After 370

SC backs Union govt's procedures on J&K

Four years after the Union government abrogated the special constitutional status provided to what was the state of Jammu and Kashmir (J&K), the Supreme Court has finally pronounced on the constitutionality of the move. A Constitution Bench consisting of five judges and led by Chief Justice of India D Y Chandrachud answered all the open questions raised by multiple petitioners essentially in favour of the Union government. Even on the specific points raised, the government will be pleased with the court’s judgment. The judges held that, first, J&K’s possession of a separate constitution did not contribute to the state having “special status” within India; second, that Article 370 was always meant to be a temporary and transitional provision, even though it was written into the Constitution; and, finally, that the presidential proclamations of August 2019 were correct in law and procedure. The court’s suggestion, in a separate but concurring judgment by Justice Sanjay Kishan Kaul, that there should be a Truth and Reconciliation Commission in J&K shows the judiciary’s sensitivity to political realities and human rights concerns.

The question of Kashmir will remain, as it always has been, a deeply contested political question to which there is a political and not a procedural answer. It is the third point, and related questions arising from the presidential proclamations, that will cause disquiet in many other states of the Union. In essence, the Government of India had first imposed President’s Rule in J&K; then indicated that the governor of a state or the President of India could assume all the responsibilities associated with the Legislative Assembly of the state; and used that to indicate that the concurrence of the “Constituent Assembly” of J&K had been obtained as a consequence of the President’s assent. This was, the court concluded, an “extraneous exercise of power”. It is to be noted that the presidential proclamations went on to then bifurcate the state into two Union Territories, an act that the court also upheld. The only point that the court held back on was whether the Indian Parliament had the powers to unilaterally turn a state into a Union Territory; the solicitor general had indicated during arguments that statehood would be restored, though no timeline is forthcoming. The court, however, did direct a timeline for elections to the J&K Assembly.

The powers of the Union government vis-à-vis the states seem to have been enhanced by this decision, which could be politically destabilising when states from Tamil Nadu to West Bengal see constant disputes between the elected executive and the appointed governor. The notion that the Union can first impose President’s Rule and then substitute parliamentary approval for that of the Assembly even for deeply conflicted issues such as bifurcation of a state will not be greeted by celebration in those parts of India already concerned about Union-state relations. The failure to rule on the unilateral removal of statehood could also cause disquiet in many state capitals. New Delhi has won a signal victory in what has been a relatively painless implementation of a crucial prong of the ruling party’s historic agenda. But the questions raised by the manner of its implementation are unlikely to go away, and will require a more inclusive and cautious politics from the Union if they are to be solved.