What next for Indian federalism?

As we begin 2024, several judgements of the Supreme Court from 2023 are set to influence the Indian polity in the coming year. Most important of them all is the Supreme Court ruling on Article 370. Politically, the ruling would have the effect of boosting the BJP’s nationalism rhetoric and majoritarian politics as it approaches the general election. Constitutionally, it raises critical questions about the future of federalism and democracy in the nation. 

The Supreme Court’s decision primarily focuses on two legal issues -- the effect of President’s Rule in Jammu and Kashmir, and the provisions of Article 370 itself. The judgement effectively extended parliament’s powers to make permanent legislative changes while a state assembly was dissolved and removed the requirement for the concurrence of the J&K Constituent Assembly, allowing parliament to abrogate Article 370, bypassing the established constitutional procedure. Additionally, the court declined to rule on the conversion of J&K from a state to a Union Territory without due process under the Constitution, relying instead on the Solicitor General’s assurance of the potential restoration of J&K’s statehood.

The approach adopted by the court has the effect of strengthening the powers of the Union government and could further perpetuate an already skewed federal structure. Changes enabled by the courts can weaken state governments and increase the risk of a ‘federal takeover.’ Expanding the Union’s powers when a state assembly is dissolved presents complications. In the current times, conflicts between the states and the Union are frequent, on issues ranging from welfare measures to caste census to law and order issues. Additionally, state politics have become increasingly volatile, with frequent attempts to destabilise elected governments through weak anti-defection laws, escalating the risk of President’s Rule in the states. The judgement now effectively enables the Union, during President’s Rule, to transition from a caretaker role to a fully empowered governing body, capable of overturning decisions of the previous government and enacting new laws aligned with its priorities. This is a stark departure from the Supreme Court’s previous stance in SR Bommai and the reports of the Sarkaria Commission, where it held that the role of the Union government during President’s Rule must be merely restorative and limited to day-to-day governance, and must desist from permanent and irreversible changes. 

Furthermore, the invalidation of the requirement for the J&K Constituent Assembly’s concurrence prior to the abrogation of Article 370 overlooks important aspects of constitutional history and procedure. The J&K Constituent Assembly represents more than a constitutional body; it embodies the acknowledgement and validation of India’s historical union of states. This grant of procedural special status in the Constitution is not unique to Kashmir alone. Nagaland’s Article 371A and Mizoram’s Article 371G see this historical manifestation in the express veto granted to the states which prevents parliament from making any laws on customary laws and procedure unless the Legislative Assembly of the respective state so decides. Even in Arunachal Pradesh, although the Governor is vested with the special responsibility for law and order of the state, Article 371H mandates that he consult the Council of Ministers. Constitutional provisions that envision consultation and consent were put in place to ensure that the states are represented in decision-making even in exceptional circumstances and remain foundational to the prescribed federalism. Today, the judgement places long-held historical commitments read into the Constitution through deliberate consultation and procedures at risk.

The dilution of India’s federal principles is further evidenced by the Court’s decision not to rule on the conversion of J&K into a Union Territory. The constitutional court’s reliance on the Solicitor General’s assurance reflects an unusual practice of the Supreme Court to restrict itself from delivering its opinion on key constitutional issues. The court also followed this practice in the same-sex marriage case, where it stopped short of issuing binding direction on the Union to recognise certain rights of same-sex couples in the wake of an assurance by the Solicitor General. Not ruling on the key constitutional issue involved has the effect of transforming a case from a constitutional-level matter into a mere dispute warranting resolution. While assurances of this nature can serve as effective means to address administrative concerns involving the Union, at the constitutional level, abstaining from a definitive verdict and depending solely on such assurances diminishes the court’s role and significance.

The Supreme Court’s judgement represents a significant victory for the Union government, extending far beyond Kashmir. The judgement could have the effect of enhancing a trend of federalising interpretation, something the executive welcomes. Following the Article 370 ruling, it appears that the court has inevitably acknowledged that despite its vast constitutional powers, its role has shrunk in the face of a powerful parliamentary majority.   

(Shashank Athreya is an advocate practising in the Karnataka HC; Adithi Holla is a legal researcher)