In the Supreme Court of India
| NAME OF THE CASE | Dr. Shah Faesal and Ors. vs. Union of India and Anr. |
| DECIDED ON | 2 March, 2020 |
| APPELLANTS | Dr. Shah Faesal and Ors. |
| RESPONDENTS | Union of India and Anr. |
| BENCH / JUDGES | Hon’ble Justice S. Kant, Hon’ble Justice B.R. Gavai, Hon’ble Justice R.S. Reddy, Hon’ble Justice S.K. Kaul, Hon’ble Justice N. Ramana |
| LEGAL PROVISIONS | Article 370 of the Indian Constitution |
INTRODUCTION
The State of Jammu and Kashmir was given special status under Article 370 of the Indian Constitution within the Indian Union. According to Article 370(1)(b), the Union Parliament could legislate for the state of Jammu and Kashmir only on certain matters mentioned in the Instrument of Accession—namely defense, foreign affairs, and communications—”in consultation with the Government of the State.” Apart from these matters, the Union Parliament legislative provisions on other remaining matters could apply to Jammu and Kashmir only with the “concurrence of the Government of the State” through a presidential order. Consequently, the State of Jammu and Kashmir adopted its own Constitution, which was formally enacted on November 17, 1956, and came into force on January 26, 1957.
Article 370(3) of the Indian Constitution empowered the President of India to amend or repeal Article 370 through a public notification, provided that the “recommendation of the Constituent Assembly of the State” was given before issuing such a notification. Exercising these powers, the President, on the recommendation of Parliament, declared that all clauses of Article 370 would cease to be operative from August 6, 2019.
FACTS
The case of Dr. Shah Faesal and Ors. vs. Union of India and Anr. is significant as it revolves around the Article 370 of the Indian Constitution which is considered as the bone of contention between the central government and the Jammu and Kashmir Stae government. The President of India passed an order named “The Constitution (Application to Jammu and Kashmir) Order”, on August 5, 2019, to abrogate Article 370, which provided special autonomy to Jammu and Kashmir (J&K), further reorganizing the state of J&K into two Union Territories (UTs), namely the Union Territory of Jammu & Kashmir and Union Territory of Ladakh. The government said that this decision would enable J&K to be better integrated with the rest of India, and this would bring about good governance, peace, stability, and development in the area.
This abrogation sparked a significant amount of controversy and resulted in numerous incidents. To avoid any potential violence and unrest, the government enforced a strict lockdown, which included restrictions on communications. It also imposed restrictions on political leadership movements, assemblies, and detentions.
The petitioners, including Shehla Rashid, a JNU graduate and Dr. Shah Faesal, who was a former bureaucrat turned politician, contested this action of the government in the Supreme Court of India. They made out a case that the modification in Article 370 was unconstitutional, as its very process bypassed requirements for recommendation by the J&K Constituent Assembly and violated the fundamental rights including freedom of speech and movement. The petitioners even argued that the reorganization of a state does not fall within Parliament’s legislative competence. The matter was first heard by 3 judges bench headed by then Chief Justice Ranjan Gogoi, then afterwards it was sent to a constitutional bench composed of Justice NV Ramana, Justice SK Kaul, Justice R. Subhash Reddy, Justice BR Gavai, and Justice Surya Kant.
ISSUES RAISED
1. Constitutionality of the Presidential order and Parliamentary resolution deleting provisions in Article 370 was challenged.
2. Legislative Competence: Did the Parliament have the power to reorganize the state of Jammu and Kashmir into two Union Territories without the approval of Jammu and Kashmir State Legislative Assembly ?
3. Federal Structure: Did Article 370’s abrogation violate the Indian Constitution’s federal structure?
4. Violation of Rights: Did the Indian government have the right to restrict people’s freedom to communicate and their ability to access work or livelihood by keeping them confined to their homes?
CONTENTIONS
Petitioners’ Contentions:
1. Unconstitutional Procedure: The petitioners argued that the abrogation of Article 370 was not in accordance with the Constitution. When it comes to Article 370, the only part that doesn’t have a set end date is clause (3). This part says that an amendment can be made to get rid of or change the status quo if there is a presidential order to do so, but it must first get approval from the Constituent Assembly of Jammu and Kashmir elected by the people of the state.
2. Parliament could not have been the authority: The petitioners contended that Parliament was incompetent to divide the state into Union Territories, since it wanted the concurrence of a house that did not exist as there was no elected Jammu and Kashmir Legislative Assembly in place.
3. Central Dominance: The abrogation of Article 370 undermines the federal character of the Constitution of India as the centre unilaterally took the decision without consulting the state government and thus, harming the federal balance between the centre and the state.
4. Infringement of Fundamental Rights: The petitioners argued that the complete communication clampdown and restrictions on movement, interaction, and meetings violated various basic rights, including freedom of speech and expression, the right against life, and personal liberty.
Respondents’ Contentions:
1. Opinion of the Respondents on Presidential Powers: According to the respondents, the President of India had the authority to amend the Jammu and Kashmir special status under Article 370(1)(d); therefore, abrogation on this count is justified.
2. Legislative Competence: Respondents argued that since Parliament has the right to reorganize the states under Article 3 of the Constitution, dissolution of the state legislative assembly does not impede its ability to do so.
3. National Political Security: According to the respondents, the purpose of a communication blackout and movement restrictions is to uphold national security by preventing further violence and unrest.
RATIONALE
The Court first dealt with the extent of the president’s powers under Article 370(1)(d): “The president may, by order, declare that this article shall cease to be operative or shall apply only… as modified.” The Court upheld the process of abrogation of Article 370 and held it to be constitutionally valid, considering the historical context and the the temporary nature of Article 370.
Secondly, the Court weighed up whether measures taken by the government, including a communication blackout and restrictions on movement, were necessary and proportionate. The Court then weighed these measures against the risk of violating fundamental rights such as freedom of speech and expression or personal liberty. Consequently, the court justified these actions of the government as necessary and taken in accordance with the circumstances that existed.
The Court then addressed the issue of Federalism. The Court tested whether the abrogation and conversion of the state were in opposition to the principles of federalism in India. Also, the Court examined whether Parliament has the legislative power to convert the state into union territories unilaterally when the Jammu and Kashmir Legislative Assembly was dissolved. The Court did not encouraged the centre to convert the state of Jammu and Kashmir into Union Territories. Article 3 of the Indian Constitution talks about the formation and alteration of states but it nowhere talks about about converting states into Union Territories. The Central government’s commitment to restore statehood of Jammu and Kashmir marks the preservation of India’s federal structure.
DEFECTS OF LAW
1. Legal Ambiguities: For reorganization of J&K into Union Territories, the governor and legislature of state should consult with one another. But the state was without a legislative assembly and an elected government at that time as the BJP pulled out of its alliance with the PDP. The Jammu and Kashmir governor issued orders regarding local body elections that followed the order on his authority strength, leaving questions about how genuine or competitive this process could be.
2. Federalism vs. Central Authority: The decision to abrogate Article 370 again brings back the theme of federal proportionality with central authority. Many in the country viewed the central government’s move as a serious overreach and referred to it as an ‘assault’ on federalism. The Court then raised questions about the extent of power with which the central government can change a state’s constitutional status and boundaries without their consent, thereby altering the balance of power between union-state relations.
3. Violation of Basic Rights: The other important question raised was regarding human rights violation during communication blockade and severe restrictions on movements and gatherings. Critics argue that these actions violate civil liberties, and many say that the rushed implementation of some measures was merely due to the longstanding desire to curb protests. The government supporters used national security as an excuse for more strict procedures that were needed to keep things running smoothly. However, the right groups argued that such measures have exceeded the reasonable limits.
4. Judicial Review and Constitutional Interpretation: This case not only highlights a wider issue of judicial review, but also underscores the importance of the judiciary’s involvement in interpreting constitutional provisions.
In conclusion, the ruling in the Dr. Shah Faesal and Ors. vs. Union of India and Anr. case highlights numerous legal and constitutional issues that require correction for increased clarity, equity, and protection of due process, which serves as the fundamental sanctioning basis for the Indian justice system. The decision of the court also affirmed that Jammu and Kashmir is an integral part of India as supported by the historical documents like the Instrument of Accession and speeches in the Jammu and Kashmir Constituent Assembly. The court focused on the importance of elections to restore the representative character of the democracy.
INFERENCE
The Supreme Court’s decision in Dr. Shah Faesal and Ors vs. Union of India and Anr. (2020) is a landmark verdict that has significant implications for the Constitutional and Federal Structure of India, as well as the right to freedom of speech and expression. There is a lot of scope to critically examine this judgment, both from a legal and a sociopolitical perspective.
Article 370: Constitutionality and Interpretation
The abrogation of Article 370 was a milestone in the constitutional relationship between Jammu and Kashmir and the Union of India. The Supreme Court had upheld the government’s actions, particularly focusing on the provision of Article 370(1)(d). However, this case raises questions about history and Article 370’s provisional nature. The provision aimed to promote Jammu and Kashmir’s autonomy process until the Constituent Assembly made its final decision. Endorsing a significant alteration in the status of Jammu and Kashmir was an indirect violation, as it did not explicitly seek permission from the people or their representatives, thereby giving significant meaning to the president’s powers. The proposal for a very significant constitutional amendment also seriously questions its democratic legitimacy.
A Balance of Power and Federalism
The judgment underscores the perpetual struggle between federalism and central authority in India. The reorganization of state of Jammu and Kashmir into two Union Territories without state legislature consultation sets a dangerous precedent. Federalism forms the cornerstone of the Indian Constitution and serves as an effective means to balance state autonomy with union supremacy. The Court’s decision to uphold reorganization could potentially be interpreted as centralizing or acting in a manner at variance with the federal principle of our Constitution. It demonstrates the necessity of finding a balance between state sovereignty and national interests.
Fundamental Rights:
The government argued that imposing a communication blackout and movement restrictions in Jammu and Kashmir after the abrogation of Article 370 was necessary for national security. While national security is of utmost importance, we must closely examine the proportionality and necessity of such extensive restrictions. This included the long-lasting internet blackout, which had overwhelming socio-economic and psychological effects on the people of Jammu and Kashmir. The case poses significant questions relating to the applicability of state power and fundamental rights enforcement. Perhaps, the judgment provided the Court with an opportunity to clarify the permissible boundaries of state actions in the name of security, thereby preventing unnecessary violations of civil liberties.
Legislative Authority and Legal Safeguards
Article 3 outlines the type of state reorganization. The President, upon request from affected parties, may recommend changing the area or boundaries of one state while maintaining the provisions outlined in Article 4. The procedural ambiguity has been evident since the court decided to let the reorganization of Jammu and Kashmir continue even though there was no functioning state legislature and asked for a reference from political parties. Some believe this could potentially pave the way for future reorganizations to bypass state legislatures, thereby undermining democratic procedures. Stronger procedural safeguards are crucial to guarantee that significant constitutional changes take place openly, receive democratic approval, and involve the affected states honorably.
CONCLUSION
The verdict in Dr. Shah Faesal & Ors vs. Union of India and Anr. is a nuanced decision that reflects the evolving nature of constitutional law in India. It evokes important questions regarding the conception of Article 370, federalism and centralization, protection of fundamental rights, and procedural safeguards for state reorganization, but it also upholds to some extent what the government did. The case serves as a reminder that India’s constitutional normativity necessitates ongoing vigilance and discourse to remain resilient in the face of changing political realities. This judgment therefore, provides a parting lesson and a challenge for the days to come in India’s constitutional history.
AUTHOR
Sabiya Naz
St. Wilfred Law College, Ajmer