Upholding the Centre’s decision to scrap Jammu and Kashmir’s special status, a five-judge constitution bench of the Supreme Court validated the Parliament’s power to make changes to Article 370 and clearly rejected the argument that the erstwhile state ever had the exceptionalism of “internal sovereignty”. A significant verdict, by all means, as it provides a firm judicial ground for the long process of J&K’s constitutional integration into India’s federal structure and placing it as an ordinary territorial unit of India’s national sovereignty.
Along with this crucial part of the judgement, the court accepted the government’s promise of restoring statehood to Jammu and Kashmir, and set September 30 as the deadline for conducting assembly polls. All these aspects of the verdict, the key part as well as the adjunct, touch upon some larger aspects of the constitutional edifice, its evolving philosophy as a living document, and most significantly, apply the judicial prism to see India’s federal polity as a subtext to the the larger national architecture.
In doing so, the verdict presents the constitutional jurisprudence to settle some points of ambiguity that had beset discussions on Article 370. In significant ways, the order’s line of judicial reasoning has sought to answer some key questions that surfaced in the responses to the Centre’s August 2019 move.
First, the apex court has ruled that Article 370 was always a temporary provision, as it was placed under Part XXI of the Indian constitution which deals with temporary and transitional provisions, and hence, its purposes could be seen only in temporary and transitional circumstances of history, and not as a parallel source for any claim on ‘internal sovereignty’. The verdict rejects any space for exceptionalism in how the sovereign union is placed in its relations with the constituent units. In essence, the verdict unequivocally reiterates the Indian state as the only repository of any form of sovereignty, and any other claim as unconstitutional.
Second, a key aspect of Indian constitution was brought to the fore when the court held that the president, in exercise of Article 370(3), can unilaterally issue a notification that Article 370 ceases to exist, and that dissolution of the Constituent Assembly of Jammu and Kashmir didn’t affect the president’s power to declare it inoperative. This was also in the verdict’s reiteration that the orders issued under president’s rule had constitutional validity.
In simpler terms, this part of the judgement reasserts what has always been a widely shared observation about the nature of India’s federal structure – its tilt towards the Centre. The fact that India’s constitution framers opted for an inclination towards the Centre in India’s federal scheme of ‘union of states’ has been evident for long, and any alarm over the alleged “subversion” of federalism has to be seen in the historical light of the makers, motives and the evolution of Indian constitution.
At the cost of stating the obvious, one may recall that India’s Constituent Assembly – the union powers committee headed by Jawaharlal Nehru himself – opted for a strong bias in favour of the Centre while framing India’s federal structure.
The obvious inclination towards a strong Centre has made scholars like Professor KC Wheare describe the Indian state as “quasi-federal” in nature. In his landmark work The Indian Constitution: The Cornerstone of a Nation (Oxford University Press, 1966), Granville Austin calls it a “new kind of federalism to meet India’s particular needs”.
At the time of the framing of the constitution, among other factors, the imperative of a strong Centre was seemingly shaped by the challenge of nation-building in the face of the twin challenges of fissiparous tendencies seen in the experience of Partition, and bringing together more than 500 princely states of erstwhile British India into the fold of the Indian union. Now the “particular needs”, to use Austin’s phrase, are finding accommodation in more contemporary responses to nation-building and national security concerns.
Moreover, the Centre had reasons to argue how the non-reciprocity in migration, settlement and public employment avenues with the rest of the country had strained the then existing federal arrangement with a border state that remained a site of cross-border terrorism sponsored by a hostile neighbour.
Third, in the last seven decades, a key question that Article 370 posed for constitutional jurisprudence was whether the claims of national self-determination can be shared by the sovereign nation-state with a constituent unit that has agreed to be a part of it under conditions of special constitutional privilege, or if the latter should make way for the former’s vision of national interest and territorial security. In a different sense, the Supreme Court has reflected on this question and expressed its opinion in an evolutionary frame: the long drawn integrative efforts of the Indian state which resulted in the 2019 move. That is why the court was of the view that the president’s order to abrogate the special status of Jammu and Kashmir was the culmination of a “ gradual and collaborative exercise” spread over the past 70 years between the Centre and the state of Jammu and Kashmir to integrate the latter with the union.
The above aspects are some of the wider range of judicial considerations that shaped the reasoning with which the Supreme Court decided on the constitutionality of the move to make the August 2019 changes in the Article 370.
These aspects also cover some key philosophical underpinnings of the judgment. In essence, the verdict reaffirms the constitutional grounds for the edifice of national sovereignty of the Indian union, with territorial integrity as its keystone and the Centre as its custodian in the Indian federal scheme.
In reiterating all this, the apex court has ruled out any room for exceptionalism, and thus presented a constitutional closure to a much debated question lingering from the formative years of post-Independence India.
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