In India’s constitutional order, the adjudication of contested questions of law and rights is the responsibility of independent courts. Where a dispute arises about the validity of a legislation or government action, it falls on the courts, especially superior courts such as the Supreme Court (SC) and high courts in the exercise of their writ jurisdiction, to determine authoritatively the outcome of the dispute and provide clarity in law.
This duty becomes all the more imperative when issues of legislative competence and interpretation of constitutional provisions arise for adjudication. In light of this exclusive jurisdiction, can a constitutional court shun its responsibility of adjudicating the validity of a law by merely citing a concession by a government and its law officer?
In the Article 370 judgment, the Constitution bench refrained from adjudication on the merits of the correctness of the J&K Reorganisation Act 2019 and the bifurcation of the erstwhile state of Jammu and Kashmir into two Union Territories (UT).
Its detailed erudite judgment answers almost every complex question of law involved, except one on whether Parliament can extinguish the character of statehood by converting a state into one or more UTs. “In view of the submission made by the solicitor general that statehood would be restored of J&K, we do not find it necessary to determine whether the reorganisation of the state of J&K into two UTs of Ladakh and J&K is permissible under Article 3,” said the court, adding the scope of Parliament’s power and its impact on the principles of federalism and representative democracy could be decided in “an appropriate case”.
One of the judges on the bench, Justice Sanjiv Khanna, in his short synopsis, went on to assert that the conversion of a state into UT has grave consequences because, amongst others, it denies the citizens of the State an elected state government and impinges on federalism. “Conversion/creation of a UT from a state has to be justified by giving very strong and cogent grounds. It must be in strict compliance with Article 3 of the Constitution of India,” said the judge although he eventually remained in unison with the other judges on the bench that the Union government’s statement about restoring the statehood to J&K, albeit without any binding commitment or a deadline, was a sufficient reason not to dwell on the issue any further.
Abdicating its constitutional responsibility to decide a substantial issue that was intrinsic to complete determination does not augur well with the duty cast upon the highest court of the land to authoritatively determine the sanctity of an action, which not only has the principles of federalism at its core but also involves a pivotal constitutional provision that can impact statehood.
It hasn’t always been thus.
In The Collector of Customs, Madras Vs Nathella Sampathu Chetty and Anr (1961), a five-judge bench of the SC was unequivocal: While the possibility of abuse of a statute alone does not impart to it any element of invalidity, the converse must also follow that a statute which is otherwise invalid cannot be saved by its being administered reasonably. “The constitutional validity of the statute would have to be determined on the basis of its provisions and on the ambit of its operation as reasonably construed,” said the verdict.
In Shreya Singhal (2015), something similar happened. The SC struck down draconian Section 66A of the Information Technology Act for being “unconstitutionally vague” and “arbitrary” even though the central government gave a repeated oral assurance that the provision, which authorised the police to arrest people for social media posts construed offensive or menacing, would be administered in a reasonable manner and would not be misused.
The SC held that if Section 66A is otherwise invalid, it cannot be saved by an assurance from the government. “Governments may come and governments may go but Section 66A goes on forever. An assurance from the present government even if carried out faithfully would not bind any successor government. It must, therefore, be held that Section 66A must be judged on its own merits without any reference to how well it may be administered,” noted the top court as it went ahead and declared the provision unconstitutional.
The SC failed to follow its own dictum of Shreya Singhal in the Article 370 judgment.
Usually, the Court would rely on the oral assurance of counsel at an interim stage of the adjudication of a contested legal dispute. An oral statement or a concession is rarely used at the stage of final determination, and even rarely so in cases of high constitutional importance. There are salutary reasons for this, in addition to those pointed out in the judgments mentioned above. The judgment of the SC is binding on all courts in India (Article 141). And every authority in India is duty-bound to carry out the judgment of the apex court (Article 144). Thus, an oral assurance by a counsel, even if he is the second highest law officer in the country, is a poor substitute for judicial reasons that act as a guiding light to all courts and authorities in the country.
Further, when a law purports to authorise the imposition of restrictions on the working of federal units in a representative democracy, a final determination should not be deferred for a more “appropriate case”.
Government concessions ought not to substitute for the judicial and jurisprudential voyage that a constitutional court must undertake when called upon to determine issues pertaining to the concepts of federalism and democracy, envisaged by the Constitution as the basic structure, cornerstones of our Constitution and polity.
The views expressed are personal
Utkarsh Anand is Legal Editor at the Hindustan Times. He writes on law, judiciary and governance. ...view detail
The unanswered question in the Article 370 order
11
6
13.12.2023
In India’s constitutional order, the adjudication of contested questions of law and rights is the responsibility of independent courts. Where a dispute arises about the validity of a legislation or government action, it falls on the courts, especially superior courts such as the Supreme Court (SC) and high courts in the exercise of their writ jurisdiction, to determine authoritatively the outcome of the dispute and provide clarity in law.
This duty becomes all the more imperative when issues of legislative competence and interpretation of constitutional provisions arise for adjudication. In light of this exclusive jurisdiction, can a constitutional court shun its responsibility of adjudicating the validity of a law by merely citing a concession by a government and its law officer?
In the Article 370 judgment, the Constitution bench refrained from adjudication on the merits of the correctness of the J&K Reorganisation Act 2019 and the bifurcation of the erstwhile state of Jammu and Kashmir into two Union Territories (UT).
Its detailed erudite judgment answers almost every complex question of law involved, except one on whether Parliament can extinguish the character of statehood by converting a state into one or more UTs. “In view of the submission made by the solicitor general that statehood would be restored of J&K, we do not find it necessary to determine whether the reorganisation of the state of J&K into two UTs of Ladakh and J&K is permissible under........
© hindustantimes
visit website
login
who are we?
contact us
qosheapp
Toi Staff
Gideon Levy
Belen Fernandez
Andrew Mitrovica
Mort Laitner
Rami G Khouri
Ali Fathollah-Nejad
Nikkei Editorial
