By Krishna Jha
Our democracy has lost each of its basics. From the recent crisis that proved to be an assault on not only federalism, but also its most relevant constitutional principles. The Supreme Court judgment on the abrogation of Article 370 of the Constitution and the dismantling of the state of Jammu and Kashmir into two union territories was itself a case of a constitutional court condoning the misuse of powers by the executive. Four years after the event, the three concurrent judgments of the five-judge Constitution bench, headed by the Chief Justice of India, have larger and long-lasting implications that strike at the roots of federalism and states’ rights.
The very fact that the Presidential order abrogated Article 370 when judiciary, deeply respected until now as the guardian of democracy, has been giving verdicts eroding the existing federal structure. was under President’s rule, which means that the Supreme Court had given its clearance to this betrayal of the commitment made to the people of J&K at the time of accession to the Indian Union. By upholding the ruling that Article 370 was a temporary measure and there was no ‘internal sovereignty’ for the state of J&K, the court has taken a turn away from the question of why special status was accorded to J&K and how such a status was not temporary, but part of a solemn commitment made to the people of Kashmir by the constitutional authorities. Article 370 represented a constitutional guarantee that this status would be defined and evolved with the concurrence of the representatives of the people of J&K.
The judgment delivered by the CJI, on behalf of three members of the bench, makes the claim that Article 370 was intended to “enhance Constitutional integration between the Union and the State of Jammu and Kashmir” rather than as a provision for special status of J&K. It further claims that the continuous exercise of power under Article 370 (1) by the President indicates that the gradual process of constitutional integration was ongoing.
The history of Article 370 shows that it was constantly misused to deny autonomy and encroach on the states’ powers over the years by the president exercising this power. How was that done? “Concurrence” was given under various spells of President’s rule by the centre’s own-appointed governor.
However, as per the peculiar logic of the verdict, “The declaration issued by the President under Article 370 (3) was a culmination of the process of integration and as such is a valid exercise of power”.
By this reasoning of the learned justices, J&K does not deserve even the special features or rights given to some of the north-eastern and other states in Article 371. There can be no better legal justification for the decades of denial of democracy and autonomy to J&K.
The Constitution, that always provided a step sheet for the ‘dos and don’ts’ has been pushed aside as the judiciary, deeply respected until now as the guardian of democracy, has been giving verdicts eroding the existing federal structure. The secular, ethno-federal democratic principles have been thrown into hungry hands and are torn into pieces.
The Constitution stands amended. The decision was taken by the Judiciary. The decision of the Supreme Court upholding abrogation of the special status of Jammu and Kashmir under Article 370 on August 5, 2019, stands intact. It is an act that does not have the honour of judicial acceptance, it also takes a position that goes against its own grain. It is not attempting to protect federalism, nor it stands for democratic values; all it does is promote a politically supportive pat on the back. The Supreme Court has released the government from the need of getting a hitherto imperative assent with two-third majority from both the houses. It is not the much needed assent to the act with two third majority, it destroys the very spirit of demos with kratos, as it becomes a rule of few on the majority destroying the first premise of democracy. The mechanism is not complicated. Only attempts are to be made to create a situation where law and order situation becomes vulnerable, and the pretext is ready to impose President’s Rule, under Art 356.
The step is also an indicator of the subversion of our unity in diversity, the historicity in which the composite culture. It had been a deadly attack on federalism coming from the court directly as it said that when the state is under President’s rule, it can opt to take any decision, either legislative or otherwise, leading to any act which can be of even irreversible consequences, on behalf of the state legislature.
The decisions have been taken. It is extremely unfortunate that the decisions had the court’s sanctions. How long do they think it will be before Modi begins to use the freedom their verdict has given him, to start overturning opposition governments in order to bend the whole of India to his and his Hindutva colleagues’ will?
To justify its decision, the bench has put forward two other supporting arguments. The first is that Article 370 was placed in part 21 of the Constitution titled “Temporary, Transitional and Special Provisions”. Thus it was never meant to be permanent. So all that the Modi government has done is to close the chapter on Kashmir.
The second is that over the decades since the accession, Kashmir’s laws have in any case been brought in line progressively with those of the rest of India. So as the government has argued, the autonomy shielded by Article 370 had been ‘gradually eroded’. (IPA Service)
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