A Constitutional BACKSLIDING?

The judgement of the Supreme Court in the Article 370 case heralds an disconnect between ever-increasing constitutional law and constitutional reality in post-colonial India

- Burhan Majid

FOUR years after the unilateral abrogation of Kashmir’s semi-autonomous status, the Supreme Court of India eventually endorsed the Central government’s contentious decision on December 11, 2023. The judgement exemplifies the Supreme Court’s fragmented track record of disengagement with J&K’s unique constitutional position.

For the uninitiated, J&K stands as the only state that actively bargained the terms of its membership with the Indian Union. This exceptional constitutional arrangement reserved J&K’s legislative authority on all matters except defence, external affairs, and communication, which was later codified in Article 370 of the Indian Constitution. Hence, J&K retained a unique and distinct status in the post-colonial Indian landscape, acceding but not merging like other states. Article 370 also recognised the state’s autonomy to frame its Constitution. The December 11 judgement bypassed the Constitution and its precedents. More than the outcome of the ruling, the conspicuous absence of constitutional reasoning in the judgement is baffling. A closer reading of the judgement highlights that the court has complicated a legally easy issue.