On Monday, the Supreme Court gave its imprimatur to Jammu and Kashmir’s changed position in the Indian Republic, a result of the abrogation of Article 370 on August 5, 2019. It upheld the decision to repeal J&K’s special status. In doing so, the five judge-bench headed by Chief Justice D Y Chandrachud clarified that Article 370 was intended as a “transitional” arrangement – the bench referred “to the placement of the Article in Part XXI of the Constitution which deals with temporary provisions”. The purpose of the Article, as Justice S K Kaul noted in his concurring judgment, “was to slowly bring Jammu and Kashmir on par with the other states of India”. At the same time, the bench also said that it could not sit in judgement “on whether the circumstances which led to the arrangement under Article 370 have ceased to exist”. This, as it rightly pointed out, “is a policy decision within the realm of the executive”.
The Court has also delineated the scope of the now-revoked “special status” of J&K: This never amounted to “internal sovereignty distinguishable from the powers and privileges enjoyed by other states”. The petitioners had argued that, as per Article 370(3), J&K’s special status could not be changed unless recommended by its Constituent Assembly. But the Court ruled that this Constituent Assembly was never intended to be a permanent body. It said that Articles 370 (3) and Articles 370(1) were “introduced for enhancing constitutional integration”. “The abrogation of Article 370 by the President in the exercise of the power under Article 370 (3) is a culmination of the process of integration,” the SC has ruled.
“Integration”, in fact, is a running theme in the verdict. The next steps, it has underlined — the directive to the Centre to give urgency to restoring statehood and to the Election Commission to conduct polls in J&K by September 30, 2024 — should be read as a part of this larger message. This emphasis on the resumption of the democratic processes in J&K should not be lost on the government. For the same reason, the erstwhile state’s major political parties, the PDP and National Conference, should shed their post-2019 defeatist approach and make their presence felt in J&K, post Article 370. They should recognise that the clock cannot be turned back. Monday’s verdict affirms J&K’s place in the country’s federal polity. The Court has, however, let itself down in its interpretation of Article 356, the lynchpin of federalism in India. The petitioners had questioned the bifurcation of J&K and its conversion into a Union Territory when Article 356 was in force. But the Court’s comments, that every decision and action “taken by the Union executive when the Article is in force is not subject to challenge” attenuates the gravity of the August 5, 2019 decision. The apex court’s words — at a time when the idea and practice of federalism is under stress — go against the spirit of its landmark verdict in the SR Bommai case. It hurts the checks and balances in Centre-state relations and, perhaps, the court will clarify or fine-tune this at a later stage.
