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Mainstream, VOL 62 No 1 January 6, 2024

Article 370 Judgment is Blow to Federalism, Constitutionalism and Democracy | Vijay Kumar

Friday 5 January 2024, by Vijay Kumar


The Constitution Bench judgment of the Supreme Court substantially upholding the highly controversial decision of the Central Government to withdraw Special Status granted to erstwhile J&K by virtue of Article 370 of the Constitution, and downgrading its status by sundering it and converting it into Union Territories has grave implications for federalism, constitutionalism and indeed democracy.

There is a difference between constitution and constitutionalism. Every country has its own Constitution, whether it is a totalitarian like Russia and China, downright rogue like North Korea and religiously regressive countries like majority of Middle Eastern countries have their own Constitution, but the constitutionalism is conspicuous by its absence in these countries.

Constitutionalism seeks to discipline the political action and exercise of political power by subjecting it to conform with the mandate and spirits of the Constitution. The Constitution allots power and delineates limitations on the exercise of power, and it is the practice of constitutionalism that interrogates the exercise of power when the limit set upon it is breached.

The Constitution, especially democratic constitution, confers rights on the citizens, and creates an independent judiciary to enforce these rights in the event of its infringement by the power of the day. Thus, constitutionalism can occur and flourish only when citizens assert their rights and independent institution, especially judiciary, protect the citizen from the arbitrary action of the government of the day.

The Constitution envisages ends and provides means to realize the same. Therefore it is a logical that an elaborate procedure is provided in the text of the Constitution itself in accordance with which power has to be exercised. The procedure is also meant to facilitate inter-institutional interaction and collaboration.

Article 370 of the Constitution, too, contains well- defined procedure to take away the special status granted to J&K. The proviso to sub-clause (3) of Article 370 mandated the concurrence of the Constituent Assembly of the J&K. It is true that States’ Constituent Assembly stood dissolved after framing J&K Constitution in 1957. In my considered opinion, the Parliament could have exercised to amend the Constitution granted to it under Article 368 of the Constitution to get rid off the proviso. Once the proviso mandated prior consultation with State’s Constituent Assembly was deleted, there was no embargo on the power of the Parliament to withdraw Special Status. But the procedure prescribed for carrying out amendment in the Constitution mandates 2/3rd separate majority in both the Lok Sabha and the Rajya Sabha and Narendra Modi led BJP Government might not have mustered 2/3rd majority in the Upper House. That is why, recourse to amendment for deleting proviso to sub-clause (3) of Article 370 was not resorted to, and instead, the Parliament, in brazen act of unilateralism, withdrew special protection. As the procedure contemplated under the Constitution was circumvented, the limitation on the exercise of power evaporated , and the result was an unbridled and one-sided exercise of power, and upholding this arrant abuse of power by the Supreme Court unmistakably marked the darkest moment for constitutionalism.

Consequential Impact on Federalism

The 11th December 2023 judgment of the Constitution Bench will also have fateful implications for federalism. Article 3 of the Constitution mandates the prior resolution of the State Assembly for alteration of its boundary. It is true that resolution passed by the State Assembly is not binding on the Parliament, but the procedural drill has to be gone through. The unilateralism of suo-motu variant through which the area of erstwhile J&K was reduced and State was bifurcated and its status downgraded by converting it into Union Territory was done in Humpty Dumpty manner by completely elbowing out the resolution of State Assembly, and by extension, the will of the people. This represents the crassest act of an exercise of unrestrained power and grievous assault on the spirit of federalism, declared as a basic feature of the Constitution by binding Nine Judge Bench judgment in Bomai case.

The Constitution Bench has also overlooked the fact that federalism is not merely a device to earmark legislative and executive area. Federalism also performs the function of check and balance. The requirement of prior consultation of the State Assembly is meant to gauge the local opinion. The procedure of consultation among high-level constitutional functionaries and institutions contemplated under the Constitution is of critical significance for constitutionalism and democracy. The requirement for consultation fosters dialogue, and thereby, minimize the scope of arbitrariness, let alone naked unilateralism. The significance of consultation is completely discarded by the judgment of the Constitution Bench.

Consequential Implication for Democracy

Finally, the Constitution Bench’s judgment in upholding the withdrawal of special status to J&K under Article 370 would accelerate the democratic backsliding. Bypassing of the political process through a naked display of unilateralism, anchored in brute majoritarianism will diminish rather than enrich democracy. The impact on democracy is an ideal test for judging the constitutionality of political decisions as well as the judgment of the Constitutional Court. The decision to withdraw special status to J&K through brazen acts of unilateralism and circumvention of procedure contemplated in the Constitution, and its affirmation by the unanimous judgment of the Constitution Bench of the Supreme Court, far from strengthening democracy, will erode it. In the process, The Supreme Court lost sight of the fact that constitutionalism is much more than mere constitutionality of the act/order challenged before it. The Supreme Court, in its epochal judgment in historic Kesavananda Bharati, upheld the 24th amendment in its entirety and 25th amendment substantially, and yet, created a watershed moment for constitutionalism through the enunciation of the doctrine of basic structure. Thus, the portentous import of the judgment for federalism, constitutionalism, and democracy is too glaring to be glossed over.

(Author: Vijay Kumar senior advocate, Supreme Court of India; the author of “The Theory of Basic Structure: saviour of the Constitution and Democracy”)

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