the Supreme Court verdict upholding the Centre’s 2019 decision to revoke the special status for Jammu and Kashmir and reconfigure it into two Union Territories raises profound questions about the constitutional journey of this region.
The Supreme Court verdict affirming the abrogation of Jammu and Kashmir’s special status under Article 370 has sparked significant debates on the core tenets of India’s constitutional democracy and federalism. While a political victory for the BJP, the verdict’s potential ramifications on Centre-State relations, especially under diverse political dispensations, have emerged as a topic of concern. The Court’s assertion that Parliament, during the President’s Rule, holds the authority to enact irreversible legislation on behalf of the State legislature raises critical questions about constitutional fundamentals and poses a potential challenge to federal principles.
However, the Supreme Court has left open the question of whether Parliament, through the powers under Article 3, can eliminate statehood by converting a State into one or more Union Territories. This is a serious question. The Court emphasized that in an appropriate case, it should examine the scope of powers under Article 3 considering the impact on autonomy, historical context, federalism, and representative democracy. Is the court still waiting for an appropriate case? Is the question of J&K not worthy of consideration? The judgment, however, clarified that the views of the State Legislature under the first proviso to Article 3 are ‘recommendatory’ and not binding on Parliament.
Chief Justice of India D.Y. Chandrachud, who headed a five-member constitional bench, stated that not every decision by the Union government during Presidential rule can be challenged, as it could lead to the administration of the state coming to a standstill. Meanwhile, the reorganization of Ladakh as a Union Territory was upheld, with the court relying on the solicitor general’s promise of restoring statehood to J&K.
The court’s decision also raised questions about the potential erosion of statehood without a functioning state assembly, impacting India’s federal structure. The directive for the Election Commission of India to hold elections by September 30, 2024, is significant, allowing the postponement of polls beyond the general election in spring next year.
The judgment by Justice Chandrachud, Justice B R Gavai, and Justice Surya Kant affirmed that the concurrence of the State Government was not necessary for the President to exercise power under Article 370(1)(d) to apply all provisions of the Constitution to Jammu and Kashmir. The exercise of power by the President under Article 370(1)(d) to issue CO 272 is deemed not mala fide, and it is considered valid to the extent that it applies all provisions of the Constitution of India to the State of Jammu and Kashmir.
The court noted that the President had issued Constitution Orders over forty times, in the past, under Article 370(1)(d), applying various provisions of the Constitution with modifications, indicating a constitutional integration of the State with the Union over seventy years. The judgment analysed the provisions of the Constitution of India and Jammu and Kashmir, concluding that the latter is subordinate to the former. After the abrogation of Article 370, the Constitution of the State becomes inoperative. With the application of the entire Constitution of India to Jammu and Kashmir, the Constitution of the State loses its purpose and functionality.
The court pointed out that after the Instrument of Accession (IoA) and the Proclamation of 25 November 1949 adopting the Constitution of India, the State of Jammu and Kashmir lost any element of sovereignty. However, Article 370 reflected “asymmetric federalism,” not sovereignty.
The judges said that the petitioners did not challenge Proclamations under Section 92 of the Jammu and Kashmir Constitution and Article 356 of the Indian Constitution until the abrogation of Jammu and Kashmir’s special status. The challenge to Proclamations is not considered due to the principal challenge being post-abrogation actions. They unanimously, agreed that the President’s power under Article 370(1)(d) to issue CO 272 is not mala fide. The President can unilaterally issue a notification declaring the cessation of Article 370 without securing concurrence. Hence, the exercise of power by the President under Article 370(1)(d) applying the entire Constitution to Jammu and Kashmir through CO 272 is valid.
The President’s declaration under Article 370(3) through CO 273, signifying the culmination of the process of constitutional integration, is valid, according to the court. Following the application of the Constitution of India through CO 273, the Constitution of the State of Jammu and Kashmir is declared redundant, and the Constitution of India becomes supreme. Thus, Parliament’s exercise of power under the first proviso to Article 3, leading to the reorganization of Jammu and Kashmir into two Union Territories (Ladakh and Jammu and Kashmir), is declared valid and not mala fide.
The court noted that the Solicitor General assured the restoration of Jammu and Kashmir’s statehood (except for Ladakh). The Election Commission is directed by the court to conduct elections to the Legislative Assembly by 30 September 2024, and statehood restoration is urged at the earliest.
There are criticisms from various quarters, including from J&K leaders that the apex Court’s decision to abstain from ruling on the constitutionality of reorganizing J&K into two Union Territories is a glaring example of judicial side-stepping. It raises questions as the Court opted not to address a fundamental question arising from the application of Article 3, marking the first instance of downgrading a State.
It may be recalled that Justice Sanjay Kishan Kaul in his epilogue of the judgement said that the Valley of Kashmir has a historical and social context, marked by conflict and victims of the invasion since 1947. The entry of the Army during troubled times impacted the region’s social fabric, and healing is crucial. Restoring coexistence, tolerance, and mutual respect is essential for the region’s future.
The judgment by Kaul emphasized the need for a collective understanding of human rights violations, both by State and non-state actors. A commonly accepted narrative or ‘truth’ is crucial for acknowledging the suffering and facilitating reconciliation. The recommendation is to set up an impartial truth and reconciliation commission to investigate and report on human rights violations in Jammu and Kashmir since the 1980s and recommend measures for reconciliation. He said that the Commission should be set up expediently and be time-bound. It aims to address the distrust among the youth and should be based on dialogue, allowing different viewpoints. While the Government should devise the setup, caution is advised to ensure it doesn’t become a criminal court but follows a humanized and personalized process. Justice Sanjay Kishan Kaul is learned to have drawn inspiration from South Africa’s Truth and Reconciliation Commission as a model for addressing human rights violations and fostering reconciliation.
Interestingly, the court asserted in one of its paragraphs that democracy and federalism are integral features of the Constitution. It emphasized the essential role of States in the constitutional project of democracy and federalism, recognizing India’s constitutional structure as quasi-federal, encompassing both unitary and federal elements. The court acknowledged the significance of States in maintaining a constitutional balance of power between the Union and State Governments. However, despite these affirmations in the judgment, the final verdict appears to contradict the very essence of federalism it purportedly champions.
