December 14, 2023
📰 FEATURE STORY
Is the Supreme Court’s judgement on Article 370 a blow to federalism?
Jammu & Kashmir has experienced a turbulent and uncertain time over the past few years. Ever since the government decided to scrap Article 370, there has been a political firestorm between the government and the Opposition parties over how the state is governed.
The matter inevitably found its way to the Supreme Court, which finally had its say. It backed the government and said that Jammu and Kashmir should be put on par with other states and called for state elections by September 30, 2024. The court contended that the state enjoyed special status despite not having “internal sovereignty”. Has the court’s decision set a bad precedent for federalism?
After Independence and the partition, Jammu & Kashmir (J&K) was one of the 562 states under the control of the British Crown. These states were left to decide their future. They regained full sovereignty and Independence. The choice they had was the people’s will and geographical location. Lord Mountbatten told the princes in 1947 that the Indian Independence Act relieves the States of their obligations, and they’re now technically and legally independent.
Soon after Independence, all the states agreed to a dominion per an arrangement, except Hyderabad, Kashmir, and Junagadh. Nehru objected to Junagadh’s accession to Pakistan, citing its population was 80% Hindu. There was a period of indecisiveness at this time amidst other events. There was communal trouble in Jammu after refugees came in from West Punjab.
When Gandhi visited the state in 1947, he said the will of the Kashmiris should decide the fate of Jammu & Kashmir. However, the circumstances of accession were less than ideal. The Hindu Maharaja of the Muslim-majority state initially wanted to stay independent and signed the Instrument of Accession. A schedule appended to the Instrument allowed the Indian Parliament to legislate for J&K on three matters – defence, external affairs, and communications.
A couple of years later, in 1949, Article 370 was included in the Constitution. During the Constituent Assembly proceedings, the former head of the princely state of J&K said the state wasn’t ready to be fully integrated and wanted some autonomy. Article 370 passed with only one dissenter – Maulana Hasrat Mohani, founder of the Communist Party of India. He wanted similar models for all other states in his pursuit of federalism.
In the subsequent years, Nehru repeatedly reiterated their commitment to Article 370. Critics have argued that Kashmir joined India in 1947 without any conditions, and Article 370 unnecessarily gave it special status. However, the Constitution was drafted in 1949, and Article 370 was included before the Constitution was adopted.
Kashmiri leader Shiekh Mohammad Abdullah, who played an important role in Kashmir’s accession, was concerned about the future of a Muslim-majority region in India. The 1952 agreement between Nehru and Abdullah was meant to ensure the identity and culture of the Kashmiri people would be protected by preventing outsiders from owning land. Much of this anxiety continued to play out in the decades since.
In 2019, the Centre decided to scrap Article 370 and divide the state into two separate union territories – Ladakh and J&K. The former wouldn’t have a legislature, and the latter an emasculated legislature. They would be under two Lieutenant Governors. This gave the Centre direct control over the state. The move was challenged on legal and constitutional grounds.
The Supreme Court has now sided with the government. Does this raise questions about federalism?
VIEW: The court is right
While critics argue about the merits of Article 370 and the concept of federalism, the special status was seen by many as a form of minority appeasement. The fundamental question asked by some at the time when Nehru was involved in this matter was simple – ‘if India’s constitution was good enough for the rest of India, why can’t it be acceptable to J&K?’ Many have argued that Article 370 led to the exodus of Kashmiri Hindus in 1990.
The court carefully observed that Article 370 was never meant to be a permanent solution. The court also held that the state of J&K didn’t retain any element of sovereignty when it joined the Union of India. The 1949 proclamation for the state reflected the complete surrender of sovereignty. The court also observed that in the past, the President of India had issued Constitution orders over forty times. So, the exercise of Presidential power here is valid. This indicated constitutional integration of the state with the Union.
Under the 356 Proclamation, the court held that action taken by the Union while it acts on behalf of the state legislature must be reasonable and necessary. Article 356 comes in when governance in a state can’t be done per the provisions of the Constitution. It’s then up to the government to restore the situation. After Article 370 was scrapped, 800 central laws became applicable in J&K, 205 erstwhile laws were abolished, and 130 were modified.
COUNTERVIEW: Sets a dangerous precedent
One of the fundamental arguments from the petitioners was that the powers under Article 356 should only be used to restore normalcy and not to make fundamental and permanent changes. Article 356 can be viewed as something to be invoked during a crisis or emergency. In the SR Bommai case, the court rightly imposed limitations on imposing the President’s Rule since it worried about unchecked powers. That precedent wasn’t applied here and now for J&K.
The court also refused to answer whether a Parliamentary law passed under Article 3 can convert a State into a Union Territory. It goes at the heart of the case, and the court’s silence can only be seen as an endorsement. This sets a bad precedent for any future government to do the same, especially when dealing with another state government by an opponent. The court basically endorsed that a portion of a state can be made into a Union Territory without consultation, even if it’s under the President’s Rule.
What about the people of the state? Shouldn’t they have a say in how they’re governed? The court seemed to think it was trivial to mandate any consultation with the state legislature under Article 3. This means the people have no say in statehood. The court has tied itself in knots and appeared contradictory. While it asserted that federalism is the Constitution’s basic feature, it still said the Union can take away statehood at will.
- As Supreme Court Rules on Article 370 in J&K, Here’s Why History, Legal Context Matters – The Wire
- Article 370: Going back 72 years in history – Hindustan Times
- Article 370 Is History – Supreme Court Backs Scrapping Of J&K Special Status – NDTV
- SC Verdict on Article 370 Is the First Big Blow To The Politics of Minority Appeasement – News18
- Why Gupkar Alliance’s brouhaha can’t undermine PM Modi’s aspirational, inclusive brand of politics in Kashmir – Firstpost
- In Article 370 Case, Supreme Court Set A Worrying Precedent For Federalism – Live Law
- With Article 370 verdict, SC has let down federalism – Indian Express
What is your opinion on this?
(Only subscribers can participate in polls)
a) The Supreme Court’s judgement on Article 370 isn’t a blow to federalism.
b) The Supreme Court’s judgement on Article 370 is a blow to federalism.
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