There is no timeline for the restoration of Jammu & Kashmir’s statehood. Even in Ladakh, there is a growing realisation that direct rule from Delhi is not a replacement for democratic local government
Alok Prasanna Kumar
Four years after Article 370 of the Constitution was repealed in a questionable manner, the action still raises a number of uncomfortable questions for Indian federalism. That federalism is a basic feature of India’s Constitution was finally recognised by the Supreme Court of India in S R Bommai v Union of India (1994) – a proposition that cannot be seriously disputed.
But what sort of federalism is it? India’s Constitution follows the model of “asymmetrical federalism” where different federal units (states) do not necessarily have the exact same relationship with the Union. This is partially by design and partially the outcome of historical developments. India’s model of asymmetric federalism has helped the nation stay united in the face of strong secessionist movements that have sprung up across the countries. The existence of Articles 371-A to 371-J stands testimony to the idea that a one-size-fits-all kind of federalism does not suit India and local accommodations will be needed to address local needs. However, the unilateral revocation throws all of that into question.
In this article, I propose to address the three unanswered but crucial questions raised by the repeal of Article 370 which go to the heart of what makes the Union of India a union.
The first, most existential question relates to what “statehood” within the Union of India even means anymore. It is true that states have come into existence or merged with others, but this is the first instance of a full state having been “downgraded” to a Union Territory subject only to direct central rule. In the initial years after the Constitution came into force, India was described as a “quasi-federal” polity for exactly this reason – that Article 3 of the Constitution of India permits the creation and dismantling of any state or even the modification of the boundaries of the state.
Even as states have been organised and reorganised on various bases over the years, the understanding of federalism has also evolved away from the simple binary of “federal” (like the United States) or “unitary” (like the United Kingdom). One could argue, reasonably, that the need for centralisation of powers in the first couple of decades of Independence has been replaced by the need to decentralise powers to make for a stronger Union. India is a more federal polity in 2023 than it was in 1950. However, one feels compelled to ask whether the revocation of Article 370 is a move to make India less federal overall.
The second question relates to whether the Union of India believes that the people of a state ought to have a say in how they are governed. While there is no constitutional requirement that the people of the state or their representatives have to necessarily approve any change to the status of a state, the requirement of a positive resolution in that state’s legislative assembly has been followed by convention. However, this convention was first ignored in the context of the creation of Telangana where the bifurcation of the state was carried out despite the then Andhra Pradesh Legislative Assembly voting against it. In the context of Jammu & Kashmir, there was no elected assembly at all to even pass a resolution in favour or against the revocation of Article 370. Even assuming that there was some popular demand in Ladakh for the bifurcation of the state, the question is why the popular demand in Ladakh for bifurcation required an extinction of Jammu & Kashmir’s statehood when no such demand was made in the former state itself.
The third question is: Will the “contorted exceptionalism” in the context of Jammu & Kashmir (as the authors of Hamin Ast? A biography of Article 370 put it) become the norm? One could argue that Article 370 was a unique exceptional provision in the Indian Constitution and it is impossible for any other state to be deprived of its statehood in the same manner. However, that ignores the underlying principle informing the form that Article 370 took.
Article 370 was the first example of the kind of asymmetrical federalism that has informed India’s federalism. Article 370 also provided a framework that was later modified and applied in the context of other states which wanted a different relationship with the Indian Union. Specifically, the political resolution of armed insurgencies in Nagaland, Assam, Manipur, and Mizoram required the amendment of the Constitution and the introduction of specific provisions that were tailored to the needs of each of the peoples of these states. Given the unilateral manner of the revocation of Article 370, one could legitimately ask whether the Union of India reserves to itself the right to unilaterally revoke any of the special provisions made for any of these states.
Four years after Jammu & Kashmir’s statehood was revoked, there is no timeline for the restoration of Jammu & Kashmir’s statehood. Even in Ladakh, there is a growing realisation that direct rule from Delhi is not a replacement for democratic local government.
While the Supreme Court is currently hearing the legal and constitutional dimensions of the revocation of Article 370, its verdict, either way, will not address the deeper political questions relating to federalism that the move has raised.
Alok Prasanna Kumar is Co-Founder and Lead, Vidhi Karnataka