Critical perspective on the Supreme Court's decision
The SC verdict upholding the abrogation of Jammu and Kashmir’s special status under Article 370 of the Constitution.
The verdit represents not merely judicial deference, but a retreat from the Court’s known positions on federalism, democratic norms and the sanctity of legal processes.
It is undoubtedly a political boost to the ruling BJP and an endorsement of its audacious move in August 2019 to strip Kashmir of its special status and bring it on a par with other States.
It is also a verdict that legitimises the subversion of federal principles, fails to appreciate historical context and undermines constitutional procedure.
The alarming interpretation comes close to undermining a basic feature of the Constitution as enunciated by the Court itself and may have grave implications for the rights of States.
Its permitting a range of hostile and irrevocable actions in the absence of an elected body.
The government had adopted a complicated process for removing the State’s special status.
It had gone on to divide and downgrade it into two Union Territories (UT).
It began with a Constitutional Order on August 5, 2019 applying the whole of the Constitution to J&K.
It changes some definitions so that the State’s Legislative Assembly could recommend the abrogation instead of its now-dissolved Constituent Assembly, as originally envisaged in Article 370(3).
Verdicts potential negative consequences
The Court has reasoned that the Constitution of India has been applied incrementally from time to time even after the Constituent Assembly was dissolved in 1957.
The removal of special status is nothing but the culmination of the process of its integration.
Even if this line of argument is seen as unobjectionable, the idea that in the absence the Constituent Assembly and in view of the subordination of J&K to the sovereignty of India.
There is no fetter on the government’s intention to hollow out its residual autonomy is opposed to all canons of federalism and democracy.
There is no doubt that J&K is not vested with any sovereignty.
The Court says Article 370 represents no more than a form of asymmetric federalism.
The Court’s failure to give its ruling on whether the Constitution permits the reorganisation of J&K into two UTs is an astounding example of judicial evasion.
It is shocking that the Court chose not to adjudicate a question that arose directly from the use of Article 3 of the Constitution for the first time to downgrade a State.
It is questionable whether a mere assurance of a remedial measure can impart validity to any action.
The Court upheld the carving out of Ladakh as a separate UT.
The verdict is an invitation to the Union to consider creation of new UTs out of parts of any State.
The Court’s position that there is no limit on the President’s power or Parliament’s competence to act on behalf of the State government and its legislature is equally fraught with danger.
The reference to “non-legislative” powers of the State Assemblies poses a significant threat to the powers devolved to the States.
The view that some of these may be restored by a subsequently elected government or House is of little consolation if actions taken under the cover of President’s Rule cause great damage..
This is a verdict that weakens institutional limitations on power, and, while rightly upholding Indian sovereignty over J&K, it undermines federalism and democratic processes to a frightening degree
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