SC's 370 Verdict Comes Close, But Fails To Address Symmetric Federalism in J&K

To not discuss the arguably immutable characteristic of a constituent State in Indian federalism, on the basis of an unenforceable guarantee, unfortunately inflicts another deafening silence upon the readers of the judgment.

(Photo: Kamran Akhtar/ The Quint)

I have just finished my first reading of the 476-page judgment published by the Hon’ble Supreme Court of India on 11 December. It is quite a captivating read, with the Hon’ble Chief Justice of India spending considerable time and energy on providing a backdrop, building the narrative from a slow burn to a rapid crescendo of thrill, to then provide quite the drop as he arrives at his conclusions.

As much as a judgment warrants legal analysis, I cannot stop thinking that this deserves more of a book review, and I will request the readers to grant me that liberty. After all, it is no less than a thriller novel by the greatly celebrated William Thomas Harris III. I call this 'The Silence of the Lamps' –  also as a tribute to Lord Bryce who commented on the intensity of the darkness which surrounds society when the 'Lamps of Justice’ go out in the dark.

The rather scholarly and meticulous setup of the judgment, even in simply stating the facts and issues, performs a function by correctly assuming that this judgment will not only settle a lis but serve as a marker in the history of putting an end to decades of disputes and conflicts.

It is here that I find my first disagreement with how the context is set up in the narrative for its readers.

A Tale of Two Kashmirs: On the Ground and in Parliamentary Procedure

Between 5 and 9 August 2019, the seat of the drama may have been the Indian Parliament, persuaded by the writings received from the Office of the Governor of Jammu and Kashmir, but there was remarkable tension and action on the ground in J&K, with a communications and movement blockade of an unfathomable scale in the pre-Covid era.

This action-packed element of the narrative unfortunately finds no mention in the final document.

Some would argue that the prequel was published in the Anuradha Bhasin pronouncement, but this sequel steers so far clear from the origin story that readers are left to wonder whether it’s a multiverse of sorts.

A story of two Kashmirs – so disconnected and unknown to each other – that they are reasonably capable of isolated understanding and analysis.

While most of the questions of law do not require the judgment to delve into more of this political sphere, so the authors’ discretion in that regard is understandable, one aspect certainly warranted some analysis of the manner in which symmetry was inflicted on federalism in August 2019.

And that is, the idea of the temporary nature of Article 370, and against what threshold is one to test the degree of integration so as to adjudicate on the "desirability” and "necessity” tests of judicial review (SR Bommai) for determining that the temporary provision has outlived its purpose.

The Complex Issue of J&K’s Statehood, Bypassed

Perhaps, as difficult a task as that may have been, the authors needed to indulge in it to stay true to the plot’s narrative. It may have provided more succour to the readers grieving from the plot’s outcome, or maybe, sown the seeds for a warranted sequel.

There is always scope though for some fan fiction to outdo the original. Some call it review, others call it political discourse.

The other element of the entire exercise which fascinates me is how the authors call upon the readers to identify the issues – the major plot points, in a manner that fuses more than one distinct question with another.

While the complexity in framing the issues usually makes for a more gruelling and engaging read, it also allows the authors to hide some silences and plot holes in between the many layers of ideas that they weave for the readers. This may not always be deliberate, but is certainly always decisive.

Issue 'h’ framed by the majority opinion authored by the Hon’ble CJI, reads: “Whether during the tenure of a Proclamation under Article 356 and when the Legislative Assembly of the State is either dissolved or is in suspended animation the status of the State of Jammu and Kashmir as a State under Article 1(3)(a) of the Constitution and its conversion into a Union Territory under Article 1(3)(b) constitutes a valid exercise of power.”

This issue is like a complex hand-crafted layered pastry with many thinly-veiled elements composed one on top of the other. However, when consumed as a whole, the takeaway taste and flavour is this: Whether Jammu and Kashmir could be robbed of its statehood by turning it into a union territory?

A guiding light to answer this question may be found in the following words of J Khanna: “Union Territories are normally geographically small territories, or may be created for aberrant reasons or causes. Conversion of a State into a Union Territory has grave consequences, amongst others, it denies the citizens of the State an elected state government and impinges on federalism. Conversion/creation of a Union Territory from a State has to be justified by giving very strong and cogent grounds. It must be in strict compliance with Article 3 of the Constitution of India."

Yet, the judgment refuses to delve into this analysis and suspends the issue raised by one set of litigators, in view of a future promise made by its adversarial litigator.

Towards a Future of Asymmetric Statehood?

The discretion to not answer this issue squarely and categorically, significantly undermines the good work of the authors in large parts of the judgment, as it sidelines perhaps one of the primary grievances of the Petitioners, the underbelly of which meanders into the arguments and reasoning of various other issues raised and answered.

To not discuss the arguably immutable characteristic of a constituent State in Indian federalism, on the basis of an unenforceable guarantee, unfortunately inflicts another deafening silence upon the readers of the judgment.

Some wish to call it the increasing influence of the executive court over the constitutional one, while some cheekily see it as an enforced disappearance of seminal questions of law.

On my first reading, I found these gaps or silences in the judgment to be more telling than the various issues which it does dive deep into. I am sure many scholars will break those down over the next few weeks and months, fleshing out the jurisprudential impact of it all.

In the meantime, symmetric federalism is likely to spread its wings and soar in the valley, with the ushering in of elections to the Assembly by September 2024.

What will the people of J&K make of such elections to the Assembly of the Union Territory, when the promise of full statehood looms over their socio-political aspirations? How temporary is this process of integration into symmetric statehood going to be, and how long will the wait be for public safety in J&K to replace the J&K Public Safety Act? I am confident all readers await these sequels with great enthusiasm.

(Soutik Banerjee is a Delhi-based lawyer. This is an opinion piece and the views expressed are the author's own, The Quint neither endorses nor is responsible for them.)