Daily Editorial Analysis

How will Article 370 verdict impact federalism? (GS Paper 2, Polity and Constitution)

Why in news?

• On December 11, the Supreme Court unanimously upheld the power of the President to abrogate Article 370 of the Constitution, which in August 2019 led to the reorganisation of the State of Jammu and Kashmir (J&K) into two Union Territories and denuded it of its special privileges.
• It reasoned that Article 370 was only a ‘temporary provision’ to ease the accession of the then princely State to the Union at a time of internal strife and war.

What did the lead judgment say?

• In the lead judgment, Chief Justice of India D.Y. Chandrachud, writing for himself, Justices B.R. Gavai and Surya Kant, pointed out that J&K had divested itself of “any element of sovereignty” after the execution of the Instrument of Accession to the Union in October 1947.
• Justices Sanjay Kishan Kaul and Sanjiv Khanna concurred in their opinions. Constitutional experts say the observations in the verdict will have a lasting impact on federalism, which is recognised as a basic feature of our Constitution.

What did the petitioners argue?

• The petitioners had argued that the President while exercising powers under Article 356 of the Constitution cannot take actions with ‘irreversible’ consequences in a State during President’s rule.
• Significant legislative alterations were made to the State during President’s rule such as the repeal of its special status, the separation of Ladakh, and its conversion into a Union Territory which meant that the Union government could unilaterally bring about such enduring changes without having to solicit the consent of the State legislature.
• Dismissing such contentions, the Court reasoned that challenging the exercise of the President’s power on the ground of irreversibility would open the way for challenging everyday administrative actions which would in effect put the administration in the State at a standstill.
• It, however, underscored that such exercise of power must have a reasonable nexus to the object of the Presidential Proclamation.
• It added that the onus was on the person challenging the actions of the President during an emergency to prima facie establish they were a “mala fide or extraneous exercise of power”.
• Reliance was also placed on the Supreme Court’s ruling in S. R. Bommai versus Union of India (1994) which defined the ambit of powers that can be exercised during President’s rule.

Can a State be turned into a Union Territory?

• The Court observed that carving out the Union Territory of Ladakh out of J&K was permissible under Article 3 of the Constitution and accordingly upheld the Jammu and Kashmir Reorganisation Act, 2019.
• However, owing to the assurance given by the Union government that J&K’s statehood would be restored soon, the court did not go into the issue of whether the conversion of J&K into a Union Territory was valid.
• The court pointed out that the views of the State legislature regarding the proposed reorganisation of the State are recommendatory and not binding on Parliament.
• The Chief Justice, however, cautioned that “the necessary effect of converting a State to Union Territories which is that autonomy would be diminished, the historical context for the creation of federating units, and its impact on the principles of federalism and representative democracy” must be borne in mind.
• Reiterating similar concerns, Justice Sanjiv Khanna stated that the conversion of a State into a Union Territory has “grave consequences” and denies the citizens of the State an elected government, and impinges on federalism. Thus, such a conversion has to be justified by giving very strong and cogent grounds.

What about the role of the State?

• The Court ruled that the President while exercising powers under Article 370(3) of the Constitution can ‘unilaterally’ notify that Article 370 ceases to exist.
• It further said that there was no requirement for the President to secure the concurrence of the State government in this regard as mandated by the provisos to Article 370(1)(d).
• “The principle of consultation and collaboration underlying the provisos to Article 370(1)(d) would not be applicable where the effect of the provision is the same as Article 370(3).
• Since the effect of applying all the provisions of the Constitution to Jammu and Kashmir through the exercise of power under Article 370(1)(d) is the same as issuing a notification under Article 370(3) that Article 370 ceases to exist, the principle of consultation and collaboration are not required to be followed,” the Chief Justice reasoned.
• Such collaboration between the President and the State government would have been necessary if provisions of the Indian Constitution were to be applied to the State in a manner that would require amendments to the State Constitution.
• However, in this case, the President through Presidential Order ensured a total application of the Indian Constitution to the State to the effect that the State’s Constitution became inoperative.

What did the Court specify about the President’s powers?

• The petitioners had pointed out that the proviso to clause 3 of Article 370 makes it clear that the presidential power to abrogate Article 370 was contingent on the recommendation of the J&K Constituent Assembly.
• However, the Court ruled that even after the dissolution of the Constituent Assembly on January 26, 1957, the President’s power to abrogate the provision by exercising powers under Article 370(3) subsists and could be exercised “unilaterally”.
• The Chief Justice asserted that holding the power under Article 370(3) cannot be exercised after the dissolution of the Constituent Assembly would lead to “freezing of the integration” contrary to the purpose of introducing the provision.
• Concurring with this view, Justice Kaul emphasised that the purpose of Article 370 was to slowly bring J&K on par with the other States of India and thus the “requirement of recommendation of J&K Constituent Assembly cannot be read in a manner making the larger intention redundant”.

What about ‘asymmetric federalism’?

• The Court pointed out that unlike the Constitution of India, “there is a clear absence” in J&K’s Constitution of a reference to sovereignty.
• Article 370 was held to be merely a “feature of asymmetric federalism” similar to other provisions in the Constitution such as Articles 371A to 371J, examples of special arrangements for different States.
• If the position that Jammu and Kashmir has sovereignty by virtue of Article 370 were to be accepted, it would follow that other States which had special arrangements with the Union also possessed sovereignty.
• Although different States might enjoy varying degrees of autonomy, the difference, however, remains one of degree and not of kind in a federal set-up.