Supreme Court’s Article 370 verdict: Legal victory for Centre, but long road to reconciliation remains

Even though the landmark ruling sets the stage for integration of Jammu and Kashmir, concerns linger over the potential for unchecked central control.

A art student in Mumbai makes a painting welcoming the Supreme Court’s verdict on Decmeber 11 upholding the Centre’s decision to abrogate Article 370 of the Constitution. | Photo Credit: ANI

Very often, time is the essence of constitutional adjudication. The conclusions in the Supreme Court verdict on the special status for Jammu and Kashmir are almost along expected lines. It endorsed a pre-existing reality: that Jammu and Kashmir does not possess special status any longer. The Presidential orders designed to abrogate the special status were upheld by the Court after more than four years. No one could have expected the Court to turn the clock back after such a long period during which the very characteristics of Jammu and Kashmir and Ladakh have undergone a fundamental change.

The Centre’s move to remove the special status was clandestine. The Court did not favour the ingenious method of amending Article 367 and altering the definition clause in it by stating that the Constituent Assembly of Jammu and Kashmir would mean the Legislative Assembly of Jammu and Kashmir. However, in the end, the Court endorsed the Presidential decision to issue a notification putting an end to Article 370. The Centre opted to amend Article 367 to overcome the requirement to get prior approval from the Jammu and Kashmir Constituent Assembly, which does not exist any longer. The Constituent Assembly for the State was dismantled in 1957. Instead of doing that, it would have been enough to invoke Article 370(3) itself which carried an inbuilt self-extinguishing clause, said the Court. The action of the President during a state emergency is open to judicial scrutiny, yet, in the case on hand, according to the Court, the proclamation of Presidential rule and issuance of orders abrogating the special status were legitimate and justifiable.

Debate over ‘special status’

Some historical exigencies prevailed during the 1940s, which necessitated the grant of special status to the State. Yet, nothing in history is permanent. In the case of Kashmir, the makers of the Constitution did not want to have a Jammu and Kashmir with permanent special status. The express words in Article 370—“temporary provisions with respect to the state of Jammu and Kashmir”—make this abundantly clear. This was different from the phraseology employed in the succeeding articles in the Constitution, that is, Articles 371 on the States of Maharashtra and Gujarat, 371A on the State of Nagaland, 371B on Assam, 371C on Manipur, 371D on Andhra Pradesh and Telangana, 371F on Sikkim, 371G on Mizoram, 371H on Arunachal Pradesh, etc. These Articles, as distinct from Article 370 on the State of Jammu and Kashmir, did not contain the prefix “temporary” before the provisions in the title.

Therefore, the plea to give permanent status for Article 370 contradicted the very text of the Article and the Court found that such a plea would also meddle with the process of integration. The “gradual and collaborative” process of integration was very much envisaged in the constitutional scheme, and this was validated by the Court in the judgment. The “permanency argument” that many of the petitioners have invoked was unreasonably obsessed with the past. It also remained unconnected with the contemporary ground realities in the State.

The so-called “special status” often resulted in blatant discrimination to many in the State. A report by Pallavi Sareen in The Wire (June 28, 2019) highlights the plight of the Valmiki community who could have only worked as safai karmacharis (sweepers) if the “special status” rules continued. They were fenced out of education, employment, and even residential rights. The reluctance and failure of the Congress and its allies to revisit Article 370 through history gave space for the present regime to use the situation to its political advantage. That it has scored political mileage by such an exercise is no reason to discard the realities.

The Supreme Court negated the idea of separate sovereignty for the State in clear terms, which was quite possible by referring to historical materials like the Instrument of Accession, white papers, Assembly debates in the Jammu and Kashmir Constituent Assembly, etc. Thus, on Article 370, the Court accepted what the Centre did, though by deviating from the Centre’s methodology. The Court also endorsed the power of the President and Parliament in promulgating the orders that led to the present scenario.

The temporary provision as contained in Article 370 was transitional and the Constitution did not envisage permanent special status for the State. There were conflicting verdicts by the Supreme Court on the question of whether Article 370 was a temporary provision. In Prem Nath Kaul v. State of Jammu and Kashmir (1959), a Constitution Bench of the Supreme Court consisting of five judges held that it was a temporary provision. However, in the decision of Sampath Prakash (1968), the Court held the opposite. That too was a five-judge Bench.

Yet, in Shah Faesal v. Union of India (2020), the Court held that there was no conflict in the legal sense and a reference to a larger Bench was not warranted. The five Judge Bench in Shah Faesal said that the later verdict was per incuriam (through lack of due regard to the law or the facts). Thus, the ratio in Prem Nath Kaul was reiterated in the instant case, which, in turn, facilitated the endorsement of the Centre’s action in Jammu and Kashmir. There is a legal criticism against non-reference of the issue to a larger Bench.

Pros and cons

The verdict has its pros and cons. The declaration that Jammu and Kashmir is an integral part of India has the support of historic material, ranging from the Instrument of Accession to the speeches in the Jammu and Kashmir Constituent Assembly. The Court underlined the need to have elections in Jammu and Kashmir to restore the representative character of democracy. However, on the question of converting a State into Union Territories, the Court left it open for future adjudication by maintaining judicial silence. The Court did not examine the validity of the action in view of the Centre’s assurance that statehood for Jammu and Kashmir would be restored “as soon as possible”.

Supreme Court Justice Sanjay Kishan Kaul emphasised that the Truth and Reconciliation Commission for Jammu and Kashmir should be an independent and impartial body and should not act as a criminal court with a deterrent objective. | Photo Credit: ANI

Again, although the Court fixed a time frame for holding elections in Jammu and Kashmir not later than September 30, 2024, it did not lay down a time frame for the restoration of its statehood. It only recorded the assurance given by the Solicitor General. It is not certain if Jammu and Kashmir will have elections as a Union Territory or State, as it ultimately depends upon the sweet will of the Centre. Having fixed a timeline for election, the Court could have directed restoration of statehood before the election for the sake of clarity and certainty. This is a glaring deficit in the verdict.

The criticism that the Centre’s action of promulgating Presidential rule and then removing the special status was carried out without an elected Assembly in the State might hold valid in the time to come. It might be felt that political exigencies narrowed down the scope of constitutional adjudication.

Yet, the apprehension that the present verdict might motivate the Centre to convert the States to Union Territories is unfounded. At any rate, the Court has not endorsed such an action in the context of Jammu and Kashmir. “Formation of new states and alteration of areas, boundaries or names of existing states” comes under Article 3 of the Constitution. A conversion of a State into a Union Territory is not envisaged by this Article. The Centre, quite wisely, conceded to restore statehood, as it was on a sticky wicket on this point. At any rate, the apprehension that the lack of decision on this issue will pose a threat to India’s federalism is unfounded, as long as Article 3 remains in the present form and is understood and invoked as such.

Truth and Reconciliation

Justice Kaul’s “epilogue” contains a plea for constituting a Truth and Reconciliation Commission for Jammu and Kashmir, as was done in South Africa, with a view to heal the wounds of the past. Although Justice Kaul emphasised that it should be an independent and impartial body and should not act as a criminal court with a deterrent objective, the whole issue was left to the Centre, which again will only be motivated by majoritarian impulses. Whether the current regime is capable of objectively taking stock of the past, by overcoming regional and religious barriers, is a serious political question which, perhaps, the Court was not concerned with. Yet, that the Court has spoken about the long saga of serious human rights violations in the State, which was not limited to Kashmiri Pandits, is clearly a welcome step.

The recommendations in the “epilogue” need to be taken up as a national agenda, cutting across political differences, in the time to come. The Supreme Court has only put down reality into a concrete judgment. One might recall what Karl Marx said in a different context: “Reason has always existed, but not always in a reasonable form.”

Kaleeswaram Raj is a lawyer at the Supreme Court of India.