Guest Post: The Supreme Court’s Article 370 Judgment – II: On the Constituent Power of Jammu and Kashmir

[This is a guest post by Ashwani Singh.]

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On 11 Dec (2023), the Supreme Court ruled on multiple issues relating to Article 370 and the relationship between the Union and the State of Jammu and Kashmir. The Court unanimously upheld the validity of Constitutional Order 273 (the ‘abrogation order’) issued by the President to abrogate Article 370. The Court found Constitutional Order 272 – to the extent that it amended Article 370(3) – ultra vires the procedure laid down in Article 370(3). However, this finding did not have any effect on the validity of the abrogation order because the President, the court held, could unilaterally modify or abrogate Article 370. In essence, the Union Govt need not even have made the effort of adhering to the formal principle of “double consent” under Article 370, as the role of the state of Jammu and Kashmir in abrogating Article 370 could be simply dispsned with.

While the judgment also dealt with other issues relating to statehood and emergency, in this post, I respond to the arguments and observations made on the nature of Article 370 and the procedure for its modification/abrogation. I argue that though it was a temporary provision which might or might not have become permanent upon the dissolution of the State Constituent Assembly, its abrogation was contingent on the recommendation of a body exercising constituent power of Jammu and Kashmir (which may or may not be a “Constituent Assembly”). What Article 370(3) did was recognise the constituent power of Jammu and Kashmir. The constituent power could not possibly have ceased to exist on the dissolution of the State Constituent Assembly.

Article 370: Permanent or Temporary? Does it matter?

A unilateral wish of the Constituent Assembly of India to bring the State of Jammu and Kashmir on an equivalent level to that of other states did not entitle the Union to define, at its discretion, its relationship with the State. Did the constitutional framers hope that Article 370 at some point in the future would be abrogated? Yes, they did: that is not disputed. However, the realisation of that hope or wish or intention, whatever we may call it, was contingent on the recommendation of the Constituent Assembly of the State, as set out under Article 370(3). The mere categorisation of Article 370 as a temporary provision did not mean that the Union had an obligation and power to abrogate it by any means necessary. It arguably imposed a duty on the Union to work towards constitutional integration, but the imposition of such a duty did not entitle the Union to override the constitutional procedures laid in Article 370. One such procedure was for the modification or abrogation of Article 370 itself, which could not have been achieved without the recommendation of the Constituent Assembly of the State.

The Supreme Court completely ignored these aspects of Article 370. The Court relied primarily on the marginal note to establish the temporary nature of Article 370. The majority judgment explained how the provisions of Part XXI are/were temporary and transitional provisions, either based on a time limit or the occurrence of an event. It appears that the Court, somehow, believed a finding of the non-temporary nature of Article 370 was equivalent to saying ‘the integration of Jammu and Kashmir with India was temporary’ or incomplete (see paras 321-322 of the majority judgment). This is bizarre, given that the Court recognised asymmetric federalism under the Constitution, citing examples of special arrangements in Article 371A-371J. Consequently, there is nothing untoward about the conclusion that the temporary provision (Article 370) turned into a “special provision” upon the non-occurrence of the event that – if occurred – would have possibly brought an end to Article 370 (that is, the recommendation of the Constituent Assembly of J&K). It should also be noted that though the members of the Constituent Assembly hoped for the abrogation of the provision, it is equally likely that they foresaw other possibilities. This may be inferred from the fact that clause (3) not only prescribed (a possibility) for the abrogation of Article 370 but also its continuation with such modifications and exceptions as recommended.

The Constituent Assembly of the State, and the Impact of its Dissolution on Article 370

To recall, unlike clause 1 of Article 370, clause 3 of the provision did not just require ‘concurrence’ or ‘consultation, it required a ‘recommendation.’ The majority judgment also noted the use of these different terms and their meanings (see para 317(d)). Further, Article 370(3) required that such a recommendation must come from the Constituent Assembly – and not the legislative assembly, or the Government of the State. The higher authority of the State Constituent Assembly could be further inferred from clause 2 of the provision, which stated:

“If the concurrence of the Government of the State referred to in paragraph (ii) of sub clause (b) of clause (1) or in the second proviso to sub-clause (d) of that clause be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon.”

N G Ayyangar also stated in the constituent assembly debates – which the majority judgment cited in para 267 – that ‘this clause [clause 2 of Article 370] provides that that concurrence should be placed before the Constituent Assembly when it meets and the Constituent Assembly may take whatever decisions it likes on those matters’. It is then incomprehensible how the Court concluded that the requirement of obtaining the consent of the State Constituent Assembly was ‘only’ a message of goodwill that the members of the Constituent Assembly (of India) wanted to convey (see para 277 of the majority judgment). The Court also noted that the purpose of Article 370(2) was ‘to subject the exercise of power by the emergency administration to the democratic will of the people exercised through the members of the Constituent Assembly’. How could this just be a message of goodwill?

In para 346, the court noted that the recommendations of the State Constituent Assembly were not binding, and the Union had to only ‘earnestly consider’ such recommendations. The court reached this conclusion by drawing a comparison between the procedure laid down in Article 370(3) and the procedure for the ratification of the Constitution (of India) by the Indian states. This is not an ideal comparison. Article 370 was not a tool for the ratification of the Constitution. The ratification had already been completed with the proclamation made by Yuvraj Karan Singh on 25 Nov 1949. Article 370 was the bedrock for establishing a constitutional relationship between the Union and the State of Jammu and Kashmir. The State Constituent Assembly did not have the power to nullify the accession of the State. But it did have the power to influence and define the relationship between the Union and the State. If the members of the Constituent Assembly indeed wanted to give such symbolic effect to the recommendations of the State Constituent Assembly, they would have likely used ‘consultation’ or ‘concurrence’ as they did for clause (1).

Finally, the dissolution of the State Constituent Assembly did not cause the destruction of the constituent power of Jammu and Kashmir. The dissolution meant that the provision was no longer temporary in nature. To be clear, I am not arguing that Article 370 became unamendable. The President could still issue a notification to abrogate or modify Article 370 provided an institution exercising constituent power of Jammu and Kashmir made a recommendation to that effect. The Supreme Court did not consider this possibility; probably because it has never faced the issue of emergence of constituent power before; perhaps it believed that that would have opened a pandora’s box. But in that event, the Court could have still found CO 273 ultra vires the procedure laid down in clause (3), while keeping the issue of emergence of constituent power open for the future.

Concluding Remarks

All said and done, the Court could not have (or so I submit) adopted a worse approach to determine the constitutionality of the abrogation order. The judicial validation of the abrogation order should be seen as the Court crowning the executive with a power far greater than what the executive itself could have imagined, given that it did not even claim such a power for itself, when it went about abrogating Article 370. One would hardly be surprised if Lord Atkin rose from his grave to recite his famous words – ‘more executive-minded than the executive’ – albeit this time for the House of Indian Lords.

Guest Post: An Executive Court and a Judicial Committee: The Supreme Court’s Decisions on the Internet Restrictions in Kashmir

[This is a guest post by Chintan Chandrachud, on the Supreme Court’s decision in the 4G Internet case. Mihir’s analysis of the judgment on this blog can be found here.]

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On 11 May, the Supreme Court issued its decision in a case challenging the restriction on mobile internet speed in Jammu and Kashmir. The Court neither decided whether the restriction was unconstitutional nor issued a remedy. Instead, it referred the matter to a three member special committee. The Supreme Court’s decision on 11 May was a sequel to its decision of 10 January 2020. At 149 pages collectively, the Court’s decisions are relatively brief by its standards. However, they are far more revealing about the role of the Court than many other decisions of greater length and complexity.

On 4 August 2019, mobile phone networks, internet connectivity and landlines were disabled in large parts of Jammu and Kashmir, in anticipation of the constitutional changes that would follow. (As is well known, these “virtual” restrictions – frequently described as the “communications lockdown” – were also accompanied by restrictions on physical movement, with several political leaders being placed under house arrest.) The communications lockdown was imposed under the Temporary Suspension of Telecom Services Rules (“Suspension Rules”), which enable the central or state government to suspend telecom services when there is a public emergency or a risk to public safety. The Suspension Rules included a mechanism for solitary review (rather than periodic review) of suspension orders. A committee of three bureaucrats would meet once, within five days of the relevant suspension order, to determine if it was appropriate.

In its decision of 10 January, the Court addressed the question of whether the suspension orders that had been passed since 4 August 2019 – which were the pieces of the puzzle constituting the communications lockdown – were unconstitutional. In arriving at its decision, the Court prescribed a series of important principles. Even though the Suspension Rules did not specifically require their publication, the Court held that suspension orders should be published going forward. It replaced the solitary review mechanism with a periodic review mechanism – in which the review committee would be required to meet every seven days to assess the appropriateness of suspension orders. The Court also concluded that blanket suspension orders (either in terms of the duration of time for which they applied or in terms of their geographic application) would not be constitutionally permissible. However, the Supreme Court failed to decide the most important issue – whether the suspension orders were constitutionally invalid and should be set aside. This was nothing short of an abdication of responsibility. It is no coincidence that the right that guarantees direct access to the Supreme Court when fundamental rights are violated refers to “remedies for enforcement of rights”. The Court may have recognised the rights at stake, but failed to enforce them and award a remedy.

Following the Court’s decision, a review committee of three state-level bureaucrats met periodically to consider fresh suspension orders that gradually narrowed the scope of the lockdown. Fixed-line internet connectivity was restored (first for essential services and hospitals, later for software companies, and ultimately more widely). Access to social media websites was gradually reinstated. However, elements of the thirteen suspension orders passed between the Supreme Court’s decisions of January and May seemed vulnerable to constitutional scrutiny. For example, between 14 January and 4 March, the suspension orders imposed a “white-listing” regime, under which only specifically white-listed websites could be accessed through the internet. This resulted in some arbitrary inclusions and exclusions, and an abandonment of the basic principles of net neutrality. In addition, mobile internet has continued to remain restricted to 2G speeds, well below the 4G speeds that would otherwise be available.

The restriction on speed of mobile internet was addressed in the Supreme Court’s judgment of 11 May. It is easy to typecast this as a narrow restriction (slow internet versus fast internet). Examined more closely, however, this is a question of access rather than speed. Imagine using applications designed for 2020 on a mobile internet connection that is in healthy competition with dial-up internet of the 1990s. The constitutional challenge was framed with a focus on the impact of the restriction. It was argued that the restriction hindered doctors and the general public from accessing information on COVID-19, and students from accessing educational material and literature when classes in physical classrooms were not taking place. The government argued that the restriction was in the interests of national security, and was directed towards reducing misuse of the internet by terrorists and militants.

In what was virtually an action replay of its decision in January, the Supreme Court refused to determine the constitutional validity of the restriction. Even if the decision of 10 January were to be justified on the basis that the Court established a new periodic review mechanism which would consider the appropriateness of suspension orders going forward, that rationale was now no longer available. The restriction that was challenged was a product of the new review mechanism, and the Court was tasked with determining if it was unconstitutional. Instead of doing so, the Court set up yet another review committee – this time consisting of a combination of national and state level bureaucrats – to “examine the contentions” of the parties and determine whether the restriction is appropriate. To be sure, the Court did not ask the committee to report back to it with its analysis. The petitions have been disposed of, and it is the committee that will be deciding the propriety of the restriction. To state the obvious, the Court has delegated its sacrosanct obligation of determining the constitutionality of executive action to the executive.

Equally disconcerting as the Supreme Court’s delegation of authority, however, is its assumption of responsibility. The Court opens its judgments of 10 January and 11 May with the surprising observation that it is the Court’s role to strike a “balance” between “liberty and security”. It is easy to understand why any Court would veer towards security over liberty when the question is framed in this way. However, this framing is at odds with the Court’s role as an independent decision-maker. Neither proportionality nor reasonableness review requires the Court to be saddled with the responsibility of “striking a balance” between liberty and security. That is plainly the job of a democratically elected government. The Court’s role is simply to determine, applying the principles articulated in its 10 January decision, whether the balance that has already been struck by the government is constitutionally permissible.

If the Supreme Court is once again called upon to determine the constitutionality of the restrictions on communication, it should not only take back the adjudicative mantle, but also hand over the executive one.

Guest Post: Jammu and Kashmir’s New Domicile Reservation Policy – Some Constitutional Concerns

[This is a Guest Post by Varun Kannan].

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On 31^st March, the Ministry of Home Affairs notified the Jammu and Kashmir Reorganization (Adaptation of State Laws) Order, 2020 (‘the Adaptation Order’). This executive order has, inter alia, created a new domicile reservation policy for government jobs in the Union Territories of Jammu and Kashmir and Ladakh.

After explaining the procedure adopted for enacting this new domicile reservation policy, I shall raise certain constitutional concerns with respect to this procedure. Specifically with respect to the newly constituted Union Territory of Jammu and Kashmir, I shall argue that the conversion of the erstwhile State into a Union Territory, coupled with the continued imposition of President’s Rule has given the Centre Government a carte blache to enact such policies without any pre-legislative consultation.

The Adaptation Order and the new domicile policy

Through the Adaptation Order notified by the Union Home Ministry, a total of 127 State laws applicable to the Union Territories of Jammu and Kashmir and Ladakh have been amended or repealed. The State legislation which has been amended to give effect to the new domicile policy is the Jammu and Kashmir Civil Services (Decentralization and Recruitment) Act, 2010. The Adaptation Order has inserted Section 3A to this Act, which prescribes new eligibility criteria to be deemed as a ‘domicile resident’ of Jammu & Kashmir. The new eligibility criteria inter alia includes requirements such as (i) the person should have resided in Jammu & Kashmir or Ladakh for a mimumum period of 15 years; or ii) the person should have studied for a period of seven years and appeared for Class 10^th/12^th Board Examinations through an educational institution located in the Union Territory.

After the notification of the Adaptation Order, there was an uproar over the ‘inadequacy’ of the new domicile reservation policy, as it was applicable only to a limited category of government jobs. The Union Home Ministry then notified a Second Adaptation Order on 3^rd April, which took into account this stringent criticism and extended the applicability of the new domicile reservation policy to all government posts.

In the Adaptation Order, it is stated that this Order derives legal force by virtue of Section 96 of the Jammu and Kashmir Reorganization Act, 2019 (‘the Reorganization Act’). To recall, the Reorganization Act has bifurcated the erstwhile State of Jammu and Kashmir into two separate Union Territories of Jammu & Kashmir and Ladakh respectively. This statute was introduced simultaneously with the Presidential Order and the Statutory Resolution which amended Article 370 of the Indian Constitution, on 5^th August 2019. To understand the nature and purpose of the Adaptation Order, it is instructive to refer to Section 96 of the Reorganization Act. Section 96 falls under Part XIV of the Reorganization Act, which consists of “Legal and miscellaneous provisions”. It states as follows:

For the purpose of facilitating the application in relation to the successor Union Territories, of any law made before the appointed day, as detailed in Fifth Schedule, the Central Government may, before the expiration of one year from that day, by order, make such adaptations and modifications of the law, whether by way of repeal or amendment, as may be necessary or expedient, and thereupon every such law shall have effect subject to the adaptations and modifications so made until altered, repealed or amended by a competent Legislature or other competent authority. (emphasis supplied).

 

The Fifth Schedule referred to above consists of the Central and State Laws that are applicable in the newly formed Union Territories of Jammu and Kashmir and Ladakh. One striking aspect of Section 96 is that it confers the Central Government the power to amend or repeal any Central or State law applicable in the Union Territories, if it considers it to be ‘necessary and expedient’. This power is available for a period of one year from the appointed date i.e. the date on which the Reorganization Act came into force, which was fixed as 31^st October 2019. Now, such a provision enabling the adaptation and modification of existing laws by the Executive is not unique to this Reorganization Act. A similar provision is also present in the Section 101 of the Andhra Pradesh Reorganization Act, 2014, which confers the appropriate government with similar powers of adaptation and modification.

Now an important question arises with respect to the scope and ambit of the power of ‘adaptation and modification’ conferred by Section 96. The question that arises here is whether the power conferred by Section 96 is limited to making adaptations and modifications solely for purposes of procedural and administrative efficiency, and whether it extends to making policy alterations, such as the new domicile policy.

The scope and ambit of the power of ‘adaptation and modification’.

From a plain reading of Section 96, it is evident that the purpose of this provision is to adapt or modify any law for the purpose of facilitating its application to the successor Union Territories, if the Central Government feels that it is necessary and expedient to do so. This is further qualified by a one-year time limit, which means that adaptations and modifications can be made for a period of one year from the date on which the Reorganization Act has come into force.

The presence of a one-year time limit and the words “for the purpose of facilitating the application in relation to the successor Union Territories, of any law” indicates that such adaptations and modifications made through executive orders can be undertaken only for procedural and administrative matters connected with the bifurcation and the conversion of the erstwhile State into a Union Territory. This also implies that policy changes made through executive orders which are unconnected to this process of facilitating the application of existing laws shall be beyond the ambit of Section 96. This interpretation is also in line with the Supreme Court’s decision in the landmark In Re: The Delhi Laws Act case, where it was held that the Legislature cannot delegate matters of legislative policy to the Executive.

Keeping in mind the wording of Section 96 and the In Re: Delhi Laws Act decision, it can be argued that Section 96 cannot be used to make any substantive policy changes by amending existing laws; and it is restricted to matters of procedure and administration that are necessary for facilitating the smooth application of existing laws to the newly constituted Union Territories. Hence, the question that arises here is whether the Adaptation Order, insofar as it amends an existing law to create a new domicile policy, is ultra vires Section 96, and whether it goes beyond the ambit of the parent statute. At first glance, the answer may appear to be in the affirmative. However, there are other provisions in the Reorganization Act and the Indian Constitution, which may be invoked as possible justifications.

A possible constitutional justification?

To address this issue, it is significant to note that as per the Reorganization Act, the Union Territory of Ladakh does not have a Legislature, and is to be administered by a Lieutenant Governor, acting on behalf of the President. On the other hand, the Union Territory of Jammu and Kashmir follows a model similar to Pondicherry and Delhi, and is envisaged to have a Legislature and a Council of Ministers headed by the Chief Minister. As the Union Territory of Ladakh does not have a Legislature and is to be administered solely through the Lieutenant Governor, the Adaption Order may be justified by referring to Section 58 of the Reorganization Act, and by invoking Article 240 of the Indian Constitution.

Section 58 makes Article 239 and Article 240 applicable to the Union Territory of Ladakh. Article 240 accordingly states that for Union Territories that fall within the ambit of Article 239 (such as Pondicherry and now Ladakh), any Regulation made by the President which amends or repeals any applicable law shall have the same force as an Act of Parliament. Hence, with respect to the Union Territory of Ladakh, the Adaption Order can be considered as a Regulation made by the President under Article 240, and can be justified on these grounds. However, with respect to the Union Territory of Jammu and Kashmir, the position is significantly different.

Unlike Ladakh, Article 240 is inapplicable to the Union Territory of Jammu and Kashmir. This is by virtue of Section 13 of the Reorganization Act and the proviso to clause (1) of Article 240. Section 13 states that the provisions contained in Article 239A of the Constitution as applicable to Pondicherry shall also be applicable to the Union Territory of Jammu & Kashmir. Furthermore, the proviso to Article 240(1) states that if a body is created under Article 239A to function as the Legislature for the Union Territories enlisted under Article 239A (which now includes Pondicherry and Jammu and Kashmir), then until the first meeting of the legislature, the President may make Regulations for that Union Territory.

This may be used as a justification by the Central Government in a possible constitutional challenge, as the Union Territory of Jammu and Kashmir is currently under President’s rule, and no Legislative Assembly has been created after the passage of the Reorganization Act. It may contend that even if the Adaptation Order is ultra vires the ambit of Section 96 of the Reorganization Act, it is saved by Article 239A and the proviso to Article 240(1). Another justification that the Central Government may give is that following the 5^th August statutory resolution, the concept of ‘permanent resident’ as given in the Jammu & Kashmir Constitution has ceased to exist.

This is because following the 5^th August statutory resolution, the Jammu & Kashmir Constitution (which defined a permanent resident under Article 6) has been done away with. Along with this, even Article 35A of the Indian Constitution, which empowered the State Legislature to define the “permanent residents” of the erstwhile State, was abrogated. This abrogation of the concept of “permanent resident”, it can be argued, has led to a vacuum in the domicile eligibility criteria applicable in the newly constituted Union Territories.

Imposition of President’s rule and conversion into Union Territories: A larger constitutional question

Keeping this possible justification aside, there is a larger constitutional question that we must address here. As the Union Territory of Jammu and Kashmir is envisaged to have a Legislative Assembly, Article 239A read with the proviso to Article 240(1) permits the issuance or executive orders by the President (i.e. the Central Government) only until the first meeting of the Legislative Assembly, after fresh elections are held. It is pertinent to note here that Jammu & Kashmir was under President’s rule prior to its conversion to a Union Territory, and has continued to remain in President’s rule even after 31^st October 2019 (when the Reorganization Act came into force). Article 356 of the Indian Constitution has continued to hold fort in Jammu and Kashmir since 19^th December 2018, and there is no information on any proposal to have fresh elections in the near future. The continued imposition of President’s rule and the conversion of the State into two separate Union Territories has given the Central Government a carte blanche to indiscriminately take advantage of the statutory and constitutional provisions referred to above, and rule by executive decree.

The rationale behind the Central Government wanting this unbridled power can be highlighted by referring to the Supreme Court’s decision in NCT of Delhi v. Union of India. In its decision, the Supreme Court held that although Delhi is a Union Territory and akin to a quasi-State, the actions of an elected government and an elected Legislature shall bind the Lieutenant Governor – for all matters that are within its legislative domain. Although this decision was based on an interpretation of Article 239AA of the Constitution, it applies squarely to Jammu & Kashmir – as akin to Delhi, Jammu and Kashmir is envisaged to have a Legislature despite being a Union Territory. This implies that for all matters within its legislative domain, the Legislature of the Union territory of Jammu and Kashmir shall stand supreme, and bind the Lieutenant Governor and Central Government. Hence, if fresh elections had been held and a Legislative Assembly had been constituted, the Home Ministry could not have indiscriminately taken the benefit of 239A, the proviso to Article 240(1), and Section 96 of the Reorganization Act, to bring about radical changes such as the new domicile policy.

As pointed out above, the new domicile policy had been criticized by leaders across political parties, who claim that it is inadequate, and only granted domicile reservation for a limited category of government jobs. Fearing major backlash, the Home Ministry notified another Adaptation Order and amended the law once again, to bring within its ambit all government posts. This is exactly what exacerbates the problem further. If there was an elected Legislature in the first place, such a domicile policy could only have been passed through legislation, after a debate and discussions involving members from across party lines. The conversion to Union Territories coupled with the imposition of President’s rule has prevented any such discussion from taking place, and has granted the Central Government a carte blanche to make policy prescriptions without any pre-legislative consultation process.

While the Home Ministry is free to contend that once there is an elected legislature, the Legislature may further amend or repeal the changes after discussion, this shall only buttress my primary point – that as the presence of a Legislature is envisaged, such legislative policy prescriptions should be left solely within its domain. This only culminates in one common end – which is the need for a greater legal and judicial conversation on whether it is within the spirit of the constitutional framework to indefinitely impose and repeatedly extend President’s rule under Article 356, and rule virtually by executive decree. Until this status quo remains, there shall only be rule by law in Jammu & Kashmir, and not rule of law.

The Kashmir Internet Ban: “Restoration”, White-Listing, and Proportionality

On January 10th – as we discussed on this blog – the Supreme Court handed down its judgment on the internet shut-down in Kashmir (it bears repeating that this is the longest continuing internet shut-down in any democratic country). The Supreme Court’s judgment had two parts: a statement of the law and an application of the law to the facts of the case. On the first issue, the Supreme Court held that accessing information through the internet was a fundamental right, and the principle of proportionality applied to adjudicating the constitutional validity of internet shut-downs (which, inter alia, requires the government to adopt the ‘least restrictive’ method when it comes to restricting rights). On the second issue, the Court directed the “Review Committee” (a government body), constituted under the Telecom Suspension Rules of 2017, to review the situation on a weekly basis.

In response to the judgment of the Court, the Jammu & Kashmir government has passed three orders purporting to partially relax the internet shut-down. In this post, I will argue that a reading of the government’s orders reveals that (a) they are in breach of the legal principles laid down in the Supreme Court’s judgment, and deserve to be challenged; and (b) these orders reveal that the State’s own case before the Supreme Court was based on flawed premises – something that has important consequences for challenges to internet shut-downs, going forward.

At the outset, it is important to note that this is a critique of the government’s orders on their own terms; the larger points – that a five-month long internet shut-down is inherently disproportionate, must be lifted at the earliest, and that the Supreme Court’s judgment unfortunately did not grant relief to the Kashmiris – remains.

The Orders

On 14th January – four days after the Supreme Court’s judgment – the J&K government passed an order stating that cross-border terrorist elements were using the internet to communicate and spread propaganda, which could cause large-scale violence. The government directed, inter alia, for provisions of broadband services to institutions providing essential services, 2G mobile connectivity in certain districts, and the installation of internet firewalls and a set of “white-listed websites” that could be accessed by internet users. Access to social media was specifically prohibited. Subsequently, on 18th January,  second order was passed – this time in exercise of review powers under the Telecom Suspension Rules. This order stated that there was had been no adverse impact after the partial restoration, but reiterated that the internet could be used for incitement, “rumour mongering”, and by anti-national elements. It directed restoration of Voice and SMS facilities on pre-paid SIMS, and extended 2G internet to a few more districts. In addition, it provided a specific list of 153 “white-listed” websites, from Blue Dart to Zomato to Amazon Prime – which could be accessed.

In accordance with the Supreme Court’s judgment, this had to be reviewed on a weekly basis. This, consequently, led to the third order, passed yesterday, which reiterated the twin points of “no adverse impact” and “apprehension of misuse.” This order basically expanded the set of white-listed websites to 301 (adding news websites such as Scroll and The Wire), continued the prohibition on social media, and clarified that “white-listing” was a continuous process.

White-Listing and Proportionality 

The three orders make it clear that the government – in conjunction with Internet Service Providers – has the technological capacity to allow selective access to the Internet (contrary to what the Government’s lawyers argued in court; see this analysis by the Internet Freedom Foundation). Independent of the overall constitutional arguments (indicated above), a very simple conclusion follows from this: that internet shut-downs are inherently disproportionate, because a less restrictive alternative exists at all times. If the government’s entire justification for internet shut-downs is that the internet is being used for “rumour mongering” and “incitement to violence”, it is clear that blocking access to all of the internet – a large swathe of which cannot possibly be used in that fashion – fails the ‘least restrictive alternative’ prong of the proportionality standard. In future, therefore, internet shut-downs should be immediately struck down by Courts without any ado: the government itself has given us evidence that they are disproportionate.

This is not, however, a defence of white-listing: in fact, the consequences of the government’s orders go further, as they demonstrate that there exist alternatives that are less restrictive even than white-listing. The government can – it is clear – block access to specific websites (the repeated references to social media show that this is so). This would be a method of ‘black-listing’ – where access to the internet is allowed except for specified websites.

The conceptual difference between white-listing and black-listing can be summed up in very simple terms. In white-listing, the default is no access to the internet, except what the government allows. In black-listing, the default is access to the internet, except what the government prohibits. The first is a case of ‘everything is prohibited, unless specifically allowed.’ The second is a case of ‘everything is allowed, unless specifically prohibited.’

This is where the Supreme Court’s other finding – that accessing information through the internet is a fundamental right – becomes crucial. Because if a constitutional democracy means anything, it means that the default situation is – and must be – the existence of a fundamental right, and it is the limitations that must be the exceptions. White-listing reverses that fundamental proposition – in the words of K.G. Kannabiran, it makes the restrictions “fundamental”, instead of the right. Black-listing, on the other hand, not only preserves the fundamental character of the right, but also – by providing a clear category of what is forbidden (instead of an amorphous “everything”), allows citizens to challenge that before a court (another fundamental aspect of the rule of law).

This also makes intuitive sense. For example, if an individual wants to read science fiction on Strange Horizons, why should there be a need to special permission from the government, in the absence of which, the website cannot be accessed? On the other hand, if the government has credible information that Strange Horizons is inciting people to violence, then it can block access to the website – and, if necessary, will be required to justify it in Court. White-listing, on the other hand, is impossible to effectively challenge, because it brings us right back into the domain of generic statements about the “internet” being used to incite violence and spread propaganda – the kinds of arguments that the government made in the Internet Shut-Down case.

White-listing, therefore, is no effective “restoration”, as it continues to leave the fundamental right to communicate over the internet entirely at the Government’s discretion: exactly the Emergency-style argument that the Government’s lawyers tried to push before the Supreme Court, and were roundly rebuffed.

Conclusion 

As indicated at the beginning of the post, this is not an argument that justifies white-listing (or even blacklisting). The continuing ban on social media on vague and specious grounds of “rumour mongering” remains disproportionate (as pointed out many times, there is actually no evidence showing internet shut-downs combat “rumour-mongering”, and indeed, evidence points the other way). The constitutional case against internet restrictions remains, and will continue to be made – before courts, and elsewhere.

What this post shows, however, is that the J&K’s actions after the Supreme Court’s judgment are effectively subverting the Court’s findings, and also demonstrate severe internal inconsistencies between what the government claims and what it actually does. The Supreme Court made it clear that access to information through the internet was a fundamental right, and restrictions would have to meet the test of proportionality. White-listing reverses that principle, and effectively makes restricting internet access a fundamental right of the government, with the burden upon the people to establish why they should be allowed to access selected parts of the internet. This reversal of the citizen-State relationship is unconstitutional, and will hopefully be recognised as such.

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(Disclaimer: The author was one of the lawyers representing the Petitioners in the internet shut-down challenge.)

 

Guest Post: The Kashmir Internet Ban – What’s at Stake

[This is a guest post by Suhrith Parthasarathy.]

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A three-judge bench of the Supreme Court has heard oral arguments and reserved its judgment in Anuradha Bhasin v. Union of India and Ghulam Nabi Azad v. Union of India, in which the petitioners have impugned, among other things, the ongoing shutdown of the Internet in the Kashmir Valley. The arguments raised in these petitions touch upon questions critical to the functioning of India’s democracy. This post is an effort at expounding some of the issues at stake in the case.

Facts

Sometime on August 4, on the eve of the Union government’s decision to issue presidential orders divesting the state of Jammu and Kashmir of its autonomy, a complete blockade on information and communication services was placed in the region. Since then, a few of these restrictions have been lifted, but access to the Internet in the Kashmir Valley remains elusive. As the Petitioners have pointed out, while landlines and post-paid mobile phone voice calls are now functioning, only a miniscule proportion of the population in the region have access to these services. Post-paid mobile phone SMSes remain blocked and so too pre-paid mobile phone voice calls and prepaid mobile phone SMSes. Messaging services, as we’re only too aware now, are critical to carrying out various forms of economic transactions. They are, in many ways, an essential service. Even according to the government’s own response, out of a total of nearly 60 lakh mobile phones, only 20 lakh phones are working and even on those phones SMSes remain wholly blocked. What is more, access to the Internet in the Kashmir Valley continues to be prohibited, despite the critical role that the web plays today in various kinds of economic, social and educational activities.

These orders blocking communication services, Ms. Bhasin and Mr. Azad have argued, have had a damaging effect on a number of fundamental rights. In Ms. Bhasin’s case, the newspaper she edits, The Kashmir Times, could not be distributed on 5 August and went entirely unpublished between 6 August and 11 October. Today, owing to the absence of the Internet, and the barriers placed on journalists seeking to do their job, only a pruned version of the newspaper is published. Therefore, in Ms. Bhasin’s argument, the ban on communication services, in particular the restrictions placed on the Internet, have affected both her right to free speech and her newspaper’s right to freedom of the press.

The Leader of the Opposition in the Rajya Sabha, Mr. Azad, on the other hand, who was himself prohibited from visiting the Valley, until the Supreme Court intervened, has underlined various other impacts that the bans have had on people living in Jammu and Kashmir. For example, basic livelihood, he points out, has been deeply affected. Industries such as tourism, handicrafts, manufacture, construction, cultivation, agriculture and information technology have been brought to a state of cessation, with the economy in the region suffering losses running into the thousands of crores. Access to basic healthcare too, he argues, has been impeded, with people in the Valley unable to avail of the government’s Ayushman Bharat scheme. Over and above all this, the ban has meant that people in the Valley have been entirely cut out from the rest of India. Residents outside the state have been unable to speak to their families in Kashmir, leading, Mr. Azad says, to a great deal of mental stress and anxiety.

Issues and legal arguments

It’s simple enough to deduce the issues that arise in the case: (1) Does a denial of access to the Internet violate any fundamental right? And (2) can access to the Internet ever be blocked, and, if so, under what circumstances can such an action be validly enforced?

Access to the Internet

Perhaps the finest exposition of why access to the Internet is a fundamental right is contained in a recent judgment of the Kerala High Court in Faheema Sharin v. State of Kerala. There, the court recognised that access to the Internet is today essential, because it grants people an avenue not only to information but also to a host of other services. Although the web brings with it its own set of challenges there can be little doubt, as the court held, that it enhances individual freedom, in granting to people a liberty of choice, in determining what they want to read, see and hear, in determining what kind of information they wish to access, and, more than anything else, in limiting the government’s ability to control a person’s private self.

As the High Court held, the Internet has become so central today to our lives that it plays an instrumental role in the realisation of a number of constitutional guarantees. The court, in arriving at its conclusions, relied on a United Nations General Assembly Resolution which noted how access to information on the Internet “facilitates vast opportunities for affordable and inclusive education globally, thereby being an important tool to facilitate the promotion of the right to education.” Given the importance of education to the right to life and personal liberty under Article 21 and given how important the Internet was in fulfilling these promises, access to the web, the court held, ought to be considered in and of itself as a fundamental, inalienable right.

Apart from this the court also recognised, that the Internet constitutes not only a medium for speech but also promotes a gateway to information. A right to access the Internet, therefore, in the court’s opinion, has to be seen as an integral component of a citizen’s right to freedom of speech protected under Article 19(1)(a) and can only be restricted on the grounds enumerated in Article 19(2).

The Kerala High Court’s view that access to the Internet is a fundamental right is not only in keeping with global trend but is also consistent with India’s entrenched free speech jurisprudence. After all, as early as in 1961, the Supreme Court had in Sakal Papers v. Union of India, recognised the instrumental value of speech: that access to the news and the media’s role in facilitating the distribution of information and knowledge played a direct role in the promotion of democracy. That the Internet plays a significant part in ensuring the protection of the right to health, personal liberty and livelihood therefore ought to mean that accessing the web deserves to be considered as fundamental, as flowing out of the guarantees contained in Articles 14, 19 and 21, which, today, after the 9-judge bench’s judgment in Justice (Retd). KS Puttaswamy v. Union of India (Puttaswamy I) (2017) 10 SCC 1, together form a trident against arbitrariness.

Therefore, any blocking of the Internet would ex facie violate fundamental rights. As a result, to enforce a restriction on the Internet an action of the state must be predicated on compelling reasons and must necessarily be made in a constitutionally sustainable manner.

When can restrictions be made

It is today settled law, as is clear from a reading of the judgments of the Supreme Court in Puttaswamy I and Puttaswamy II (the Aadhaar judgment), that fundamental rights can only be limited by state actions that conform to the doctrine of proportionality. The test to determine what state actions are proportionate was laid down by a 5-judge bench of the Supreme Court in Modern Dental College v. State of MP. The court there relied on judgments of the Supreme Court of Israel and the Canadian Supreme Court to hold that the doctrine was inherent in Article 19 itself.

A limitation of a constitutional right will be constitutionally permissible if (i) it is designated for a proper purpose; (ii) the measures undertaken to effectuate such a limitation are rationally connected to the fulfilment of that purpose; (iii) the measures undertaken are necessary in that there are no alternative measures that may similarly achieve that same purpose with a lesser degree of limitation; and finally (iv) there needs to be a proper relation (‘proportionality stricto sensu’ or ‘balancing’) between the importance of achieving the proper purpose and the social importance of preventing the limitation on the constitutional right.

In Puttaswamy II, the Supreme Court reiterated this test when it held as follows:

The proportionality test which is stated in the aforesaid judgment, accepting Justice Barak’s conceptualisation, essentially takes the version which is used by the German Federal Constitutional Court and is also accepted by most theorists of proportionality. According to this test, a measure restricting a right must, first, serve a legitimate goal (legitimate goal stage); it must, secondly, be a suitable means of furthering this goal (suitability or rational connection stage); thirdly, there must not be any less restrictive but equally effective alternative (necessity stage); and fourthly, the measure must not have a disproportionate impact on the right-holder (balancing stage).

 

The question therefore that the Supreme Court must now answer in Anuradha Bhasin and Ghulam Nabi Azad is whether the state actions imposing the communications ban in the Kashmir Valley meets this four-prong test or not. And given that there has been an ex facie violation of a fundamental right, the burden to establish that these conditions are, in fact, met in this case lies on the state. Here, the restrictions placed quite clearly impinge on the doctrine of proportionality for the following reasons:

• The orders imposing the Internet shutdown have no force of law. Presently, orders shutting down the Internet are made under the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 (“Telecom Rules”). These Telecom Rules were framed through the power prescribed on the Union executive by Section 7 of the Indian Telegraph Act, 1885. The Telecom Rules require the Executive, among other things, to provide a reasoned order when it directs the withdrawal of the Internet. Here, however, the orders imposing the shutdown were not made public. They were only released to the court during the course of the hearings, and, that too, with tremendous reluctance. A perusal of those orders that were released, however, the petitioners have argued showcase a complete non-application of mind. To take just one example, an order containing the subject: “Shut down of broadband services” was issued to extend an order whose subject read “Shut down of Land Line services.” What is more, while it is the Home Secretary (Govt. of India) or the Home Secretary of the state government concerned who is the competent authority to issue orders of suspension of the Internet under the Telecom Rules, in this case, the petitioner contend, the orders were issued by the Inspector General of Police. But, more than anything else, the orders themselves were bald and devoid of any reasons despite the Telecom Rules’ express mandate that orders suspending the Internet be issued for explicitly spelled out reasons.
• The orders issued suspending the Internet are not in furtherance of any legitimate state aim. The government’s case is that it apprehends that the Internet will be misused by “anti-national” elements and will lead to a deterioration of “law and order.” However, neither phrase invoked confirms to the requirements of Article 19(2) of the Constitution. The Supreme Court has repeatedly held (see: Superintendent Central Prison, Fatehgarh v. Dr. Ram Manohar Lohia and In Re Ram Lila Maidan Incident) that the term “law and order” is not subsumed within “public order” which is the ground that Article 19(2) stipulates. In the latter case, the court held that: “the distinction between `public order’ and `law and order’ is a fine one, but nevertheless clear. A restriction imposed with `law and order’ in mind would be least intruding into the guaranteed freedom while `public order’ may qualify for a greater degree of restriction since public order is a matter of even greater social concern. Out of all expressions used in this regard, as discussed in the earlier part of this judgment, `security of the state’ is the paramount and the State can impose restrictions upon the freedom, which may comparatively be more stringent than those imposed in relation to maintenance of `public order’ and `law and order’. However stringent may these restrictions be, they must stand the test of `reasonability’. The State would have to satisfy the Court that the imposition of such restrictions is not only in the interest of the security of the State but is also within the framework of Articles 19(2) and 19(3) of the Constitution.” In this case, the orders imposing the restrictions on the Internet the orders reference “law and order” without showing us how preservation of “public order” legitimately required the restrictions as imposed. What is more, as the petitioners have contended, the term “anti-national” is simply undefinable and does not fall within any of the carefully delineated grounds stipulated in Article 19(2) of the Constitution.

• The orders imposing the shutdown are not rationally connected to the fulfilment of the supposed purpose, that is the prevention of violence. While the state has repeatedly claimed that the Internet will be misused by miscreants and anti-national elements it has provided no actual evidence of such misuse being a real and genuine threat. Indeed, as the petitioners have shown, studies indicate the opposite, that a shutdown of the Internet leads to anxiety and unease and augment the risk of protests and demonstrations turning violent. Therefore, the state has simply failed to demonstrate the existence of a cogent and sensible nexus between the restrictions imposed and the purported aim behind the orders.

• Finally, the orders also do not conform to the test of necessity, that there was a compelling need for these actions and that the purported objective could not have been achieved through less restrictive and less invasive means. When even according to the state’s own arguments it is only a minuscule minority that are likely to commit violence, and when a whopping majority of the populace represent no threat to public order it is difficult to conceive how a complete shutdown of the Internet can constitute a necessary and proper action. Indeed, as the petitioners have shown, the state has often, in the past, isolated persons prone to terrorising from others, based on their registered mobile phone numbers. What is more, the state could quite easily have also resorted to blocking certain websites alone if the intention was to prevent incitement of violence. That a wholesale blockade of the Internet has been in force for more than four months evinces the fact that the State hasn’t so much as made an effort at ensuring that it adopts the least restrictive means possible to ensure that violence isn’t perpetrated in the region.

Ultimately, therefore, the actions of the state in enforcing a host of communication barriers in the Kashmir Valley, in particular its decision to entirely restrict access to the Internet, constitute a collective punishment on the people of the region and violate, among other things, the fundamental rights guaranteed under Articles 19(1)(a) and 21 of the Constitution.

Kashmir: Fundamental Rights and Sealed Covers

In a previous post, we discussed one of the peculiar features of the ongoing litigation regarding the communications shut-down and other restrictions in Kashmir. One of these features is the absence – in court – of the government’s orders that constitute the basis for the restrictions (whether under the Telecom Suspension Rules or Section 144 of the CrPC). As we discussed, one of the basic requirements for a restriction upon fundamental rights is the existence of a law, and its publication (i.e., the law being made available to the citizens whose freedoms it seeks to restrict). There can be no restriction of fundamental rights in the absence of law, or on the basis of secret laws.

In the hearing of 16th October, this question was (finally) put to the State by the Supreme Court Justices. It is reported that Solicitor-General Tushar Mehta stated that he had no objection to showing the orders to the Court, but considerations of national security may require him to withhold them from the petitioners – and that the petitioners had no “right” to claim access to the orders. Accordingly, the Court’s Order records that if the Solicitor-General wants to claim “privilege” over the orders, then the Court “requests him to file an affidavit indicating the reasons for claiming such privilege.” 

While we wait for the government’s affidavit, it is important to note that what is at stake here is a creeping expansion of the “sealed cover”, which we have seen so often in recent times. It is also important to note that it is entirely unjustifiable: executive orders – passed under cover of law – restricting rights of citizens are not and cannot be subject to legal privilege, or submitted to the Court in a sealed cover. 

At one level, it is questionable whether a legal order revealed only to the Court, and hidden from citizen, counts as “publication” in the relevant sense. But there is a more basic reason why this is unconstitutional. If I – as a citizen – do not have access to the legal order that purports to restrict my rights, I have no effective way of challenging it in Court and demonstrating it to be unconstitutional. I cannot show that it is disproportionate and fails the reasonableness standard under Article 19(2). What this means, in turn, is that effectively, that I have no remedy to enforce my fundamental rights. And a right without a remedy is, of course meaningless. 

Effectively, therefore, denying the order on the basis of which rights are infringed amounts to a suspension of the rights themselves. As explained in a previous post, this can only be done – and that too, partially – through a formal declaration of Emergency; in other words, the government’s arguments are entirely based upon the logic of an Emergency, without the courtesy of a formal declaration of Emergency. 

It is important to remember the last time the contrary argument was made. The last time it was made – unsurprisingly – was in ADM Jabalpur. There, the argument made on behalf of the detenus was that the suspension of the right to move the Court to enforce habeas corpus amounted to the denudation of Article 21 itself. To this, the Court said that the mere fact that you could not move the Court did not mean that the rights ceased to exist – it just meant that you had no way of enforcing them. But if ADM Jablpur has been buried “ten fathoms deep” by Puttaswamy, then surely there is no remaining scope for the Government, in 2019, to make this argument.

Consequently, therefore, no “affidavit” can justify keeping the communications suspension and S. 144 orders secret, and there is no justification for handing them over to the Court in a “sealed cover”. They must be made disclosed, and not only to the petitioners, but to the general public, so that affected parties are in a position to seek remedies before the courts of law. Any other outcome would only amount to a justification of the logic of Emergency.   

Guest Post: The Constitutionality of a State-Enacted Water Cess

[This is a guest post by Rahul Pandey.]

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Introduction

In the first unequivocal decision of its kind, the Himachal Pradesh High Court (“Himachal HC”) has struck down the The Himachal Pradesh Water Cess on Hydropower Generation Act, 2023, in NHPC Ltd v. State of HP (“NHPC”). While disputes pertaining to imposition of cess on usage of water for electricity generation are not unprecedented, this is the first instance that such a cess has been struck down in its entirety. A similar legislation was upheld by the Uttarakhand High court (“Uttarakhand HC”) in Alaknanda Hydro Power v. State of Uttarakhand (“Alaknanda”), and another is subject to a pending challenge before the Jammu and Kashmir High Court.

Despite being endowed with rich natural resources, these hill states often face a revenue crunch due to a lack of sources to generate income. They thus expect the imposition of cess on water usage for hydro-power generation fetched from their vast rivers to make up the shortfall However, the imposition of such a cess arguably comes at the cost of important constitutional principles relating to legislative competence, taxation and federalism being compromised. This is because the use of river water has ramifications beyond single states: it is utilized to produce renewable and clean energy for several neighboring states and territories. This article shall endeavor to highlight how the imposition of such a levy is invalid as rightly pointed out in NHPC and in the judgement of Maithani, J. in the split verdict arising out of a special appeal from Alaknanda in T.H.D.C. India Ltd. and Ors. v. State of Uttarakhand. (“THDC”).

The scope of this article shall be restricted to the issues of legislative competence and pith and substance. The article shall not engage with the issues of Article 288, promissory estoppel and the reading down of the tax as a fee.

Legislative Competence

In the present set of cases, the states relied upon Entry 17 (Water), Entry 45 (Land Revenue), Entry 49 (Taxes on land and buildings) and Entry 50 (Taxes on Mineral Rights) of List II to the 7^th Schedule to justify the levy of the water cess. However, as per contentions presented by The Union of India, none of these are valid fields for the state legislatures to enact such legislation as the questioned act, in its true substance, is a tax on generation of electricity. This is exclusively a field for the parliament, as held by the SC in the case of M/s Hoechst Pharmaceuticals Ltd. & Ors. vs. State of Bihar & Ors. 1983 (4) SCC 45. (“Hoechst Pharmaceuticals”).

The power to tax cannot be interpreted as being ancillary to a regular entry and has to be derived clearly from a taxation entry. These are separate from general entries that are only regulatory in nature. The principle has been reiterated by the SC time and again in decisions such as Hoechst Pharmaceuticals, Bimolangshu Roy v. State of Assam, etc. This was also recognised by judgements of the Himachal and Uttarakhand High Courts in the decisions in NHPC and THDC respectively. However, in a glaring error, the single judge in Alaknanda, at various points in the judgement, referred to Entry 17 as a valid provision for the imposition of the said levy. (Paras 36, 75, 81). Based on previous SC decisions that make it clear that imposition of a tax cannot be inferred as being incidental or ancillary to regulation via another general entry, the states’ contention of the laws being competent via Entry 17 of the List II falls flat.

Placing reliance on the principles of constitutional interpretation, namely that each entry within the three lists must be given its widest possible amplitude, it was argued by the states that the Entries 45 and 49 of List II, dealing with land and land revenue, should be interpreted to include water within their meaning. Extensive reliance was placed upon the Constitutional Bench’s decision in W. B. vs. Kesoram Industries Ltd. & Ors., which declares that the word ‘land’ needs to interpreted in a wide manner as to include each and everything below and above it. These contentions were accepted by the Uttarakhand High Court in Alaknanda and by Vipin Sanghi, CJ, in THDC. However, as rightly pointed out by the judgement in NHPC, if the interpretation to the term ‘land’ has to be so wide as to include flowing rivers within it, then each and every object on earth would be directly and indirectly covered by the field of legislation provided by such an entry. (Para 50). Such an interpretation would run counter to the important principle expounded by the court in Calcutta Gas Co. (Proprietary) Ltd. v. State of W.B., that no entry should be interpreted in such a manner as to render another superfluous.

If the constitution really meant for land and water to mean one and the same, there would have been no need to introduce different entries, Entry 17 (Water) and Entry 18 (Land) for the purpose of their regulation as rightly pointed out by Maithani J in THDC (para 83). In fact, a whole list of entries that would lose their relevance if land was given a meaning as extensive as that demanded by the states, has been provided in NHPC. (para 50) Even if the state’s contentions of a river being an extended part of land is accepted, any tax levied on via Entry 45 shall be directly on the land as a unit, as per the judgement of the SC in India Cement Ltd. v. State of T.N.

However, it was the repeated submission of states that the tax is not on water itself but the drawing of water for hydro-power generation. If water is really an extension of land and such land in the form of water is liable to levies by the State Government, such a levy being on the drawing of it is neither a tax on the land via Entry 45 nor a form of Land Revenue via Entry 49; rather, it is a tax on its drawing which is an activity only incidental to “water”, based on principles as laid down in Sea Customs Act, S. 20 (2). (paras 26 and 94). The incidence of taxation is on the drawing of water for hydro-power generation and not on the land itself thus making the legislature incompetent to levy such tax via virtue of Entries 45 and 49 of List II.

For justifying the imposition of the tax via Entry 50 (mineral rights) of the List II, in all three cases, the judgement in Ichchapur Industrial Coop. Society Ltd. vs. Competent Authority, Oil & Natural Gas Commission (“Ichchapur”) was cited to argue that the Supreme Court has held water to be a mineral under Entry 50. This was accepted by the court in Alaknanda (para 41) and by Vipin Sanghi, CJ. in THDC (paras 58 and 62). However, as rightly pointed out in NHPC (para 57) and by Maithani, J. in THDC, water was read into minerals in the Ichchapur case only for the purpose of Petroleum & Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962 (User Rights Acquisition Act), considering the definitions in The Mines Act, 1952. Such an interpretation cannot be applied while reading a constitutional field of legislation. No universal declaration has been made with regard to water being a mineral under the meaning of entry 50. Furthermore, even if water is considered a mineral for the purpose of Entry 50, the tax has to be on ‘mineral rights’ and not the mineral itself. Placing reliance on the decision in Hingir Rampur Coal Co. Ltd. V. State of Orissa, AIR 1961 SC 459, Maithani, J. in THDC has correctly pointed out the levy in question has nothing to with any mineral rights being conferred, thus making Entry 50 not a valid field for the enactment of such legislation. (para 100).

Pith and Substance

While the doctrine of plenery powers states that each and every entry must be given the widest possible meanings, it needs to exercised with a certain degree of caution in respect to entries in the three lists that concern taxation. Taxation Entries cannot be subject to the ordinary rules of interpretation for they are distinct vis-à-vis general entries. The same was reiterated by the court in the judgement of All India Federation of Tax Practitioners v. Union of India (para 527). In this regard, it is necessary for the courts to enquire into the ‘pith and substance’ with regard to the true nature of a particular levy with reference to the legislative competence. 

As noted above, the states have contended that the tax is on the ‘drawing of water for electricity generation’ rather than the water of the electricity generation itself. However, a bare perusal of the text of the act would reveal that the tax is on the singular event of the drawing of water for the purpose of hydro-power generation. The generation of hydro-power is impossible without the drawing of the water for the purpose for it. Himachal Pradesh, via a notification dated 16.02.2023 and Uttarakhand, via notification dated 07.11.2015, have made the height at which the water falls from a measure for determining the quantum of the tax. Both NHPC (para 40) and Maithani, J. in THDC (para 176) have taken a note of the same. The height from which the water falls from is directly related to the amount of electricity generated and thus the tax in no way can be said to be concerned with the mere drawing of water as argued by the states. It is not the mere usage of water that is being taxed but the use of water for the purpose of hydro-power generation by a user that is the taxable event.

Based on the taxable event, user and measures for the said tax, it can clearly be concluded that the state legislatures have tried to cloak a levy on hydro-electricity generation as a levy on the mere drawing of water and thus being an exercise of colorable legislation, the tax, in its present form and shape, needs to be struck down.

Conclusion

It is submitted that the states of Himachal Pradesh and Uttarakhand clearly lack the legislative competence to enact such a tax on use of water for hydro-power generation. The enactment of such a levy is clearly in contravention to the scheme under Schedule VII of the Constitution. When the issue comes up to the SC, this article comments the approach of they must take note of the judgements of NHPC and Maithani, J. in THDC for the Court’s consideration.

Article 370: Round-Up

This is a round-up of all the blog posts on the ICLP blog dealing with the Article 370 case, from the day of the abrogation (5th August, 2019) to the judgment (11th December, 2023), and its consequences. These posts do not cover the various issues regarding internet shut-downs and habeas corpus, which also arose as a consequence of the events of August 5, 2019: these will be compiled in a separate round-up.

For readers interested in engaging with the detailed legal arguments, please refer to the archive of written submissions.

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The Day of the Abrogation:

1. The Article 370 Amendments: Key Legal Issues (August 5, 2019).

After the Abrogation:

1. Article 370: The Constitutional challenge (August 13, 2019) (by Niveditha K).
2. Article 370: A Counterpoint (August 15, 2019) (by Pranay Lekhi).
3. Article 370 – Dealing with Sampat Prakash and Maqbool Damnoo (August 15, 2019) (by Amlan Mishra).
4. One Nation, One Flag, One Constitution? – I (September 25, 2019) (by Shrimoyee Ghosh).
5. One Nation, One Flag, One Constitution? – II (September 26, 2019) (by Shrimoyee Ghosh).

The Interregnum:

1. Jammu and Kashmir’s New Domicile Reservation Policy – Some Constitutional Concerns (April 4, 2020).
2. Deepening Fait Accompli: The Supreme Court’s J&K Delimitation Judgment – I (March 5, 2023) (by Ashwin Vardarajan).
3. Article 370 and a Governor’s Interview (April 16, 2023).

The Hearing:

1. In Re Article 370 and Problems of Federalism (July 13, 2023) (by Jai Brunner).
2. Constitutional Pluralism in the Article 370 Hearings (October 20, 2023) (by Kushagr Bakshi).

The Judgment:

1. Federalism, “Permanent Changes” and the Article 370 Judgment: An Interpretive Note (December 12, 2023).
2. The Supreme Court’s Article 370 Judgment – Unilateral Declarations and Self-concurrence as Constitutional Practice (December 12, 2023) (by Kieran Corriea).
3. The Supreme Court’s Article 370 Judgment – II: On the Constituent Power of Jammu and Kashmir (December 16, 2023) (by Ashwani Singh).
4. The Supreme Court’s Article 370 Judgment – III: On the (Ab)Uses of History (December 17, 2023) (by Arvind Abraham).
5. The Supreme Court’s Article 370 Judgment – IV: Emergency, President’s Rule, and Constitutional Change (December 17, 2023) (by Kieran Correia).
6. The Supreme Court’s Article 370 Judgment – V: On the Extinction of Statehood (December 21, 2023) (by Kieran Correia).
7. The Supreme Court’s Article 370 Judgment – VI: On Representative Democracy (December 22, 2023) (by Krishnesh Bapat).
8. The Supreme Court’s Article 370 Judgment – VII: Explaining Incoherence (December 23, 2023) (by Ashwani Singh).
9. The Supreme Court’s Article 370 Judgment – VIII: On “Integration” and Ideological Choices (December 29, 2023) (by Kartik Kalra).

Guest Post: The Supreme Court’s Article 370 Judgment – VII: On “Integration” and Ideological Choices

[This is a guest post by Kartik Kalra. It is the concluding post in the blog series analysing the Supreme Court’s Article 370 judgment.]

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This month, the Supreme Court delivered its judgment in In Re: Article 370 of the Constitution, holding valid the Central Government’s abrogation of Article 370. Article 370 created three avenues of participation for the erstwhile State of Jammu & Kashmir (“J&K”), in actions the Union may take concerning its constitutional status: the President’s (that is, the Central Government’s) application of constitutional provisions to the State; Parliament’s power to legislate for the State; and the Central Government’s power to declare Article 370 inoperative. The Court, based on its conceptualization of Article 370 as a mode of pursuing J&K’s “constitutional integration” with the Union (¶342, Chandrachud, CJ.), and as a mode of bringing the State “on par with other States in [the] process of phased integration” (¶64, Kaul, J.), held that these objectives would – through Article 370’s removal – mark a “culmination of the process of integration” (¶420, Chandrachud, CJ.), and would, therefore, align with the integrationist objectives of Article 370. The Court has, per majority, laid down the following propositions:

1. “Recommendation” of the Constituent Assembly: Article 370(3) – which requires the J&K Constituent Assembly to recommend that the Article cease to operate before the Central Government declares so – does not imply that the Article dons a character of permanence due to the Constituent Assembly’s dissolution, and confers, instead, unilateral authority on the President to declare the Article inoperative (¶346, Chandrachud, CJ.; ¶74-5, Kaul J.; ¶7, Khanna J.).
2. Alteration of “Constituent Assembly” to “Legislative Assembly”: Article 370 can be modified only through Article 370(3), which, in turn, requires the Constituent Assembly’s authorization. Article 367 – which contains interpretations and definitions – cannot be amended to define the “Constituent Assembly” as “Legislative Assembly”, for that “modif[ies] the essential character” of Article 370, which is constitutionally impermissible (¶384, Chandrachud CJ.; ¶87, Kaul J.; ¶3, Khanna J.). This, however, does not matter, for the President held the power to abrogate the Article unilaterally (see above).
3. Application of the entire Constitution to the State: C.O. 273, which applies all provisions of the Constitution to the State, is valid despite the absence of “concurrence” of the Government of J&K in authorizing such a move (as required under Article 370(1)(d)), for the effect of a declaration applying all constitutional provisions is the same as Article 370’s abrogation – which, as noted above – can be done unilaterally by the President under Article 370(3) (¶427, Chandrachud CJ.; ¶94, Kaul J.; ¶3, Khanna J.).
4. Article 3 of the Constitution: Article 3 – which requires the conferral of an opportunity on the state undergoing political/territorial transformation to “express…its views thereon” – could be dispensed with during a state emergency under Article 356, for such views carry no binding value (¶511, Chandrachud CJ.; ¶110-111, Kaul J.; ¶3, Khanna J.). Section 3 of the Jammu & Kashmir Reorganization Act, 2019, which creates the Union Territory of Ladakh from the erstwhile State of Jammu & Kashmir, is, therefore, valid despite the absence of the views of Jammu & Kashmir’s State Legislature. The validity of the demotion of the erstwhile state of Jammu & Kashmir to a Union Territory was not adjudged in reference to Article 3, for the Court was “alive to the security concerns in the territory”, and that the Union promised to restore Jammu & Kashmir’s statehood soon. (¶503, Chandrachud, CJ.)

Some aspects of these propositions have been discussed in seven previous essays on this blog – Kieran Correia has proposed the impropriety in invoking the President’s power of unilateral abrogation under Article 370(3) as a justification for dispensing with the State Government’s “concurrence” under Article 370(1)(d); Ashwani Singh has proposed that “constituent power” of the people of J&K is, in fact, perpetually alive – and the possible creation of an institution exercising such constituent power in the future meant that the risk of stultification due to the previous Constituent Assembly’s dissolution was overestimated; and Arvind Abraham has proposed that a historicized account of the constitutional relationship between J&K and the Union indicates that a “one-size-fits-all” approach to integration – which the Court identifies as Article 370’s purpose – was never on the cards at the moment of enactment.

In this essay, I propose that the Court imputes to Article 370 a singular objective of facilitating J&K’s complete constitutional integration with the Union, which triumphs over all other objectives of Article 370, especially those seeking the protection of J&K’s autonomy. The pursuit of integration constitutes the Court’s overall interpretive fulcrum – the vesting of unilateral abrogating power with the Central Government, the negligible value of a “recommendation”, and the application of the entire Constitution to the erstwhile State without a semblance of its participation – all are justified in pursuit of J&K’s constitutional integration. I make this argument in the following manner – first, I discuss the circumstances causing the Court to invoke the logic of integration ad-nauseum in its interpretation of Article 370, noting the absence of alternatives – given the apparent invalidity of C.O. 272’s amendment to Article 367; second, I demonstrate the application of this logic in the construction of Article 370(3), proposing its centrality to the Court’s assessment of the constitutional relationship between J&K and the Union; and third, I discuss its spillover effects on the Court’s assessment of the “recommendation” under Article 370(3), alongside the difficult coexistence of the low thresholds attributed both “concurrence” and “recommendation”.

Different Approaches to Disregard Consent – Kaul, J. and Chandrachud, CJ. on Article 370(3)

Chandrachud, CJ. and Kaul, J., as noted above, held that any modification of Article 370 – even for the purposes of its abrogation – must occur only through Article 370(3), which requires a prior recommendation of the J&K Constituent Assembly. C.O. 272, the constitutional order modifying Article 370(3) to enable the Article’s abrogation by interpreting “Constituent Assembly” as “Legislative Assembly”, was, therefore, invalid to this extent, for its result was a substantive modification of Article 370(3), an outcome that can be pursued only through Article 370(3) (¶382-3, Chandrachud, CJ.). The Court rejected the Union’s invocation of Mohd. Maqbool Damnoo v. State of Jammu and Kashmir – a case upholding an amendment to Article 367 that interpreted the term “Sadr-i-Riyasat” as it appears under Article 370(1) as “Governor” – on the ground that the Governor was the constitutional successor to the “Sadr-i-Riyasat”, and the amendment, in that case, was only clarificatory in nature, not having the effect of substantively modifying Article 370 (¶416-7, Chandrachud, CJ.). In the instant case, however, the amendment to Article 367 had the effect of substantively modifying Article 370, for there existed “myriad differences between a Constituent Assembly and Legislative Assembly”: one exercised constituent power, and the other legislative power (¶384). On this basis, therefore, C.O. 272 – to the extent it modified Article 370 through Article 367 – was invalid.

It must be noted, however, that the validity of the entire series of actions taken by the Central Government concerning J&K – from the application of all provisions of the Constitution to the State through C.O. 273, to the Jammu and Kashmir Reorganization Act, 2019 that split the state into two Union Territories – hinged on the validity of Article 370’s abrogation, for otherwise, the erstwhile J&K’s own Constitution, as well as modified provisions of the Indian Constitution as they applied to J&K, prevented the Central Government from pursuing them.

The Court had to, therefore, develop new justifications for why – despite C.O. 272’s invalid modification of Article 370 – the Article could still be validly abrogated. Chandrachud, CJ. and Kaul, J. develop four such justifications: first, the persistence of Article 370’s integrationist objectives after the Constituent Assembly’s dissolution, which required that the possibility of J&K’s complete constitutional integration not be foreclosed; second, the proviso to Article 370(3) – which required the Constituent Assembly’s recommendation to abrogate Article 370 – becoming otiose at the moment of its dissolution, conferring unilateral powers on the Central Government to abrogate the Article; third, the character of a “recommendation”, which – even if issued by the Constituent Assembly – would not have bound the President; and fourth, the consultative underpinnings of Article 370(1)(d) becoming meaningless when the entire Constitution – as opposed to individual articles – is applied to J&K. I discuss these one-by-one.

The J&K Constituent Assembly Predeceased Article 370’s Integrationist Objectives – Navigating Article 370(3)

First, the Court makes a clear ideological choice in identifying Article 370’s objectives – it holds, with substantial repetitiveness, that Article 370 was “intended to enhance constitutional integration” between the Union and the State (¶348); that it demonstrated a “gradual process of constitutional integration” (¶465); that it was meant for “constitutional integration and not disintegration” (¶342), along with many other remarks hinting at – as is clear – constitutional integration. It imputes this objective to Article 370 through a study of history, Constituent Assembly Debates, speeches of state officials in J&K and the Union, along with the marginal note and constitutional placement of Article 370 indicating its character as temporary (¶138-9; ¶143-4; ¶231-4). Further, Kaul, J. holds that Article 370 envisioned a “process of phased integration” (¶64) between the State and the Union, noting that the Article sought to achieve “complete integration but…over a period of time” (¶59).

Kaul, J. disagreed, in letter if not in spirit, with Chandrachud, CJ.’s assessment of J&K’s “internal sovereignty” being lost through Article 370. Prem Nath Kaul v. State of Jammu and Kashmir involved a jurisdictional challenge to a law’s enactment by Yuvraj Karan Singh (J&K’s monarch, recognized as the sovereign lawmaker under the J&K Constitution) based on his sovereign lawmaking powers eroding by virtue of Article 370. The Court, rejecting this argument, recognized that a semblance of sovereignty continued being vested in, and exercisable by, the Yuvraj after Article 370’s insertion in the Constitution, and references to J&K’s Constituent Assembly thereunder verified the same (¶26, 36). Chandrachud, CJ. held that such remarks were obiter, and did not authoritatively pronounce on the issue of J&K’s “internal sovereignty”, which was, instead, “[in]distinguishable from that enjoyed by other States” (¶165). Kaul, J., on the other hand, held that Prem Nath Kaul did recognize J&K’s “internal sovereignty”, but Article 370 was nonetheless designed in a manner such that it envisioned such sovereignty to, one day, cease existing:

68. Once these aspects are read with Article 370(3), the corollary is that there was a mechanism to bring the whole arrangement to an end. The effect of the power under Article 370(3), once exercised, would be that the Article ‘shall cease to be operative’. In other words, the mechanism was meant to de-recognize the State’s internal sovereignty.

Despite the theoretical disagreement on whether “internal sovereignty” was retained by J&K after Article 370, both judges concur on the Article’s ultimate purpose being J&K’s complete constitutional integration with the Union. While I do not propose this view to be necessarily incorrect, it was, undoubtedly, the product of a conscious choice: various other perspectives to Article 370, including those identifying as its primary purpose the enhancement of its autonomy, or the creation of avenues of participation concerning decisions affecting the state, have been offered. The Court chose to accord priority only to one objective, which assisted its interpretation of Article 370(3) conferring unilateral authority of abrogation to the President after the Constituent Assembly’s dissolution.

Based on the priority accorded to the integrationist logic deemed to underpin Article 370, the Court held that if the Constituent Assembly’s dissolution became the basis of the Article’s permanence, it would constitute a “freezing of the integration” between J&K and the Union (¶346(e)). In order to prevent such stultification, it held that the Constituent Assembly’s dissolution had no impact on the President’s power to abrogate Article 370, which could now be done unilaterally (¶346(d)). In other words, the proviso to Article 370(3) – which required a prior recommendation of abrogation from the Constituent Assembly became otiose the moment the Assembly was dissolved. All that remained was Article 370(3)’s main text, which empowered the President to abrogate the Article unilaterally. In a similar vein, Kaul, J. held that Article 370’s purpose, which was to “bring Jammu and Kashmir on par with other States”, could not be fulfilled within the J&K Constituent Assembly’s lifetime, and was an “ongoing exercise” (¶70). In order to prevent obstacles to this ongoing exercise, the President would, after the Constituent Assembly’s dissolution, obtain the power to abrogate Article 370 unilaterally. In order to remedy the procedural impossibility of obtaining the defunct Constituent Assembly’s recommendation to abrogate, the Court chose to de-operationalize the proviso requiring this recommendation, justifying it primarily in reference with to integrationist aims of Article 370 that survived beyond the J&K Constituent Assembly’s lifetime.

On the Insignificance of “Recommendations”, “Consultations” and “Concurrence” – Circumventing Article 370(3); Twisting Article 370(1)(d)

Having vested the unilateral power to abrogate Article 370(3) with the President after the Constituent Assembly’s dissolution, the Court added to its justifications – it held that even if such a recommendation was issued, it carried no binding value, and was, therefore, dispensable. Chandrachud, CJ. held that the requirement of a recommendation originating in the Constituent Assembly was akin to a ceremonial ratification process of little legal value, and its non-binding character from the very inception must be a factor in appreciating the validity of its removal (¶346(a)). This approach has been critiqued in an essay by Ashwini Singh.

Kaul, J., on the other hand, offered another reason why the J&K Constituent Assembly’s recommendation – even if issued – would have been non-binding: he states that the word “recommendation” envisions negligible agreement between the entity sending and receiving the recommendation (¶77). He juxtaposed the term “recommendation” with the terms “consultation” and “concurrence”, which are conditions stipulated under Article 370(1)(d) for Parliament’s lawmaking power over J&K, holding that unlike these two requirements positing high thresholds of agreement, “recommendation” does not mean much. The problem, however, lied in the different purposes these terms served under Articles 370(1)(d) and 370(3) – while “consultation” and “concurrence” qualified Parliament’s lawmaking power over the erstwhile State, a prior recommendation from the Constituent Assembly was a procedural condition for the Article’s abrogation, making the comparative weighing of their threshold agreements a likely irrelevant enquiry.

Kaul, J., therefore, held that the President – that is, the Central Government – should be given free rein under Article 370(3), for the value of a recommendation – as opposed to a “consultation” or “concurrence” – was minimal. On the other hand, when it came to the appreciation of these exact standards in C.O. 273’s extension of all constitutional provisions to the state without “concurrence” (or even “consultation”), the Court held that because all of the Constitution was applied to the erstwhile State (as opposed to some specific segments), no concurrence or consultation was necessary. Chandrachud, CJ. and Kaul, J. held that the consultative underpinnings of Article 370(1)(d) – which require the participation of the J&K Government – were relevant only when some constitutional provisions were being applied to the State (¶427(d); 94). On the other hand, when the entire Constitution was being extended, such consultation was unnecessary, for the extension was conceptually akin to the removal of Article 370 through Article 370(3). To summarize, the value of a “recommendation” is minimal, and that of a “concurrence” higher; but when all of the Constitution is applied to the State, both the “recommendation” and the “concurrence” are rendered equally irrelevant!

Conclusion

On this basis, I submit that the logic of integration lies at the judgment’s core – the Court invokes it as the primary justification for conferring unilateral abrogating authority on the President, which, in turn, enables the attribution of immense insignificance to the J&K Constituent Assembly’s “recommendation” concerning abrogation. The pursuit of constitutional integration trumped, in a way, the Constitution itself – instead of compelling the Union to follow either, if not both Article 370(3) and Article 370(1)(d) in the process of abrogation, the Court chose to de-operationalize Article 370(3) to justify the Union’s acts of abrogation, and justified non-compliance with Article 370(1)(d) based on the practical similarity between an order under Article 370(3) and one under Article 370(1)(d).

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.