With its Article 370 judgment, Supreme Court has driven a nail through federalism

A five-judge bench of the Supreme Court Monday upheld the nullification of Article 370 | Photo: PTI

The Supreme Court’s judgment on the Narendra Modi government’s 2019 decision to abrogate Article 370 of the Constitution was keenly awaited, not only for its implications but also to determine if the long tide of pro-government decisions would start to ebb.

The judgment upholding the abrogation came after four years, or five if we include the imposition of President’s Rule in Jammu and Kashmir in December 2018. The erstwhile state was divided into two Union territories—J&K and Ladakh—within a year, resulting in several cases in the Supreme Court.

It doesn’t take long for hearings to begin in a constitutional case since there are few disputed facts. But Article 370’s abrogation languished through the CJIships of Ranjan Gogoi, SA Bobde, NV Ramana, and UU Lalit, virtually defeating the petitioners by default, before finally being heard by a five-judge bench led by current CJI DY Chandrachud. It wasn’t as though the Supreme Court was busy hearing other constitutional matters of import: the validity of electoral bonds, the Citizenship (Amendment) Act issue, and the amendment extending reservation of seats for Scheduled Castes and Scheduled Tribes in the Lok Sabha and legislative assemblies are just a few of the many crucial cases that continue to languish in cold storage.

Instead, India’s 30-odd top judges spend quality time hearing bail matters, special leave petitions against every conceivable order passed in ordinary civil and criminal matters, and transfer petitions. For a de facto abdication of duty by a constitutional court, this record bears few parallels. This is the first failure on the court’s part. The second is that we haven’t had a word of explanation, let alone an apology, from former CJIs or the current court, for the delay. Perhaps the old maxim “Be you ever so high, the law is above you” needs an addition: “and you are not free from accountability”.

Getting to brass tacks

The accession of J&K was a troubled matter, given the Partition norm of Muslims majority areas going to Pakistan and Hindu ones remaining in India. Indeed, Sardar Vallabhbhai Patel, who brilliantly managed the accession of 562 princely states into the Union, said that he was fine with Kashmir going to Pakistan if it meant that Hyderabad would join India. Jawaharlal Nehru’s yearning for his Valley, however, carried the day.

Thereon, Kashmir was given special security and status in the form of its own Constitution and Article 370, which gave the state a great deal of internal sovereignty. This could not be withdrawn unless the state, through its constituent assembly, agreed to it. This was substituted by the” State Assembly” by the Union government on 5 August 2019, one day before the Union abrogated Article 370. Clearly, this was to get over the difficulty of the state constituent assembly having been dissolved much earlier without recommending abrogation.

What the Supreme Court has done is to refrain from giving its nod of disapproval to the brutal dismembering of this solemn constitutional guarantee, which can be termed a  masterstroke only when you condone the crudity of the political act. Watch the flow. State assembly is put in place of the Constituent Assembly to accord approval to abrogate Article 370. President’s Rule is imposed on 19 December 2018, so there is no state assembly to give consent. Constitutionally, both the Centre and the state, through their legislative organs, must participate in the abrogation of Article 370. Since the latter, which doesn’t want to join in the clap, has its hand tied behind its back, the former decides that its waving back and forth and waxing loud constitutes the clap, and Article 370 goes. And the Supreme Court does not call out this fraud. It merely records the assurance of the Solicitor General that statehood will be restored soon. Now, the Solicitor General is no doubt the law officer calling the shots, but when did he transition from being the government’s, the executive’s lawyer to becoming the counsel for Parliament? And by definition no assurance can be given on behalf of a legislature; it decides when it meets. Perhaps this is an unconscious recognition of -day realpolitik, that Parliament does what the executive wills.

Another constitutional fraud

One more constitutional fraud has taken place, this far bigger in impact because it concerns every state. Article 356 is hedged by an important restriction in sub-clause 5, which says that President’s Rule may not be extended beyond a year unless Emergency has been proclaimed or the Election Commission certifies that there are “difficulties in holding elections”. Neither is applicable in Kashmir. But one year isn’t enough for New Delhi, which has kept the charade going under ‘central rule’ and wants to carry on until the next election. So, another gigantic distortion of the Constitution is effected. The state is not only bifurcated but reduced, dismembered into two Union territories.

From a specially protected state to an ordinary state to a UT which is a mere vassal of the home ministry—is there any better way to strip Kashmir of its identity and inflict wounds of betrayal with no hope of fair dealing? The Supreme Court does not question what it means for federalism when the Union unilaterally deprives an entire territory and its peoples of representation by dissolving statehood. Mind you, this is going to haunt every state that goes out of step with the Centre, this business of reductio ad absurdum to a Union territory.

Imagine Kerala and Tamil Nadu being carved out and administered from North Block. Bad enough that they have governors who routinely obstruct state legislation by the stratagem of withholding assent or indiscriminately referring Bills to the President, who, of course, must heed the Centre.

A nail is driven through the concept of federalism in the Supreme Court’s judgment.  We are rapidly moving from a federal or quasi-federal setup to one that’s controlled by the Centre. As it is, our elections resemble a presidential form more than a parliamentary one. Things fall apart, the Centre holds too much. (Apologies to WB Yeats).

John Marshall, chief justice of the US Supreme Court for 34 years and one of the world’s greatest judges ever, famously said: “We must never forget that it is a Constitution that we are expounding…intended to endure for ages to come.” Through time and various challenges, it is this document that embodieS the essential faith and purpose of the coming together of peoples into a country, and of India being a Union of States (both important, not Union ruling over states).

What kind of country are we, what kind of people are we, and do we keep the promises we made? You cannot interpret a Constitution like a contract and hedge, restrict, qualify, or overlook to award the claim to a party. Clever reasoning has no place here. Basic intent matters just as much as basic structure.

Sriram Panchu is a senior advocate at Madras High Court. Views are personal.

(Edited by Humra Laeeq)