SC verdict on Article 370, and its impact on asymmetric federalism

The Supreme Court’s landmark judgment upholding the abrogation of special status for Jammu and Kashmir has threatened the existence of similar provisions that govern several other states and diluted the asymmetric federal structure of the country, say legal experts and Northeast watchers.

A five-judge Constitution bench presided by Chief Justice of India DY Chandrachud on Monday (December 11) endorsed the Narendra Modi-led government’s 2019 decision to abrogate the Constitution’s Article 370 that granted the special status to Jammu and Kashmir. While pronouncing the verdict, the CJI himself pointed out that Article 370 was a feature of “asymmetric” federalism and not sovereignty. He added: “All states in the country have legislative and executive power, albeit to differing degrees. Article 371A to 371J are examples of special arrangements for different states. This is an example of asymmetric federalism.”

Gujarat, Karnataka, Goa and Telangana also enjoy special statuses.

Experts who spoke to The Federal were of the view that the legal validity given to the abrogation of one set of special arrangements without the consent of the concerned state has opened the scope for arbitrary repeal of other similar special provisions without the nod of the affected state(s).

Article 371 provisions

The articles under the 371 series grant special provisions to 12 Indian states, mostly in the northeast. The purpose of these articles is to protect the economic and cultural interests of the people belonging to backward regions. The clauses under these articles have temporary, transitional and special provisions.

Experts say the future of these special provisions have now become uncertain in the light of the Supreme Court verdict “The verdict will have a far-reaching consequence, particularly in the northeastern region,” said former Nagaland Chief Minister KL Chishi, who is also a lawyer.

“The apex court has set a broad precedent by upholding the manner in which the Article 370 was repealed and the state of Jammu and Kashmir was bifurcated without taking the concurrence of the state. This precedent can now be cited to purge, without the consent of the state assemblies, the special status granted to northeastern states,” he argued.

Nagaland’s resources

The next target for repeal could be the Article 371 (A) because its provisions are preventing the Union government to exploit mineral wealth of the state of Nagaland, particularly oil and gas, observed Thongkholal Haokip, an assistant professor at the Jawaharlal Nehru University’s Centre for Study of Law and Governance.

Oil exploration in Nagaland by ONGC is in limbo for several decades because the local communities claim undisputed rights over the natural resources under the land laws of the state.

The laws pertaining to ownership and transfer of land could not be changed by parliament to facilitate the oil exploration because of the Constitutional protection provided to the state’s land laws under the Article 371 (A). It says “no Act of Parliament in respect of… ownership and transfer of land and its resources shall apply to the State of Nagaland unless the Legislative Assembly of Nagaland by a resolution so decides”.

“This constitutional shield has been weakened now. The Supreme Court verdict essentially could mean the decision of the parliament in deciding the fate of the special arrangements in the Constitution would be paramount, overriding the need to take concurrence of the states,” Haokip added.

Another legal expert and director of the New Delhi-based Rights and Risks Analysis Group, Suhas Chakma, said the verdict will have an implication on the federal structure of the country.

Unitary state?

“The verdict has made India a unitary state. When the reorganisation of a state without its consent by replacing the state assembly by the President is validated, it can have serious implications on the country’s federal structure,” stated Chakma.

Any state of India can now be arbitrarily reorganised and bifurcated because the Supreme Court verdict has set aside the precedent of consent taken from the mother state while creating new states like Jharkhand, Uttarakhand, Telangana and so on and so forth, he elaborated.

Other special provisions under Article 371 series could also be revoked in the manner in which the special arrangements had been done away with in Jammu and Kashmir, he added.

He further dismissed the contention that rights granted under 371 series were more secure because they are special provisions and not temporary one as the apex court declared in case of the Article 370.

“In my opinion it is the other way around. Article 370 came into being out of the J&K Constituent Assembly debate whereas the other special provisions were enacted by parliament. Now, if parliament can take away the right granted by the constituent assembly, it can also revoke the special provisions created by it,” Chakma said.

Parliament’s supremacy

Another legal luminary of the northeast, Hafiz Rashid Ahmed Choudhury, a senior advocate of the Gauhati High Court, agreed that the verdict has upheld the supremacy of Parliament.

“But what would be its implication on other special provisions granted by the Constitution to certain other states needs to be examined by thoroughly studying the judgement. Implications could vary from case to case,” he added.