Guest Post: The Supreme Court’s Article 370 Judgment- VII: Explaining Incoherence

[This is a guest post by Ashwani Kumar Singh.]

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In an earlier post, I critiqued the Article 370 Judgment and argued that Article 370(3) recognised the constituent power of Jammu and Kashmir, which did not cease to exist on the dissolution of the Constituent Assembly of the State. In this post, I dissect the partial invalidation of Constitutional Order 272, and attempt to understand – but not defend – the approach adopted by the Court, as constitutionally incoherent as it may be.

Timing the Review

When a constitutional court is required to determine the validity of an executive or legislative action, an obvious concern is how the executive/legislature (political organs) would respond to the judicial decision. Courts thus have to assess the cost of non-compliance for the political actors. A higher cost of non-compliance would compel the political actors to adhere to the judicial rulings. However, the political actors would be willing to take that risk in high-stakes moments (see Sergio Verdugo’s piece ‘How Judges Can Challenge Dictators and Get Away with It’, especially the introductory section). One could say that the courts – consciously or unconsciously – assess the strength of the political actors and the political value of the concerned issue.

It is no secret that the abrogation of Article 370 had been a long-time agenda of the ruling party. A lack of strong and unanimous opposition from other political parties did not help either. Most of the opposition political actors and parties were concerned with the restoration of statehood and other related issues i.e., the exercise of power under Article 3 of the Constitution. They did not identify strongly with the procedure for abrogation of Article 370 laid down in clause (3) of the provision. This is not to say that the absence of political allies relieved the Supreme Court of its constitutional responsibilities, though one wonders if the delay in hearing of the matter affected or influenced the judicial decision/approach. Despite the inconsistent and incomprehensible observations (see my previous post), the court does manage to save something for ‘itself’.

Further Observations on Constituent Power

Though the partial invalidation of Constitutional Order 272 did not have any effect – as others and I have discussed in the previous posts – on the validity of the abrogation order (Constitutional Order 273), it did achieve two things. First, the court – adhering to and strengthening the settled jurisprudence of implicit limitation on legislative power – stated that ‘Legislative Assembly cannot be equated to the Constituent Assembly’ (see Para 384 of the majority judgment). Second, the Court held that the Constitution can be amended only through the prescribed constitutional procedures, and such procedures cannot be bypassed. The Court noted, in para 390, ‘the consequence of permitting amendments through the circuitous manner would be disastrous’.

These are obvious and expected observations but nonetheless important, given the recent attacks on the basic structure doctrine. The Court elaborated on the functions of constituent assemblies and legislative assemblies. It further noted that a constituent assembly ‘has a free rein to frame a Constitution’ (see page 266 of the majority judgment). For the Supreme Court, a constituent assembly is an extra-constitutional institution. It is not constrained by the Constitution.

Thus, on one side, the Court held CO 272 as partially unconstitutional, because it modified ‘the essential character of the proviso (to Article 370(3)) by substituting a particular type or kind of body (the Constituent Assembly) with another type or kind entirely (the Legislative Assembly) (see page 266 of the majority judgment). But even as it did so, on the other, the Court identified ‘constitutional’ limitations on the Constituent Assembly of Jammu and Kashmir. For instance, the Court noted that the Constituent Assembly could ‘fill in the details and provide a pattern of governance’ consistent with the constitutional prescription but could not declare Jammu and Kashmir as an ‘independent sovereign country’. These two conclusions – modification of essential character of the proviso to Article 370(3) and limitations on the State Constituent Assembly – are conflicting. I am not arguing the State Constituent Assembly had unlimited constituent power. As also submitted by the petitioners, the Assembly had to exercise its constituent power in compliance with Article 1 of the Constitution. I am disputing the degree and kind of limitations that the Court has envisaged. It appears (to me) that if we were to accept such limitations, the State Constituent Assembly would have more in common with a legislative assembly and hardly anything in common with an institution exercising constituent power.

Concluding Remarks: Saving the Constitution but not Kashmir

The Court has ‘attempted’ to ensure that nothing from the judgment could affect the future review of constitutional amendments. It expressly identified the presence of asymmetric federalism. As Gautam has shown in a previous post, the Court arguably did not ‘grant the union carte blanche under Article 356’. The Union, he argues, cannot make ‘irreversible changes to the constitutional structure vis-a-vis the state’ under Article 356. Though the Court did leave the question relating to Article 3 open to the future, it did not abdicate its power to sit in review of such decisions. I emphasize these points not to praise the court, but to say that the primary issue was the non-compliance of the abrogation procedure laid down in Article 370(3), and the Court has let us down.