A judgement of the Hon’ble Supreme Court is the law declared and is binding on all citizens of India. It is therefore entitled to the utmost respect and obedience. On December 10, 2023, a Constitution Bench of the Court delivered a unanimous judgement upholding the ‘abrogation’ of Article 370 of the Constitution. The Court has pronounced that the former state of Jammu & Kashmir no longer enjoyed a special status.
The Court pointed out that the provisions of the Constitution of India had been, step by step, between 1950 and 2019, extended to J&K and the ‘abrogation’ of Article 370 (a temporary provision) was the culmination of the process. Opinions may differ on the correctness of the conclusion, but the reasoning leading to the conclusion appears to be logical. However, there are other aspects of the ‘abrogation’ of Article 370 that are disturbing: the legality of the process followed by the central government/ Parliament and its implications for ‘federalism’ and ‘states’ rights’. These aspects concern not only Jammu & Kashmir, but all states of the country.
What Court Ruled
The Court’s judgement contained three main conclusions:
1. That the procedure followed by the central government was ultra vires Article 368 of the Constitution. A provision of the Constitution may be amended in only one way — by resorting to Article 368 and passing a Constitution Amendment Bill in Parliament with the requisite special majority. In the case of Jammu & Kashmir, the central government invoked Article 370(1)(d) to add clause (4) to Article 367 (the Interpretation clause), substituted the words ‘Legislative Assembly of the State’ for the words ‘Constituent Assembly of the State’ in the proviso to Article 370(3), and used the ‘amended’ Article 370(3) to abrogate Article 370. Please read the Court’s reasoning why the convoluted exercise was unconstitutional: Para 389 “…While the ‘interpretation’ clause can be used to define or give meaning to particular terms, it cannot be deployed to amend a provision by bypassing the specific procedure laid down for its amendment
Para 400 “…in Madhav Rao Scindia, this Court held that the power under Article 366(22) could not be used for a collateral purpose, to obviate the procedure under Article 368…Articles 370(1)(d) and 367 cannot be used for a collateral purpose in effect to modify or obliterate Article 370.”
Notwithstanding holding that the amendment of Article 370 was unconstitutional, the Court concluded that the exercise of power under Article 370(1)(d) by the President, applying all the provisions of the Constitution to Jammu and Kashmir, was valid and it had the same effect as abrogating Article 370 by virtue of a declaration under Article 370(3). On the requirement of concurrence of the state government under the second proviso to Article 370(1)(d), the Court held that it was not necessary: the correctness of the latter conclusion is highly debatable.
Issue “Left Open”
2. The Court ought to have examined the question whether the resort to Article 3 to divide the state into two Union Territories was illegal. However, the Court declined to adjudicate on the issue because the central government’s Counsel submitted to the Court that the government intended to restore statehood to Jammu & Kashmir (minus the UT of Ladakh) and hold elections. Accepting the submission, the Court declined to examine the question of illegality and “left open” the question to an appropriate case. Besides, while the Court set a time limit for holding elections (September 30, 2024), the Court did not stipulate a deadline for restoring statehood. Since it is obvious that elections should be held after restoring statehood, both events are wrapped in uncertainty.
3. The third issue (undecided) is the most troublesome. Under Article 3 of the Constitution, no Bill for altering the territory of a State or forming a new State or Union Territory, etc., shall be introduced in Parliament except after the President ascertained the views of the legislature of that State. Jammu & Kashmir was under President’s rule since December 19, 2018. Consequently, all powers and functions of the state legislature were assumed by Parliament. The “views” of the state legislature were supplanted by the “views” of Parliament. The President (on the advice of the prime minister) consulted Parliament (= State legislature) and the Parliament expressed the “views” of the State legislature. It was a strange double-act by Parliament! Thereupon, Parliament divided the state of Jammu & Kashmir into two Union Territories — Ladakh and J&K.
Devil Wears Prada
If the constitutionality of this exercise remains uncertain, any State could be brought under President’s rule, the President can ascertain the views of the State legislature (= Parliament) and the Parliament can divide a State and reduce the State into two or more States or Union Territories. In most cases, the abolition of the former State will be irreversible. In any event, most decisions taken by the governments of the new States or Union Territories will be irreversible.
Do you think that the Constituent Assembly that consisted of many legal luminaries and voted for a federal India and a parliamentary form of government imagined such a dystopian future? Keep aside the ‘abrogation’ of Article 370. Of greater concern to the country is the devilish ways in which the provisions of the Constitution can be bent and twisted by the government to undermine states’ rights and federalism.
Of greater concern is the devilish ways in which the provisions of the Constitution can be bent by the government
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17.12.2023
A judgement of the Hon’ble Supreme Court is the law declared and is binding on all citizens of India. It is therefore entitled to the utmost respect and obedience. On December 10, 2023, a Constitution Bench of the Court delivered a unanimous judgement upholding the ‘abrogation’ of Article 370 of the Constitution. The Court has pronounced that the former state of Jammu & Kashmir no longer enjoyed a special status.
The Court pointed out that the provisions of the Constitution of India had been, step by step, between 1950 and 2019, extended to J&K and the ‘abrogation’ of Article 370 (a temporary provision) was the culmination of the process. Opinions may differ on the correctness of the conclusion, but the reasoning leading to the conclusion appears to be logical. However, there are other aspects of the ‘abrogation’ of Article 370 that are disturbing: the legality of the process followed by the central government/ Parliament and its implications for ‘federalism’ and ‘states’ rights’. These aspects concern not only Jammu & Kashmir, but all states of the country.
What Court Ruled
The Court’s judgement contained three main conclusions:
1. That the procedure followed by the central government was ultra vires Article 368 of the Constitution. A provision of the Constitution may be amended in only one way — by resorting to Article 368 and........
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