 stands on a weak footing. However, this approach does not fundamentally weaken the idea of asymmetrical federalism since it is limited to the particular text of Article 370. That will, of course, be no consolation to those in J&K who believed that the Constitution of India allowed them certain unique protections.

The unilateral abrogation of Article 370 was an attack on some core features of the Constitution, namely federalism and democracy. One would have expected that a court which believes that these are basic features of the Constitution would have done something to stand up for these principles in its eventual verdict. As seems to have become the norm of late, the SC’s Article 370 judgment displays a vast gap between the rhetoric in the writing of the verdict and the actual decision in the case.

The writer is Co-Founder and Lead, Vidhi Karnataka
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