Is India’s Democracy at Risk? The Shocking Implications of the Article 370 Judgment!

The article discusses the controversial abrogation of Article 370 in 2019, which removed the special status of Jammu and Kashmir (J&K) and sparked intense political reactions. The Supreme Court upheld this decision in 2023, raising questions about the sovereignty of J&K and the legitimacy of the Union Government’s actions without the dissolved Constituent Assembly’s recommendation. Critics, including legal experts, argue that the ruling sets a dangerous precedent for federalism in India. The Basic Structure Doctrine’s application was also contested, leading to concerns about the future of other special provisions in the Constitution.

The article emphasizes the need for a more inclusive political framework that accommodates the diverse identities and rights of all Indian communities. Ultimately, it calls for an expansion of constitutional morality to protect vulnerable populations within a maturing democracy.

Is India’s Democracy at Risk? The Shocking Implications of the Article 370 Judgment!

Nani Palkhivala once remarked, “A law does not lose its tyrannical nature just because it is enacted by elected representatives. In some cases, a benevolent despot may provide better governance than elected officials.”

The abrogation of Article 370 in 2019 marked a significant and contentious moment in India, eliciting strong reactions across the political spectrum. The heavy military presence accompanying this decision only intensified the situation. When the matter reached the Supreme Court, the 2023 ruling upheld the actions of the Union Government. Key issues addressed included whether Jammu and Kashmir (J&K) retained any sovereignty following its accession to India, the temporary nature of Article 370, and the President’s authority to abrogate J&K’s special status without the J&K Constituent Assembly’s recommendation. The legitimacy of the State’s Legislative Assembly assuming the role of the dissolved Constituent Assembly was also questioned.

J&K presents a unique case because it initially signed a Standstill Agreement with Pakistan and hesitated to join either India or Pakistan after the British left, reflecting a complicated historical context. Nehru was personally invested in retaining Kashmir, while Sardar Patel once considered ceding Kashmir in favor of Hyderabad. The tribal invasion supported by Pakistan ultimately compelled Maharaja Hari Singh to seek India’s protection. J&K, along with Junagadh and Hyderabad, was among the few princely states that delayed their accession beyond August 15, 1947. Junagadh eventually acceded to Pakistan, but India managed to regain control.

The 2023 Supreme Court judgment was criticized by legal experts like Fali S. Nariman and Madan Lokur. The majority opinion concluded that J&K did not maintain any sovereignty, despite its separate Constitution established by its own Constituent Assembly. Article 370 allowed the President to make it inoperative with the Constituent Assembly’s recommendation, which was no longer possible after its dissolution in 1957. However, the ruling stated this did not restrict the President’s plenary power.

Justice Kaul disagreed with Justice Chandrachud regarding the issue of sovereignty, arguing that J&K retained an element of internal sovereignty acknowledged by Article 370. To address the absence of the Constituent Assembly, the Union Government issued a Presidential order in 2019 to reinterpret Article 367, effectively replacing references to the Constituent Assembly with the State’s Legislative Assembly. This action allowed the Indian Constitution to be extended to J&K, rendering Article 370 inoperative. The state was then bifurcated into two Union Territories under the Jammu and Kashmir Reorganisation Act of 2019. Critics point out that the Union Parliament assumed the State Legislature’s role while J&K was under President’s Rule, raising concerns about the implications of this constitutional maneuvering.

The Basic Structure Doctrine (BSD) established in the Kesavananda Bharati case asserts that core constitutional principles cannot be amended. The 2023 ruling claimed Article 370 was not subject to BSD, allowing it to be disregarded. While the court found no evidence of mala fide intent in the Union Government’s actions, this raises questions about the intent and implications of the ruling. Concerns have emerged regarding other special provisions in the Constitution, such as Articles 371A (Nagaland) and 371F (Sikkim), particularly given Sikkim’s unique circumstances of joining India.

In contrast, the U.S. Constitution recognizes Native American rights, safeguarding their territories and governing systems, which serves as a model for accommodating diverse populations. The official dialogue surrounding indigeneity in India requires expansion, using Justice Markandey Katju’s 2011 ruling on Adivasi rights as a foundation for a more inclusive discussion.

Current Indo-Naga negotiations highlight ongoing political tensions regarding flags and constitutions, reflecting broader demands for enhanced federal autonomy across Northeast India. The discourse surrounding federalism in India remains active, with organizations like the Coalition for Indigenes’ Rights Campaign (CIRCA) advocating for a restructuring of the Constitution to address specific local challenges. The historical context of Manipur’s governance, which included representation from minority communities, could provide valuable lessons for fostering coexistence in ethnically diverse regions.

India, as a relatively young democracy, must cultivate constitutional morality that embraces diversity and safeguards vulnerable populations. Expanding the Basic Structure Doctrine to encompass these complexities is essential for fostering a more inclusive political environment.