Triumph of the Union

WHEN THE SUPREME COURT DECIDED A CLUTCH OF petitions on December 11 it not only put an end to decades of bickering about the status of Jammu and Kashmir (J&K) in the Indian Union but the court also gave its stamp of approval to the latest act of national integration, one that was required to solve a problem that had been pending since Independence. The court’s judgment was elaborately crafted even if it was simplicity itself: Jammu and Kashmir had no sovereignty after 1949. The question of giving it a ‘special status’ or its standing apart from other states of the country simply did not arise.

The story of the undoing of Article 370 of the Constitution— the article that gave a ‘special status’ to J&K—can be told in four acts of a play performed over 74 years. First came the article itself that was placed in the Constitution in late-1949. It was an extraordinary measure necessitated by a very difficult situation in J&K. Then over the next seven decades, in a politically permissive environment in India, the article was used to fuel separatism in the name of ‘endearing’ the people of J&K to India. The next two acts were one of denouement: on August 5, 2019 the bluff of ‘endearment with separatism’ was called; and, finally, four years later, the Supreme Court peeled off one layer after another of the charade.

After Article 370 became part of the Constitution, commentators and scholars argued it had become a permanent feature of the Constitution. This claim was made on the basis of a peculiarly worded feature of the article. Unlike other articles of the Constitution that have to be amended or repealed using Article 368 which provides the machinery for such changes, Article 370 provided its own mechanism for repeal. The president of India could issue a notification repealing or modifying the article. This was worded in Clause 3 of Article 370. The peculiar part of this clause was its proviso that said the recommendation of the Constituent Assembly of J&K was necessary be­fore the president could issue such a notification. Since that body ceased to exist in 1957, it was held that Article 370 had become a permanent feature of the Constitution.

It is worth noting that Article 370 was placed in Part XXI of the Consti­tution that dealt with “temporary, transitional and special provisions”. This did not prevent the creation and sustenance of the myth that the article was a permanent feature of the Constitution. It is interesting to note the political character of all commentators and scholars who propagated this myth: all, without exception, believe in ‘federalism’, are opposed to robust nationalism, make a case for India as a ‘loose fed­eration’ and lie on the leftist end of the political spectrum.

Such was the force of the myth that the Bharatiya Janata Party (BJP)-led government and its law officers undertook an elaborate exercise to overcome the alleged bar imposed by the proviso on Article 370(3). This was done in two steps. First, the Centre issued a Constitution (Application to Jammu and Kashmir) Order, 2019 on August 5, 2019. This order (CO 272) used Article 367—an ob­scure provision of the Constitution that is just an interpretative aid—to change the expression “constituent assembly of the state” mentioned in Article 370(3) to “legislative assembly of the state”. It also made other changes, including redefining the meaning of the expression “government of the state” to mean governor of the state acting on the advice of his council of ministers. This was ne­cessitated because the state government led by Mehbooba Mufti had been dismissed. Earlier, the president had issued another proclamation and had taken over the government of the state.

With this elaborate preparation, the Centre could undertake the momentous changes it did on August 5, 2019. The next day, on August 6, the president issued a proclamation under Article 370(3), abrogating the article. This was the Constitutional Order (CO) 273.

Was there a hitch in all this? Just one: the Supreme Court said none of this was necessary. All the president had to do was issue the notification and there was no bar against this simple act.

The apex court’s argument that the recommendation of the J&K Constituent Assembly was not binding on the president of India needs to be understood from the historical context of the adoption of the Constitution by Indian states soon after Independence.

The court noted that the Constitution did not provide for its ratification by the Indian states; the Ministry of States—the forerunner of the Ministry of Home Affairs—provided for rulers of the states to issue a proclamation ratifying the Constitution. In case the state in question had a Constituent Assembly, that Assembly could issue such a proclamation. In case the state did not have such a body, its ruler could issue such a proclamation. J&K did not have such a body when the Constitution of India was adopted. The court noted the proclamation issued on November 25, 1949 by Karan Singh, the then prince regent of J&K, which stated: “That the provisions of the said Constitution shall, as from the date of its commencement, supersede and abrogate all other constitutional provisions inconsistent therewith which are at present in force in this State.”

The court said, “The Proclamation reflects the full and final surrender of sovereignty by Jammu and Kashmir, through its sovereign ruler, to India—to her people who are sovereign.” This renders the question of the non-recommendation of J&K’s Con­stituent Assembly merely academic. In reality, this pernicious claim kept the flame of separatism and insurgency alive in the state, costing many thousands of lives among innocent people and security forces alike.

The court buttressed this historical argument with other interpretations as well.

It also rejected the ‘permanent feature’ on the ground that if it were true then Article 370(3) would become redundant and the provision would lose its temporary character. This would be contrary to holding that Article 370 is a temporary provision.

Most importantly, the court held that the recommendation of the Constituent Assembly of J&K to abrogate Article 370 was necessary only during the life of that Assembly. Since that body had a specific remit and the body was not permanent, the “dis­solution of the Constituent Assembly of the State would not impact the substantive power vesting in the President under Clause 3 [of Article 370].”

The court also dismissed the challenge to CO 273—the actual act of abrogation of Article 370—in equally simple terms. It said that the president, while deciding if the power under Article 370(3) must be exercised, determines if the special circumstances which required Article 370 have ceased to exist: “This is a policy decision which completely falls within the realm of the execu­tive. The Court cannot sit in review of the decision of the President on whether the special circumstances which led to the arrange­ment under article 370 have ceased to exist.”

While not ruling out a judicial review of the decision, the court went on to say that petitioners challenging this order had to show that the president’s exercise of his power was mala fide. They could not show that. And with that the saga of Article 370 came to an end.

THE COURT’S JUDGMENT was not without its twists and turns. For example, while the court upheld the abrogation of Article 370, it ruled that the use of Article 367 by the Centre to interpret its way out of “difficulties” was uncon­stitutional. It went on to say, “The consequence of permitting amendments through the circuitous manner would be disas­trous. Many provisions of the Constitution would be susceptible to amendments which evade the procedure stipulated by Article 368 or other provisions.” It gave examples of how this could lead to dangerous situations.

Unlike the carping about the court being a ‘rubber stamp’, the court decried the use of CO 272 to modify Article 367 and declared it unconstitutional.

Similarly, the court expressed discomfort about questions centred on the use of Article 3 of the Constitution that allows boundaries of states to be changed as well as creation of new states. At multiple points in its judgment, the court emphasised that states under the Constitution have their own independent constitutional existence. It did not go into the legality of the reorganisation of J&K into two Union territories as the Centre has said the statehood of J&K will be restored at an ap­propriate time. The court’s order to the Election Commission of India (EC) to conduct elections by September 30, 2024 showed that it was alive to the issues of democra­cy and democratic representation in the country. This is contrary to dubious claims of the court being “more executive-minded than the executive” as some commenta­tors have salaciously alleged it to be.

The reality is that the court had a difficult balancing act to perform. On the one hand, the court is alive to challenges to the security and sovereignty of the country. Historically, it has never compromised with India’s national interests. On the other hand, over time, India’s legal culture has acquired a remarkably liberal character that downplays these very challenges to the existence of India as a nation-state. Liberal legalism is based on ideas like an elaborate right to privacy, an over-the-top definition of federalism almost to the point of sub-nationalist separatism. The original meaning of an idea like federalism as a mere arrangement to pro­vide different public goods at different levels has been forgotten. Instead, it has acquired a malevolent interpretation.

While the court fixes longstanding problems like the one posed by Article 370, more such problems emerge on the ground. These are propelled in no small measure by a lax legal culture that encourages such questions being brought before courts. These issues require political handling instead of a ju­dicial solution. But that is exactly what liberal legalism wants: force the court to step in, bypassing the political executive. It won’t be surprising if at some point a constitutional challenge is mounted to delimit the contours of Article 3. The court did not entertain that question but left it open for a future case to determine that. For now, however, the court by its judgment on the Article 370 petitions has affirmed that India is an indestruc­tible union of destructible states. The court’s assertion is worth quoting: “The indestructible nature of the Union of India is un­derscored by its application to the State of Jammu and Kashmir, which was otherwise subject to a special federal arrangement by virtue of Article 370. The State of Jammu and Kashmir is an integral part of the Union of India.”

2023 In ReviewAmit ShahArticle 370Constituent AssemblyJammu and KashmirNarendra ModinationpoliticsSupreme Court of India