Supreme Court’s Article 370 judgment leaves crucial questions unanswered on federalism and sovereignty

Despite recognising asymmetric federalism, the verdict overlooks concerns about sovereignty, Parliament’s powers, and the future of statehood.

The five-judge Constitution bench comprising Chief Justice of India Justice D.Y. Chandrachud, Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant. The bench admitted that Article 370 was an instance of asymmetric federalism but skipped any discussion on why lack of “internal sovereignty” should deprive Jammu and Kashmir of its asymmetrical federalism. | Photo Credit: ANI

In its judgment delivered on December 11, the Supreme Court’s five-judge Constitution bench, defines asymmetric federalism as a part of the Indian federal scheme, involving differential rights to certain federal sub-units. The bench interprets asymmetric federalism as a part of the basic structure.

The main judgment, authored by the Chief Justice of India, D.Y. Chandrachud, on behalf of himself, and Justices B.R. Gavai and Surya Kant acknowledges that the Constitution accommodates concerns specific to a particular State by providing for arrangements that are specific to that State. Articles 371A to 371J are examples of special arrangements for different States, and this is nothing but a feature of asymmetric federalism, which Jammu and Kashmir too benefits from by virtue of Article 370, the judgment adds.

The judgment asserts that in asymmetric federalism, a particular State may enjoy a degree of autonomy which another State does not. “The difference, however, remains one of degree and not of kind. Different states may enjoy different benefits under the federal setup but the common thread is federalism,” the judgment explains.

Asymmetric federalism

In Paragraph 165, the judgment specifically mentions that the special circumstances in Jammu and Kashmir necessitated a special provision, that is Article 370, and that it is an instance of asymmetric federalism. In Paragraph 481, the bench admits that while there are certain “unitary” characteristics present in the constitutional structure in terms of which the Union government has overriding powers in some situations, the existence of federal elements in the form of governments envisaged by the Constitution is a cornerstone of the polity. “This set-up has been described as quasi-federal, asymmetric federalism or cooperative federalism,” the bench adds.

Justice Sanjay Kishan Kaul, in his concurring but separate judgment, adds that Jammu and Kashmir took a deliberate and conscious decision of joining India and negotiating autonomy within the asymmetrical federal model.

How then did the judgment find the abrogation of Article 370 a valid exercise of power by the Union Government? The answer to this lies in the subtle and needless distinction between asymmetrical federalism and sovereignty. The bench found that the State of Jammu and Kashmir did not retain any element of sovereignty after the execution of the Instrument of Accession (IoA) and the issuance of the Proclamation dated November 25, 1949, by which the Constitution of India was adopted. “The State of Jammu and Kashmir does not have ‘internal sovereignty’ which is distinguishable from the powers and privileges enjoyed by other States in the country,” the bench clarifies.

Basic structure under threat?

But the bench skips any discussion on why lack of “internal sovereignty” should deprive Jammu and Kashmir of its asymmetrical federalism, which it admits is a feature of the basic structure of the Constitution. Just because Article 370 was conceived of as a temporary provision, as the bench asserts citing historical and other constitutional provisions, can its continuance as a feature of asymmetrical federalism be dispensed with, albeit ignoring its disastrous consequences for the basic structure? If the basic structure of the Constitution is disturbed, its very edifice is under threat, as observed by the Supreme Court in another case.

In Paragraph 163, the bench asserts that residual legislative powers cannot be equated to residual sovereignty. “It instead reflects the value of federalism and the federal underpinnings of the Constitution of India,” the bench adds. The bench made this claim in the context of Jammu and Kashmir, which unlike other States, had residuary legislative powers in view of Section 5 of its Constitution. The Constituent Assembly of Jammu and Kashmir, the bench recalled, had taken a consistent stand that sovereignty with respect to all matters other than those stipulated in the IoA continued to reside in the State.

In his separate and concurring judgment, Justice Sanjiv Khanna said that conversion of a State into a Union Territory has grave consequences, amongst others, it denies the citizens of the State an elected State government and impinges on federalism. Despite that, the bench shied away from examining the validity of downgrading the erstwhile State of Jammu and Kashmir to two Union Territories. | Photo Credit: ANI

Even if the bench is justified in making this distinction between internal sovereignty and a federal feature, there is no discussion in the judgment as to why such an important federal underpinning of the Constitution should be abandoned without sufficient justification.

In Paragraph 482, the bench quotes Dr.B.R. Ambedkar approvingly as having stated in the Constituent Assembly that the States under our Constitution are in no way dependent upon the Centre for their legislative or executive authority, and that the Centre and the States are coequal in this matter. In Paragraph 483, the bench states that the existence of the States breathes life into democracy by empowering citizens to participate in governance. The bench also relies on Article 1 to state that the States are essential and indispensable to the constitutional structure of the country, and that the Union cannot exist without the existence of the States.

In his separate and concurring judgment, Justice Sanjiv Khanna adds that conversion of a State into Union Territory has grave consequences, amongst others, it denies the citizens of the State an elected State government and impinges on federalism. He also observes that conversion or creation of a Union Territory from a State has to be justified by giving very strong and cogent grounds and that it must be in strict compliance with Article 3 of the Constitution.

Despite such clear enunciation of the law, the bench shied away from examining the validity of downgrading the erstwhile State of Jammu and Kashmir to two Union Territories merely because Solicitor General Tushar Mehta promised that the Centre would restore statehood.

Diminishment of representative democracy

In their pleadings before the Court, the counsel for the petitioners clearly pointed out that in the history of independent India, an existing State has never been retrograded into a Union Territory, and that this leads to a diminishment of representative democracy and federalism. The Indian understanding of federalism, the petitioners highlighted, is not to treat states as mere administrative units. The adage that India is an “indestructible union of destructible states” only means that the States can be reorganised by the Parliament; but they cannot be extinguished or retrograded into the Union Territories, in violation of the federal structure, the petitioners told the bench during the hearing.

More important, the petitioners told the bench that the power under Article 3 of the Constitution—dealing with the formation of new States and alteration of areas, boundaries, or names of existing States—cannot be used by Parliament to create a “Union of Union Territories”: a euphemism to the splitting of erstwhile Jammu and Kashmir into two Union Territories, namely, Jammu and Kashmir and Ladakh. This is because Article 1(1) states that India, that is Bharat, shall be a Union of States. The issue is not whether Parliament would in fact do that, they argued, and asked the bench to recognise that the power of the Union under Article 3 clashes with the principle of federalism.

But the bench not only failed to examine Parliament’s power under Article 3 in the light of the bifurcation of the erstwhile Jammu and Kashmir State into two Union Territories, but also did not subject the Union government’s claim of causing no infringement to any federal features to critical scrutiny.

More significantly, the bench sadly failed to lift the veil and examine the validity of the proclamation of President’s rule under Article 356 of the Constitution to enable abrogation of Article 370, because in its view, the petitioners’ challenge to it did not survive after the splitting of the erstwhile State into two Union Territories. It was a clear subterfuge by the Union Government which went unexposed by the Court.

V. Venkatesan is an independent legal journalist based in New Delhi. Formerly Senior Associate Editor with Frontline, he has been reporting and commenting on legal issues for news portals.