In 1947, when India gained independence, the erstwhile country of British India was partitioned into two nation states, largely on communal lines. States, which had a majority of Muslim population essentially went to Pakistan, (primarily in the North and the East), and the States which had a majority of Hindu population came to India. Some princely States which still had sovereignty were asked to choose.
At that time, Kashmir, which had a largely Muslim population but had a ruling sovereign, was still undecided, and ultimately, when Pakistani troops entered the Kashmir, the ruler of J&K decided to accede to India, but with conditions which gave the State far more autonomy than other States were to get under the Constitution. The subjects of only Defence, External Affairs and Communications were to come within the domain of the Union while the rest of the subjects, both in legislative and executive functions, would remain with the State.
This autonomy enshrined in the Instrument of Accession which was signed by India and the ruler of J&K was also engrafted in the Indian Constitution, by means of Article 370, which essentially provided that notwithstanding other provisions of the Constitution, the Union Government would have powers only in matters specified in the Instrument of Accession i.e. Defence, External Affairs and Communication, while the rest of the subjects would remain with the State Government.
However, Article 370 itself provided for ways and means by which the subject that went to the Union list could be expanded (by a Presidential order with the consent of the State Govt). It also provided for circumstances under which 370 could be abolished (by a Presidential order with the Consent of the Constituent Assembly for the State). The Constituent assembly of the State was Constituted in 1951 and was wound up in 1957 after it had drafted a Constitution of the State of J&K. Between 1957 and 2009, several other subjects were added to the Union List by Presidential orders with the Concurrence of the State.
In 2019, soon after winning the Lok Sabha elections, the BJP-government at the Centre took a series of steps which were designed to not only take away the autonomy of the State of J&K, but also to convert the State into two Union Territories. President’s Rule was already imposed on J&K in June 2018. While it was under President’s rule and did not have a functional State Legislature or a democratically elected State Government, and ruled entirely by the Union, the Union government issued two Constitutional Orders, which had the effect of applying the entire Constitution of India to the State of J&K, abrogating Article 370, and inserting all the subjects under the Union List by exercising power under 370(1)(d).
All of these were challenged by various people and parties from Jammu and Kashmir in the Supreme Court on the ground of unconstitutionality. These cases languished for several years in the Supreme Court until they were finally heard by a Constitution Bench comprising five senior most judges.
There were broadly two major constitutional issues that the court was supposed to decide. First, Whether Article 370 could have been abrogated. If yes, whether the procedure adopted to do so, i.e. abrogating Article 370 when the State was under President’s rule and without taking the prior approval of the State Legislature, was constitutional. Second, whether the downgrading of the State, which at the time was under President’s rule, into two different Union Territories was constitutionally valid.
While ruling on the first issue, the Constitution bench has held that Article 370 was a temporary and transitory provision. It has further held that after the Constituent Assembly of Jammu and Kashmir was dissolved, the proviso to Article 370(3), which mandated prior permission of the Constituent Assembly before abrogation, became otiose. In such circumstances, the President was well within his powers to issue a notification unilaterally abrogating Article 370 and applying the entire Constitution of India to Jammu and Kashmir in one go.
On the second issue of downgrading of statehood, the court did not pass a ruling at all. While relying on a statement made by the Solicitor General that the statehood of Jammu and Kashmir will be restored (except for the carving out of the Union Territory of Ladakh), the bench said that it did not find it necessary to determine whether the reorganisation of the State of Jammu and Kashmir into two Union Territories of Ladakh and Jammu and Kashmir is permissible under Article 3. However, it simultaneously upheld the validity of the decision to carve out the Union Territory of Ladakh in view of Article 3(a) read with Explanation I which permits forming a Union Territory by separation of a territory from any State. The bench held that the views of the Legislature of the State under the first proviso to Article 3 are only recommendatory and therefore the Proclamation was valid and not mala fide.
In my view, however, the judgment of the court is wrong, incorrect and unfair to the people of Jammu and Kashmir on the following counts.
Firstly, the Court’s conclusion that 370 could be abolished by the government unilaterally without consulting the Constituent Assembly or even the State Legislature and the State Government, completely betrays the solemn promise made by the Union of India while signing the Instrument of Accession and the conditions in which J&K acceded to the Indian Union. The mere fact that the title of Article 370 says “temporary” cannot mean that 370 was meant to go immediately after the Constituent Assembly of J&K had finished framing the J&K Constitution. Therefore, for the court to say that as soon as the Constituent Assembly was dissolved, 370 itself became otiose and could be unilaterally removed by the Union Government through a Presidential Order, is to my mind a totally incorrect interpretation of Article 370 itself and in derogation of the object for which Article 370 was brought into the Constitution (essentially to give effect to the Instrument of Accession).
The Court also erred in holding that all this could be done while President’s rule was in force and when the State government was not functioning. Such a proposition would have dangerous consequences for Federalism in our country, since far reaching and irreversible changes in the States could be made, which normally require the consent of the State government or consent of the Assembly, could be done by the Union government merely by imposing President’s rule and making all those changes.
Finally, on the issue of Abolition of Statehood of Jammu and Kashmir, its conversion into two separate Union Territories, the court has essentially skirted the issue by saying that this need not be decided in this case because Central Government has decided to restore statehood to Jammu and Kashmir (minus Ladakh, which will remain a Union Territory). Though this vague promise made by the Solicitor General, may or may not be fulfilled by this or its successor government, the court has used it as an excuse to skirt a serious legal issue as to whether a State could be abolished and converted entirely into Union Territories without even consultation with the State Assembly as provided in Article 3 of the Constitution.
Further, the carving out of Ladakh as a separate Union Territory has been upheld by the court even without a mandatory consultation of the State Assembly by saying that the mandatory consultation is only consultation and thus does not require consent of the State Assembly. Even if it does not require consent, this is a manifestly incorrect interpretation of the law as mandatory consultation could not have been dispensed with, as has been held earlier in several judgements by the top court.
While writing for the Indian Express, Pratap Bhanu Mehta has criticised this aspect of the ruling in the following words, “A case could be made for upholding the abrogation of Article 370. But for the Court to completely duck the most significant and novel degradation of Indian federalism that the Jammu and Kashmir Reorganisation Act, 2019, represents, will do no favours to its authority. Per formatively, the Court ended up saying: “The whole of the Constitution of India applies to Jammu and Kashmir. But not yet.” A curious performance indeed.” The Hindu Editorial published on the very next day of the judgment has succinctly criticised the judgment in the following words, “The Supreme Court verdict upholding the abrogation of Jammu and Kashmir’s special status under Article 370 of the Constitution represents not merely judicial deference, but a retreat from the Court’s known positions on federalism, democratic norms and the sanctity of legal processes…However, it is also a verdict that legitimises the subversion of federal principles, fails to appreciate historical context and undermines constitutional procedure.”
All in all, the Supreme Court in this case seems to have completely capitulated to the Central Government by first deciding that the conclusions it wanted to reach was to endorse the Governments actions. It then invented some arguments to justify those conclusions.
This judgment comes after several judgments/orders where the court has endorsed what in my view were unconstitutional and questionable acts of the ruling party, (especially where the government has a serious political interest). These include, the Ayodhya case, where the court gave the entire land to the very people who had illegally demolished the Babri Masjid. It also includes the Rafale case where the court refused an independent investigation into the scam, by accepting some false claims made by the government in a note handed over in a sealed cover which was not even shown to the petitioners. Also, the Gyanvapi Mosque order where the court has allowed the excavation of the Mosque to determine what lies underneath it, despite the fact that the Places of Worship Act bars change in status quo which prevailed in 1947. Therefore, the court has allowed a political mischief to take place despite it being legally barred.
The recent judgements of the Court are causing serious alarm among judicial and political observers who are watching with dismay the collapse of the independence of the Apex Court, especially at a time when the Government is eroding fundamental rights, the foundations of independent institutions and indeed Democracy itself.
Unrest in Pakistan-Administered Kashmir: Tensions, Quest for Justice
Will the Palestinian Groups Create a New Palestinian Political Project?
How Mehbooba’s entry in the electoral fray is striking a chord with women in Pir Panjal
The Supreme Court’s Betrayal Of The Promise Made To Kashmir
Prashant Bhushan*
In 1947, when India gained independence, the erstwhile country of British India was partitioned into two nation states, largely on communal lines. States, which had a majority of Muslim population essentially went to Pakistan, (primarily in the North and the East), and the States which had a majority of Hindu population came to India. Some princely States which still had sovereignty were asked to choose.
At that time, Kashmir, which had a largely Muslim population but had a ruling sovereign, was still undecided, and ultimately, when Pakistani troops entered the Kashmir, the ruler of J&K decided to accede to India, but with conditions which gave the State far more autonomy than other States were to get under the Constitution. The subjects of only Defence, External Affairs and Communications were to come within the domain of the Union while the rest of the subjects, both in legislative and executive functions, would remain with the State.
This autonomy enshrined in the Instrument of Accession which was signed by India and the ruler of J&K was also engrafted in the Indian Constitution, by means of Article 370, which essentially provided that notwithstanding other provisions of the Constitution, the Union Government would have powers only in matters specified in the Instrument of Accession i.e. Defence, External Affairs and Communication, while the rest of the subjects would remain with the State Government.
However, Article 370 itself provided for ways and means by which the subject that went to the Union list could be expanded (by a Presidential order with the consent of the State Govt). It also provided for circumstances under which 370 could be abolished (by a Presidential order with the Consent of the Constituent Assembly for the State). The Constituent assembly of the State was Constituted in 1951 and was wound up in 1957 after it had drafted a Constitution of the State of J&K. Between 1957 and 2009, several other subjects were added to the Union List by Presidential orders with the Concurrence of the State.
In 2019, soon after winning the Lok Sabha elections, the BJP-government at the Centre took a series of steps which were designed to not only take away the autonomy of the State of J&K, but also to convert the State into two Union Territories. President’s Rule was already imposed on J&K in June 2018. While it was under President’s rule and did not have a functional State Legislature or a democratically elected State Government, and ruled entirely by the Union, the Union government issued two Constitutional Orders, which had the effect of applying the entire Constitution of India to the State of J&K, abrogating Article 370, and inserting all the subjects under the Union List by exercising power under 370(1)(d).
All of these were challenged by various people and parties from Jammu and Kashmir in the Supreme Court on the ground of unconstitutionality. These cases languished for several years in the Supreme Court until they were finally heard by a Constitution Bench comprising five senior most judges.
There were broadly two major constitutional issues that the court was supposed to decide. First, Whether Article 370 could have been abrogated. If yes, whether the procedure adopted to do so, i.e. abrogating Article 370 when the State was under President’s rule and without taking the prior approval of the State Legislature, was constitutional. Second, whether the downgrading of the State, which at the time was under President’s rule, into two different Union Territories was constitutionally valid.
While ruling on the first issue, the Constitution bench has held that Article 370 was a temporary and transitory provision. It has further held that after the Constituent Assembly of Jammu and Kashmir was dissolved, the proviso to Article 370(3), which mandated prior permission of the Constituent Assembly before abrogation, became otiose. In such circumstances, the President was well within his powers to issue a notification unilaterally abrogating Article 370 and applying the entire Constitution of India to Jammu and Kashmir in one go.
On the second issue of downgrading of statehood, the court did not pass a ruling at all. While relying on a statement made by the Solicitor General that the statehood of Jammu and Kashmir will be restored (except for the carving out of the Union Territory of Ladakh), the bench said that it did not find it necessary to determine whether the reorganisation of the State of Jammu and Kashmir into two Union Territories of Ladakh and Jammu and Kashmir is permissible under Article 3. However, it simultaneously upheld the validity of the decision to carve out the Union Territory of Ladakh in view of Article 3(a) read with Explanation I which permits forming a Union Territory by separation of a territory from any State. The bench held that the views of the Legislature of the State under the first proviso to Article 3 are only recommendatory and therefore the Proclamation was valid and not mala fide.
In my view, however, the judgment of the court is wrong, incorrect and unfair to the people of Jammu and Kashmir on the following counts.
Firstly, the Court’s conclusion that 370 could be abolished by the government unilaterally without consulting the Constituent Assembly or even the State Legislature and the State Government, completely betrays the solemn promise made by the Union of India while signing the Instrument of Accession and the conditions in which J&K acceded to the Indian Union. The mere fact that the title of Article 370 says “temporary” cannot mean that 370 was meant to go immediately after the Constituent Assembly of J&K had finished framing the J&K Constitution. Therefore, for the court to say that as soon as the Constituent Assembly was dissolved, 370 itself became otiose and could be unilaterally removed by the Union Government through a Presidential Order, is to my mind a totally incorrect interpretation of Article 370 itself and in derogation of the object for which Article 370 was brought into the Constitution (essentially to give effect to the Instrument of Accession).
The Court also erred in holding that all this could be done while President’s rule was in force and when the State government was not functioning. Such a proposition would have dangerous consequences for Federalism in our country, since far reaching and irreversible changes in the States could be made, which normally require the consent of the State government or consent of the Assembly, could be done by the Union government merely by imposing President’s rule and making all those changes.
Finally, on the issue of Abolition of Statehood of Jammu and Kashmir, its conversion into two separate Union Territories, the court has essentially skirted the issue by saying that this need not be decided in this case because Central Government has decided to restore statehood to Jammu and Kashmir (minus Ladakh, which will remain a Union Territory). Though this vague promise made by the Solicitor General, may or may not be fulfilled by this or its successor government, the court has used it as an excuse to skirt a serious legal issue as to whether a State could be abolished and converted entirely into Union Territories without even consultation with the State Assembly as provided in Article 3 of the Constitution.
Further, the carving out of Ladakh as a separate Union Territory has been upheld by the court even without a mandatory consultation of the State Assembly by saying that the mandatory consultation is only consultation and thus does not require consent of the State Assembly. Even if it does not require consent, this is a manifestly incorrect interpretation of the law as mandatory consultation could not have been dispensed with, as has been held earlier in several judgements by the top court.
While writing for the Indian Express, Pratap Bhanu Mehta has criticised this aspect of the ruling in the following words, “A case could be made for upholding the abrogation of Article 370. But for the Court to completely duck the most significant and novel degradation of Indian federalism that the Jammu and Kashmir Reorganisation Act, 2019, represents, will do no favours to its authority. Per formatively, the Court ended up saying: “The whole of the Constitution of India applies to Jammu and Kashmir. But not yet.” A curious performance indeed.” The Hindu Editorial published on the very next day of the judgment has succinctly criticised the judgment in the following words, “The Supreme Court verdict upholding the abrogation of Jammu and Kashmir’s special status under Article 370 of the Constitution represents not merely judicial deference, but a retreat from the Court’s known positions on federalism, democratic norms and the sanctity of legal processes…However, it is also a verdict that legitimises the subversion of federal principles, fails to appreciate historical context and undermines constitutional procedure.”
All in all, the Supreme Court in this case seems to have completely capitulated to the Central Government by first deciding that the conclusions it wanted to reach was to endorse the Governments actions. It then invented some arguments to justify those conclusions.
This judgment comes after several judgments/orders where the court has endorsed what in my view were unconstitutional and questionable acts of the ruling party, (especially where the government has a serious political interest). These include, the Ayodhya case, where the court gave the entire land to the very people who had illegally demolished the Babri Masjid. It also includes the Rafale case where the court refused an independent investigation into the scam, by accepting some false claims made by the government in a note handed over in a sealed cover which was not even shown to the petitioners. Also, the Gyanvapi Mosque order where the court has allowed the excavation of the Mosque to determine what lies underneath it, despite the fact that the Places of Worship Act bars change in status quo which prevailed in 1947. Therefore, the court has allowed a political mischief to take place despite it being legally barred.
The recent judgements of the Court are causing serious alarm among judicial and political observers who are watching with dismay the collapse of the independence of the Apex Court, especially at a time when the Government is eroding fundamental rights, the foundations of independent institutions and indeed Democracy itself.
*The author is a senior lawyer of Supreme Court.
—–
Share this:
Unrest in Pakistan-Administered Kashmir: Tensions, Quest for Justice
Will the Palestinian Groups Create a New Palestinian Political Project?
How Mehbooba’s entry in the electoral fray is striking a chord with women in Pir Panjal
Campus Protests In USs And Europe Are Welcome Signs Of Sensitizing Education