Article 370: Rest in Peace in the Paradise

By Shelal Lodhi Rajput & Himangi Indora 

“Who has not heard of the Vale of Cashmere, With its roses the brightest that earth ever gave, Its temples, and grottos, and fountains as clear As the love-lighted eyes that hung over their wave?” 

– Thomas Moore (1817)

Goodbye to Art. 370

 

“India, that is Bharat shall be the union of states” is Article 1 of the Constitution of India, it seems simple but is a complex conundrum. The decision made by the Union Government to end the special status of J&K by abrogating Article 370 of Indian constitution had been challenged in writ of batch petitions (23 in all) before the Supreme Court of India and in a much awaited decision the five judge Constitution bench unanimously held that abrogation of Art. 370 is constitutional in nature and is not ultra vires.

The court ruled that the State of J&K had no internal sovereignty and Art. 370 was a temporary provision. Legally speaking, the facets involved in the case fundamentally were Basic Structure Doctrine, Asymmetrical federalism and Rule of law amongst other things.

It was argued that procedure adopted for abrogation of Art. 370 did not adhere with the principles of Indian constitution as it’s manifestly arbitrary and opposite to the rule of law. The Union of India argued that as an aspect of the constitution as a living document, it needs to evolve in response to contemporary circumstances to untie the shackles of history. 

 

 

The Basic Structure and Art. 370

 

The fulcrum of argument advanced by Petitioner’s was based on the decision of Apex Court in Madras Bar Association v. Union of India (2014) amongst other decisions’. Specifically, the majority opinion of Justice Khehar, where he opined that every state action can be reviewed under the ambit of basic structure, if such action infringes with basic features of the constitution. It has been reiterated by J.Khehar in NJAC Case in minority opinion (Constitutional bench).

Per contra, respondent argued against the applicability of basic structure test for instant actions on the basis of Justice Lokur’s dissent in NJAC case, the reliance was also placed on State of Karnataka v UOI (1977) amongst other rulings. Respondent contended that basic structure doctrine is only applicable on constitutional amendments and power exercised under article 370 isn’t any constitutional amendment and thus, cannot be challenged for destroying the basic structure.

Further, it’s argued that judicial review is not permissible for the policy driven political decisions taken by competent government.

On aspects of constitutional interpretation pertaining to state actions the decision is vital as the Court has resorted to the rationale that argument pertaining to doctrine of basic structure is far-fetched. The Court expressed its oral agreement during the oral arguments, however, the Court has not commented on the aspect of applicability of basic structure to constitutional amendments or not.

Pertinently, the constitutional bench is bound by decision of Madras Bar Association as that ruling was also by Constitution bench and in negating that ruling (if) then there’s a need to make a reference to a larger bench to ascertain the correctness of Justice Khehar’s decision. Summing up, the aspect of basic structure doctrine’s applicability this decision failed to settle the position in totality as there exists contrary rulings pertaining to applicability of doctrine.

It’s also vital to note that the pluralism and diversity with a unique blend of asymmetrical federalism is depicted by Art. 370 as it strengthens the underlying aspect of one nation, one flag and one constitution. On aspects of federalism Justice Khanna said that “Art. 370 was a mixture of asymmetric federalism and not sovereignty and did not have a permanent character. Abrogation of Art. 370 does not negate the federal structure as citizens living in J&K do and will enjoy the same status and rights as given to the citizens residing in other parts of the country.”

Birdseye view

 

The ruling is important from scion-legal perspective and has diverse implications while having analysed one of the many legal conundrums involved therein, it’s vital to cover the key outcomes from this landmark ruling.

Primarily, the court has dealt with 08 different issues and broadly, 04 key issues ranging from ascertaining validity of action of the President to strike down Art.370,  nature of Art. 370, usage of Art.367 for amending existing articles and the act of making State into a UT. In crux, the Apex Court held that:

  • The Court ruled that Art.370 was introduced as a temporary provision with an integrative approach for integration of J&K into India. Court also noted that J&K did not retain any element of sovereignty (internal);

  • The Court ruled that there exists limitations on usage of powers u/a 356 by the President and during enforcement of Art. 356 ordinary actions of executive is not open to challenge as it opens the flood gate for challenge and lead to chaos;

  • The Court ruled that C.O. 272 is ultra vires in law to the extent as it modifies Art. 370 as it cannot be done by bypassing the procedure for amendment or through backdoors;

  • The Court ordered the Union to conduct elections in J&K by September 30. 2024 along with that Union is directed to bring back the Statehood at the earliest. Further, the creation of Ladakh as UT was upheld;

  • However, the court left the question unanswered as whether Parliament can convert a State into a UT.
  • In progressive transformative constitutionalism facet and fostering human rights approach Justice Kaul recommended the setting up of Truth and Reconciliation Commission in J&K as set up in South Africa, Australia and in other countries.

Conclusion

 

The decision is landmark on multidimensional fronts ranging from social to legal perspective along with that it has had an impact on other decisions taken by the Union since 2019 after abrogation of Art. 370.

J&K gets with the mainstream India by abrogation of Article 35-A along with Art. 370. This decision also validates the other actions of Union ranging from Reorganisation of J&K, Delimitation of parliamentary and legislative constituencies and most recently the Bill was passed in Lok Sabha to amend Jammu & Kashmir Reorganisation Act, 2019 where government has reserved the seats for Kashmiri pandits and displaced people from PoK. 

In toto, the decision should be welcomed as it is substantially reasoned one in its approach while reaching to its conclusion. However, analysing and understanding it from legal perspective certain points are still left unanswered that need to be considered at the earliest by the Apex Court in coming time but the decision is not flawed in its approach and thus, a welcoming one.

Notably, apart from this case, the debate regarding the constitutional validity pertaining to action of Union offered us different aspects legally from Indian jurisprudence like the treatment of asymmetrical federalism, the basic structure doctrine, actions of executive and legislative bodies amongst diverse other facets.

Shelal L. Rajput is a law student at Symbiosis Law School, Pune and Himangi Indora is doing her graduation from St. Stephen’s College, Delhi University.

 

Disclaimer: The views expressed are not necessarily those of The South Asian Times 

Images courtesy of India AI and Jagran English

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