By Amal Chandra (Author, activist, commentator and accomplished graduate in Political Science from Pondicherry University) and Hima Tara Sam (MA in History, Delhi University)
In the aftermath of the groundbreaking verdict delivered by the Supreme Court on December 11 regarding the abrogation of Articles 370 and 35(A), the political landscape of India has witnessed a seismic shift. Despite the passage of time since the verdict, its implications continue to echo through the corridors of the nation’s constitutional framework and federal polity. It is imperative to explore the legal intricacies, political theories, and evolving dynamics surrounding the landmark judgment, shedding light on the nuanced perspectives that shape the constitutional odyssey of Jammu and Kashmir.
The Legal Tapestry
Chief Justice D. Y. Chandrachud’s meticulous scrutiny of the legal intricacies surrounding Jammu and Kashmir unveiled a profound examination of historical context and constitutional provisions. The court’s emphasis on Yuvraj Karan Singh’s 1949 proclamation, superseding specific clauses of the Instrument of Accession (IoA), laid the foundation for the verdict. The dismissal of notions of ‘distinct autonomy’ and the assertion of the temporary nature of Article 370 positioned it among the Constitution’s transitional provisions.
Crucially, the judgment challenged the argument that Article 370 attained permanence due to the Constituent Assembly’s retention, asserting that the President’s power to repeal it remained intact despite the Assembly’s dissolution. The examination of Constitutional Order (CO) 272 marked a departure from previous cases, affirming its effective amendment of Article 370. Justice Kaul’s nuanced perspective added depth, questioning the permissibility of using the interpretation clause (Article 367) to amend Article 370 while highlighting the validity of CO-272 in incorporating the entire Constitution into Jammu and Kashmir.
Shifting the lens to Article 356, the judgment underscored the need to align actions under this article to restore constitutional machinery, emphasizing a reasonable nexus between Parliament’s exercise of powers and the proclamation’s goal. Furthermore, the analysis delved into Article 3, rejecting distinctions between law-making and non-law-making powers of the state legislature during the President’s Rule.
The Implications of Reorganization
The examination extended to the Jammu and Kashmir Reorganisation Act, 2019, which left open the question of whether J&K lost its character due to reorganization into Union Territories. The directive to restore Jammu and Kashmir’s statehood, coupled with the mandate for legislative assembly elections by September 30, 2024, sets the stage for a renewed political landscape.
Justice Kaul’s recommendation for a ‘truth and reconciliation commission’ to address human rights violations in J&K, along with emphasizing transitional justice and reparations, marks a significant step towards healing and accountability in the region. The Court’s limited authority underscores the importance of the Union taking responsibility for the transformative journey that lies ahead.
Federalism in Flux
The ruling firmly establishes the centre’s authority to dismiss state governments, invoke the President’s rule, and contemplate state reconfiguration. While the constitutional integrity, unity, and integration of the nation remain sacrosanct, questions arise about the extent to which the Constitution confers upon the centre the power to divest a region of statehood. This departure from the judiciary’s historical federalist stance raises pertinent questions about the evolving nature of India’s federal polity. The opacity surrounding the process leading to such a significant constitutional position demands scrutiny. The extraordinary implications of the ruling set a precedent that reverberates through the corridors of India’s political landscape, challenging the very fabric of federalism.
The seismic events in J&K hold the potential to redefine the political contours of the nation. As the people of the ‘erstwhile’ J&K state prepare to articulate their sentiments, the ruling becomes a touchstone for political theories that have framed India’s Constitutional trajectory.
This shift towards a more centralized approach to judgment aligns with theories advocating a strong centre, such as the unitary system, which posits that a strong central authority is essential for national unity and stability. However, this departure also raises concerns about the potential erosion of state autonomy, echoing fears expressed by proponents of federalism. The ruling echoes the principles of Carl Schmitt, who argued for a sovereign authority that could make decisive decisions in times of crisis. The Court’s affirmation of the center’s authority to reorganize states in exceptional circumstances aligns with Schmitt’s theory but invites scrutiny regarding the definition and extent of such ‘exceptional’ circumstances. On the other hand, we could reach strong reservations about the potential concentration of power in the center as viewed by scholars like K.C. Wheare.
Wheare’s federalism envisions a distribution of powers between the center and states. As India collectively reimagines the future for J&K, the overarching question of federalism stands as an unavoidable focal point. Decisions akin to the one taken on August 05, 2019, possess the transformative potential to alter the destiny of a populace indelibly. The lifting of the cloud over the region’s standing vis-à-vis the Union marks a pivotal moment in the progression of India, that is Bharat. However, the persisting inquiry revolves around the embodiment of moral integration and constitutionalism.
India’s historical trajectory post-colonialism was shaped by visionary leaders committed to national interests, peace, and confidence-building. The intricate nature of the present issue necessitates a nuanced examination, acknowledging the complexities embedded within the political landscape.
In the transformative journey that lies ahead, anticipations run high for the emergence of novel narratives. Yet, it is paramount to recognise that a government wielding a robust majority possesses the ability to shape public perceptions, even by distorting historical truths. In navigating these waters, the unwavering commitment to truth and openness becomes non-negotiable. Building trust and confidence among the citizenry should take precedence, requiring strategic initiatives aimed at fostering inclusiveness, Equality, and Justice.
As India stands at the confluence of history and the future, the eyes of the world keenly observe the unfolding chapters of its constitutional odyssey. The canvas may be aged, but time will be the real judge, unveiling whether new artistic expressions promise reconciliation, dignity, pride, and an elevated standard of living for the people of the region. The constitutional discourse in India is in a state of flux, and the journey ahead will undoubtedly shape the nation’s federal polity and political dynamics for years to come.