There is a tradition at the bar that if you are closely involved in a case, you do your talking in court, and not outside it. Over the last year or so, this is a tradition that I have tried to adhere to. For this reason, on this blog, I will not be personally writing critiques of the Supreme Court’s Article 370 judgment. Interested readers can find the arguments that I had a role in shaping in the written submissions filed on behalf of Mr. Gopal Subramanium (on Article 370) and Mr. C.U. Singh (on statehood).
This blog post marks a limited departure from the tradition, for the following reason: in the aftermath of the judgment, a significant part of the analysis and critique in the public domain has focused on the judgment’s implications for the federal structure: on one reading of the majority opinion, it appears to offer a carte blanche to the union during the pendency of a proclamation under Article 356, including making “permanent” changes or alterations. In effect, therefore, states are completely at the mercy of the union once Article 356 is activated, and what was done to Jammu and Kashmir is the thin edge of the wedge that effectively sanctifies the union’s ability to eviscerate the federal scheme through recourse to Article 356.
These concerns are well-founded, and it would be idle to deny that the judgment reflects a pro-centre bias (in this, it is not very different from how the SC has, in general, interpreted the federal scheme, except in terms of degree). However, I believe that this is not the only way to read the majority opinion. Given the stakes involved, I think it important to present the alternative reading, as public perception about what a judgment says and means has a tendency of swiftly crystallising into a kind of constitutional “common sense”, which then affects how future judges and benches understand what the law requires of them.
I will not go into great detail about the majority’s reading of Articles 356 and 357 (interested readers may refer to the judgment itself, and read the analysis alongside the submissions linked above). I will note one crucial point: the majority holds that action taken by the union while it acts on behalf of the state legislature under a 356 proclamation must have a reasonable nexus with the objects and purposes of the proclamation itself. This is important, because the “object and purpose” of a 356 proclamation is constitutionally defined and judicially constrained (in S.R. Bommai’s Case): it is restorative. In simpler terms, Article 356 kicks in when governance in a state cannot be carried on in accordance with the provisions of this Constitution. The task of the union – under 356 – is to restore the state to situation where, once again, governance may be carried on in accordance with the provisions of this Constitution. This necessarily confines the powers exercised by the union to within the four corners of the constitutional scheme, and with a view to restoration. Now, while the latter part of this may be subject to wide interpretation, there can be little doubt that the “object and purpose” of a proclamation under 356 cannot be to alter the constitutional scheme itself, vis-a-vis the state in question. By definition, that would not be “restorative.”
The majority’s holding that “permanent” changes can be made under Article 356, therefore, needs to be understood in this context. “Permanence” can be understood in two ways: in a simply, physical sense (I dam a river, its course is altered, electricity is produced – this is “permanent” and “irreversible”), and in a constitutional sense (that is, irreversible changes to the constitutional structure vis-a-vis the state). I suggest that if the majority’s “object and purpose” test is to have any bite, then “permanence” must only refer to the former kind of change. Any other reading would create an irreconcilable contradiction within the majority opinion.
In sum, therefore, on this reading, the majority opinion in the Article 370 case does not grant the union carte blanche under Article 356. The “object and purpose” test strictly confines the union to only those actions that are designed towards restoring governance in accordance with this constitution, and not irrevocably altering the constitutional structure vis-a-vis the state. Of course, in the course of doing so – and in the course of administering the state – the union will necessarily take certain “permanent” and “irreversible” actions, but that “irreversibility” does not refer to constitutional irreversibility.
Now, how does this square with the majority’s holding (or lack thereof) on the conversion of the state of J&K to a Union Territory? That’s for all of us to try and figure out, I suppose.
One final note on interpretive method: in academic scholarship, there is something called the “principle of charity.” It requires scholars to extend interpretive generosity to their interlocutors, and attempt to understand their argument in its best form. This blog post approaches the majority opinion in that spirit of generosity, attempting to read it in a manner that is most consistent with constitutional norms and principles. I believe that it is important to do so, even when – and especially when – the Court does not extend the same courtesy to those who argue before it; it is, after all, so much easier to caricature an argument that you are looking to reject, rather than to seriously engage with it. But the Court’s propensity to do so does not relieve its interlocutors of their burden of interpretive generosity.
That said, I think it would be denying reality if one is not to acknowledge that at this point, text, structure, precedent, and the canons of constitutional interpretation have become negotiable materials in constitutional adjudication, especially when the constitutionality of acts of State is under challenge. When I offer up this reading of the majority opinion, therefore, I do not offer it with any confidence that a future court will agree with it. We have learnt better. I offer it up because, when that future court sits to adjudicate another instance of federal evisceration (as it undoubtedly well), it will not be absolved of its interpretive responsibilities by claiming that it is “bound” by the Article 370 judgment. That future Court will have an interpretive choice – as the Article 370 Court did – and its decision will be the result of its making a choice. We should all be clear about that.
What choice it will make, of course, remains to be seen. To quote the Supreme Court’s own approach to dealing with complex constitutional issues, “que sera sera.”