The abrogation of Article 370 by the Central government has caused ripples across the political fraternity, with major support on one side and minor yet vociferous opposition on the other. The legal community too, has not remained untouched by it and Constitutional experts are divided in their opinion regarding the question of the constitutionality of such a move.
What will be curious to watch is how the Supreme Court responds to such a move. Several petitions have been filed in the Supreme Court, including by the National Conference, assailing the constitutional validity of the Presidential Order which resulted in the abrogation of Article 370.
The response of the Supreme Court is much awaited, given the political ramifications of such a judgment. At this stage, one may simply ask why it is even a matter of concern, as it is ‘only’ a legal question anyway.
This method of thinking, often referred to as ‘affect heuristics’, tends to ignore the fact that the Supreme Court is a political institution too, despite being the interpreter of law. This is because of the discretion which lies with the judges in deciding a case, more so when two different judgments, both of which seem plausible and legally defensible at first blush, can be arrived at.
At this stage, it is worth recalling the American doctrine of ‘political thicket’ which was propounded by Justice Felix Frankfurter, Association Justice of the US Supreme Court in Colegrove v Green.
“Courts ought not to enter this political thicket… The Constitution has many commands that are not enforceable by courts, because they clearly fall outside the conditions and purpose that circumscribe judicial action… The Constitution has left the performance of many duties in our governmental scheme to depend on the fidelity of the executive and legislative action, and ultimately, on the vigilance of the people in exercising their political rights.”Justice Felix Frankfurter, Association Justice of the US Supreme Court in Colegrove v Green.
Can Courts Decide Matters Political?
This doctrine has been rejected by the Indian Supreme Court as non-applicable to the Indian Constitution and later by the US Supreme Court as well in Baker v Carr. This clearly establishes that the Indian Supreme Court can go, and in fact, often goes into political questions where the interpretation is political.
In such a scenario, where the judiciary can enter the political domain and in India, where the Supreme Court is quite frequently called upon to adjudicate upon political matters, a recent example being the Karnataka MLA Defection case, independence of the judiciary becomes paramount.
One may recall how the elevation of Justice KM Joseph to the Supreme Court was sought to be stalled by the Central Government.
Justice KM Joseph had overturned the Presidential Rule in Uttarakhand during BJP’s regime when he was the Chief Justice of the Uttarakhand High Court. Similarly, the appointment of Justice Akhil Qureshi as Chief Justice of the Madhya Pradesh High Court is pending before the Centre after being recommended by the Supreme Collegium.
Gujarat High Court Bar Association has alleged that this is done because Justice Qureshi had passed a detention order against Amit Shah in 2010. These incidents serve as a reminder that the judiciary is not absolutely independent and their opinion may be subject to influence by such attempts. This becomes more relevant given the Central government had made the issue of the abrogation of Article 370 as one of the prime promises in their election manifesto. Any decision by the Supreme Court where it declares the Presidential Order abrogating Article 370 as unconstitutional may cause huge embarrassment for the government.
Where Politics Failed, Courts Stepped in
This is not to contend that the judiciary is totally subservient to political compulsions. One may recall the famous dissent of Justice HR Khanna during the brute majoritarian rule of Indira Gandhi, or the Supreme Court quashing of the President’s Rule in Arunachal Pradesh and Uttarakhand, or the recent dissent of Justice DY Chandrachud in the Aadhar Case, or the disqualification of Indira Gandhi by Justice Sinha of the Allahabad High Court.
At the same time, judges have been accused of siding with the government, owing to their political inclination and tendencies. It is worth recalling the press conference of the four senior-most judges of the Supreme Court during the tenure of CJI Dipak Misra. These judges have been accused of allocation of the Bench for a favourable outcome, depending on political pliability and inclination.
In the present case, opinions holding the abrogation of Article 370 as both constitutional or unconstitutional are possible.
The side holding the abrogation of Article 370 as unconstitutional may argue that changes to Article 367 in order to abrogate Article 370 is a colourable exercise of power because of the power vested with the Constituent Assembly of the state of J&K.
The proper procedure would have been to constitute a Constituent Assembly, and limited power by the interpretation of Article 367 to not have been used to alter Article 370 itself. Some may even invoke the basic structure doctrine.
On the other side, arguments lie for the constitutional validity of the move as well. It may be argued that Article 370 does not form a part of the basic structure and was meant to be a temporary provision only. Further, Article 370(1)(d) was used for interpretative purposes only to add to Article 367. It does not amount to amendment, and, by virtue of application of the remaining provisions under the Constitution, the amendment was carried on, where both Houses of the Parliament approved the move and subsequently the President assented to it.
Foregoing discussion brings to light that both sides may be adjudged as valid, and it depends on towards which side of the spectrum the judge is more inclined. This is also affected by several factors which may fundamentally touch the judiciary. It is thus clear that what comes out as a judgement of the court is not merely a legal exercise of legal interpretation.
Much rests upon the political leanings of the judges and how the courtroom politics frames the same. The question of the validity of the abrogation of Article 370 will truly test the public image of the Supreme Court, which is the most trusted public institution in the country after the Army.
(Snehil Kunwar Singh is enrolled in the BA LLB (Hons) programme at National Law School of India University, Bengaluru. This is an opinion piece, and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)