Should Supreme Court have evaded the question of downgrading Jammu and Kashmir to a Union territory?

Among the points of debate sparked by the Supreme Court’s judgment in the Article 370 abrogation case pronounced on Monday is its decision to side-step one of the vital questions posed in the matter: whether the government’s decision to downgrade the state of Jammu and Kashmir to two Union territories is constitutionally permissible.

Article 370 of the Indian Constitution, which was abrogated on August 5, 2019, had given Jammu and Kashmir a certain degree of autonomy within the Indian Union.

The Supreme Court had sat for three years on petitions challenging the abrogation and the decision to strip Jammu and Kashmir of statehood, before finally hearing a battery of lawyers argue against the validity of the moves over 16 hearings in August and September.

However, even as the court’s five-judge Constitution bench ultimately upheld the abrogation, it decided not to deal with the second question because it noted that the Solicitor General of India had assured the court that the statehood of Jammu and Kashmir would be restored in due course.

Is it permissible for courts to evade constitutional questions merely on the basis of assurances from the government? Experts to whom Scroll spoke were divided on this question, as well as on the ramifications of this aspect of the judgment.

Some expressed disappointment at the court’s evasion and said that it provided the government with the perfect pretext to get away with potential constitutional violations. But others said such fears were misplaced.

Restoration of statehood

The decision to abrogate Article 370 and downgrade Jammu and Kashmir from a state into a Union territory was announced in August 2019 without any notice, accompanied by a complete communication blackout in the region. Jammu and Kashmir’s special status under Article 370 was revoked by the Union government through a series of executive and legislative measures.

Parliament also passed the Jammu and Kashmir Reorganisation Act, 2019, which divided the state into two Union territories – Jammu and Kashmir and Ladakh.

Since Jammu and Kashmir was under President’s Rule at that time, its legislative assembly had been dissolved. The legislators of the state had not been consulted before these measures were taken by the Modi government.

Subsequently, more than 20 petitions were filed in the Supreme Court by individuals, political parties and civil society organisations challenging the constitutionality of the government’s decision.

In its verdict on Monday, the five-judge bench unanimously upheld the legitimacy of the Union government’s abrogation of Article 370. However, it left the question of the validity of the Reorganisation Act up in the air since the Union government had promised, during the hearings, to restore Jammu and Kashmir’s statehood – albeit without providing a definite time-frame for this.

In its verdict, the court directed the Union government to restore Jammu and Kashmir’s statehood “at the earliest and as soon as possible”.

Courts’ reliance on government assurance

Lawyers to whom Scroll spoke said that it is not irregular for courts to proceed on the basis of assurances or commitments made by the government.

According to lawyer, columnist and author Kaleeswaram Raj, who practices in the Supreme Court and the Kerala High Court, there is nothing wrong in a judgment of the Supreme Court recording an undertaking by the government.

Delhi-based senior advocate Mohan Katarki agreed. “If the government’s assurance is up to the satisfaction of the court, the court may rely on it when passing orders,” he said. “This happens regularly in everyday cases.”

Lawyer and legal academic Professor G Mohan Gopal pointed out that it is the nature of the government assurance that is relevant for the court to make a decision. “What is the legal validity of the assurance?” he asked. “If it is a specific, time-bound assurance, it may find its way in the form of a binding commitment in the court’s judgment. That would be acceptable.”

Katarki noted that statements by the Solicitor General are generally taken seriously by courts.

However, both Katarki and Mohan Gopal acknowledged that in the Article 370 case the Solicitor General’s assurance contained no timeline for restoring statehood to Jammu and Kashmir.

Delhi-based senior advocate Sanjoy Ghose pointed out that a commitment to reversing an action that had been challenged was different from considering the legality of the action. “Merely because a party or state undertakes generally, without any timelines, to undo an action cannot obviate the obligation of a constitutional court to pronounce upon the legality and constitutional validity of an action of the state,” he said.

Raj noted that “the Centre was on a sticky wicket, since a textual reading of Article 3 of the Constitution makes it clear that it doesn’t permit the conversion of a state into a Union territory”.

Article 3 of the Constitution deals with the formation of new states and the alteration of areas, boundaries or names of existing states.

According to him, the best course of action for the court would have been to state this aspect in the judgment and then record the government’s undertaking about the restoration of statehood. “The concession by the Centre was a clever move,” he said. “Realising this, the court should have clarified this apparent position of law and then recorded the assurance by the Centre.”

Possible ramifications

Legal experts differed on the potential ramifications of this judicial evasion for the Supreme Court’s jurisprudence.

Ghose, for his part, was critical of the court. “This is a classic case of abdication of constitutional responsibility and giving the executive an easy pass to avoid the embarrassment of a possible adverse judicial finding,” he said.

Legal academic Anuj Bhuwania was even more blunt in his assessment. He described the repercussions of the court’s circumvention as “catastrophic”. In future, if the state is challenged on an action that is possibly unconstitutional or illegal, “the court could just refuse to tackle the legal question as long as the state counsel gives an assurance that the action may be reversed at some point in the future”, he warned.

Bhuwania noted that this trend of skirting constitutional questions is also evident in how courts have handled habeas corpus cases – that is, cases in which an imprisoned person’s detention is challenged as unlawful. “Allowing the possibility of future release from state detention as adequate remedy, court have been refusing to adjudicate on the legality of the detention itself,” he said.

However, he contended that the consequences in this case are incomparably worse. “Even if statehood is restored, the facts on the ground have been allowed to be changed,” he said. “The state boundaries have been altered.”

Raj, on the other hand, was not as cynical. He said that fears that the state may carry out unconstitutional acts and then get away with them by undertaking to reverse them are misplaced. “If the state does it, it would not be on account of this judgement, but as a result of the state’s aggrandising character,” he said.

Katarki, meanwhile, saw a pathway for the petitioners in the Article 370 matter to press for statehood because of the court’s reliance on the government’s assurance.

“If statehood is not restored within a reasonable time, the petitioners could move an application before the court demanding the restoration of statehood in compliance with its judgment,” he said.