Article 370 order flags several federal concerns

Dec 16, 2023 10:00 PM IST

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Is this a potential Pandora’s Box the Court has opened?

Let me start by repeating what I’ve written before. The best way of understanding a complex outcome is to formulate questions that raise issues requiring clarity. It’s like shining a light in a dark tunnel. Let me thus approach the Supreme Court (SC)’s Kashmir judgments.

The five-judge bench held by unanimity that the constitutional order by which Article 370 was altered by amending Article 367 was ultra vires to the extent it used an interpretation clause for amending Article 370. (ANI)

I’ll start with the Court’s decision to uphold what’s popularly called the abrogation of Article 370. On the one hand, the majority judgment says a critical part of Constitutional Order 272, reading down Article 370, is ultra vires because it wrongly uses Article 367 to interpret constituent assembly as legislative assembly. Since that’s the process the government used to abrogate Article 370, the Court should have struck it down. But it didn’t. Instead, it argued Article 370 could also be read down by use of Clause 3 and, therefore, upheld what the government did. This means the Court ruled that what the government did was wrongly done, but if it had done it differently it would be right and, therefore, upheld what the government did.

To me, that sounds like putting arguments in the government’s mouth. But they’re not the government’s own arguments. Kapil Sibal tweeted this when he said: “The Court’s verdict had little to do with the government’s own understanding of Article 370!” Was this a proper course of action for the SC?

Even the argument that Article 370 can be legitimately read down by use of Clause 3 hinges on the claim that the dissolution of the Kashmir constituent assembly only means the power of the assembly to recommend ceased to exist. It doesn’t affect the power of the President of India to act, whether he has such a recommendation or not. Is that claim acceptable or disputable?

Let’s now come to the SC’s refusal to determine whether the reorganisation of the state was permissible under Article 3, i.e. whether the government has the power to demote Jammu and Kashmir to a Union Territory (UT)? The Court has relied on two arguments. First: “We do not believe that the Court ought to sit in appeal over every decision taken by the President during the imposition of Article 356… (because) if every action taken by the President and Parliament on behalf of the state was open to challenge this would effectively bring to the court every person who disagreed with an action taken during President’s Rule.” Is that a legitimate reason for not determining whether the reorganisation was constitutional?

The second reason is that under Article 3, the recommendation of the state legislature is not binding. No doubt. But it’s still a procedure required by the Constitution. Can it be circumvented just because it’s not binding?

Now, one consequence of the SC’s refusal to determine whether the reorganisation is constitutional is this manner of reorganising a state can be used again. The government can declare President’s Rule in Bengal, Kerala and Tamil Nadu, transfer the assembly’s powers to Parliament and, thereafter, Parliament can decide to abolish the state or demote it to a UT. That precedent has been established.

The second consequence is, arguably, more important. Alok Prasanna Kumar points out that federalism is part of the basic structure of the Constitution. That means it cannot be amended by Parliament. But the power to reorganise a state has been interpreted by the SC as a parliamentary power. Do we now have a clash between the power of parliament and the sanctity of the basic structure?

The Hindu makes a wider point. It says the SC’s judgment suggests, “(The) unconscionable conclusion that Parliament, while a state is under President’s Rule, can do any act, legislative or otherwise, even with irreversible consequences, on behalf of the state legislature”. Arghya Sengupta adds, “this is a constitutional question all the way down with significant ramifications for the future of Indian federalism.” Is this a potential Pandora’s Box the Court has opened?

It’s when I have answers to these questions I’ll know what to think of the Kashmir judgments. But who’ll provide them?

Karan Thapar is the author of Devil’s Advocate: The Untold Story. The views expressed are personal