The Courts and the Constitution – 2023 in Review, Panel 2: Developments In Indian Federalism



The second panel, “Developments in Indian Federalism”, featured insights from four speakers — Mr. Alok Prasanna Kumar, Mr. Shadan Farasat, Dr. Sudhir Krishnaswamy, and Ms. Snigdha Singh—on legal and constitutional issues related to India’s federal structure and recent Supreme Court decisions. Mr. Kumar highlighted the Supreme Court’s divergent views on Article 370 and the two Delhi cases, stressing the importance of understanding India’s asymmetric federalism, while Mr. Farasat discussed federalism’s implications on political space, criticizing the targeting of opposition parties and the erosion of fair electoral practices. Subsequently, Dr. Krishnaswamy analyzed recent jurisprudential developments, focusing on Union Territories transitioning into States and Article 370’s abrogation. Lastly, Ms. Singh examined federalism’s constitutional essence after Article 370’s abrogation, raising concerns about the misuse of constitutional powers and Jammu and Kashmir’s altered statehood under Article 3 of the Constitution.

Speaker 1 – Mr. Alok Prasanna Kumar (Co-Founder and Lead, Vidhi Centre for Legal Policy)

Mr. Kumar highlighted significant legal and constitutional issues concerning the Indian federal structure, focusing on recent Supreme Court (“SC”) decisions regarding Article 370 and the status of Delhi. He lamented the fact that the SC, who has underscored federalism and democracy as basic features of our Constitution multiple times, decided to abandon them for the people of Jammu and Kashmir. He then noted that it was pertinent to understand why the apex court took such divergent views on Article 370 and the Delhi Case, both involving questions of federalism. He noted that trivial observations such as the difference in the facts of the two cases or composition of the bench fails to explain this divergence, and he urged one to ask more profound questions about the nature of India’s federalism.

The first question was on asymmetric federalism, i.e., the idea that not every state has the same relation with the Union, and the importance of preserving India’s federal system. The second question explored the fact that India’s federalism falls on a spectrum – we have Union Territories (“UTs”) like Lakshadweep, which are “pure” UTs on one end, and Jammu and Kashmir, which was more than a State on the other end of the spectrum. He then analyzed the SC’s decision on Kashmir and Delhi’s status, considering these two questions.

Delhi, according to him, falls somewhere in between this spectrum. The two Delhi cases (decided in 2018 and 2023) hinged on the interpretation of Article 239AA. They showcase the tussle between the State Government and the Lieutenant Governor, the latter appointed directly by the Union Government. Overturning the Delhi High Court’s ruling, the SC held that Delhi’s Legislature has plenary powers. This means the Delhi Executive also has plenary powers, not as much as any other State but much more than any UT. To arrive at this conclusion, Mr. Kumar noted how the Court held Delhi’s status to be constitutionally protected, not just by Article 239AA, but also via two crucial basic structure concepts that are fundamentally interrelated– federalism and democracy. Consequently, it held that the elected representatives must be given real powers to perform their duties as representatives, and thus ruled in favor of the State.

On Jammu and Kashmir, Article 370(3) allowed the President to abrogate Article 370 with the concurrence of the Constituent Assembly of Jammu and Kashmir. However, since no Constituent Assembly in Jammu and Kashmir has existed since 1957, the government tried to amend Article 368 and read “Constituent Assembly” in Article 370(3) as “Legislative Assembly”. Since at that point, the state did not have a Legislative Assembly then, the Parliament exercised such powers under Article 370(3). According to Mr. Kumar, while the Court found such a circumvention ridiculous, it said the government could ignore the proviso and the concomitant requirement for concurrence.

Mr. Kumar found that the Court’s decision was based on a rather dishonest reading of history. It underscored Kashmir’s integration into India but failed to look at events beyond that. He noted how the argument that Article 370 is temporary, falls apart when we examine post-integration history. The dissolution of the Constituent Assembly of Jammu and Kashmir made Article 370 permanent, which the Court had failed to grasp. Additionally, the Court also failed to address how this abrogation is acceptable within the frameworks of federalism and democracy, which the same Court had upheld as fundamental basic features of the Constitution in the Delhi cases. In his view, this is an abdication of judicial function.

Through such an analysis of these two cases, Mr Kumar concluded by raising a provocative question: will the court apply the same reasoning to the peripheral northeastern states of Nagaland and Mizoram?  In contrast, what about states like Madhya Pradesh or Tamil Nadu? Through such questions, he observed that there is a core of India to which federalism and democracy apply, such as Delhi. This is contrasted with peripheral units of India, such as Jammu and Kashmir, where such constitutional principles go for a toss, and the aim is integration. He viewed this as a problematic reading, underlining that asymmetric federalism is not simply an intermediate step to full integration but it is a more fundamental concept on how the Union must treat all States.

Speaker 2: Mr. Shadan Farasat (Advocate, Supreme Court of India)

Mr. Farasat began by raising a question – why do citizens (in for instance  Delhi) vote overwhelmingly for one political party in state elections and another in the national elections?  He tied this to the fact that “We the People” expresses two different meanings in two federal elections, highlighting people’s priorities and preferences. Borrowing from Dr. B.R. Ambedkar, he noted that the distribution of power between those two sets of government, the Union and the State, is constitutionally provided, as a part of India’s federalism. He highlighted the Delhi case (discussed previously) to underscore the enormous stress on federalism and an instance where the SC performed its duty of upholding this concept.

He further observed that the survival of federalism depends on a multiplicity of voices and federalistic space, with people having a “real choice” in Centre and State elections. However, we are increasingly observing opposition spaces of political parties being targeted, limiting their ability to compete and offer a meaningful choice to people. He also elaborated on central agencies and their exploitation of power. To illustrate this point, he gave the example of the Central Bureau of Investigation (“CBI”) and its functioning. CBI’s powers to investigate in a state is subject to the state’s concurrence. The Constitution envisaged a situation where a federal investigative agency ran havoc on states, thus mandating such state consent. However, despite many states withdrawing their consent recently, the CBI continued investigating. He says the real issue is the inherent risk of destabilisation via such practices.

Connecting such tendencies to the current election time, he alluded to the instance of a sitting Chief Minister’s arrest and questioned the premise of free and fair elections. While he accepted that elections are free (everyone can vote and participate), they are unfair. Fair (in the context of the widely used phrase “free and fair”) has an independent meaning and entails a level playing field. However, the SC has fallen behind the curve in correcting such unfair practices as seen in cases like Vijay Madanlal Choudhary v. Union of India, where the Court upheld various provisions of the draconian Prevention of Money Laundering Act, 2002.

Fourteen opposition political parties went to the SC last year with data showcasing the blatant misuse of central agencies to target opposition parties. However, he believed that such individual cases do not solve systemic problems. Instead, we must consider our direction in having a truly federalistic space, and the SC must more proactively draw lines of demarcation between the Centre and states to prevent such abuse. 

In conclusion, Mr. Farasat highlighted how most substantial contentious constitutional law cases are handled only by the SC, and the HCs have stopped dealing with them. This contributes to the erosion of federalism since jurisprudence at the level of HCs is also important in maintaining the demarcation of power between the Centre and State.

Speaker 3: Dr. Sudhir Krishnaswamy (Vice-Chancellor, NLSIU)

Dr. Krishnaswamy presented an overview of the developments over the past year and analyzed how the jurisprudence developed would affect the ideal of federalism in the future. He began with a pertinent observation – while federalism concentrated on the story of Article 356 up to the 2000s, many other factors frame the discourse on federalism today. To elaborate on the same, he presented a review of cases dealing with the transition of a UT into a state. For this, Dr. Krishnaswamy took the case studies of Puducherry and Delhi.

He distinguished Article 239AA for Delhi, from Article 239A for Puducherry. According to him, the former is more complicated. 239AA provides for a Council of Ministers, with the Chief Minister at the head to “aid and advise” the Lieutenant Governor in the exercise of their functions. It further divides certain subject matters between the Union and Delhi. Such provisions are reminiscent of the colonial regime’s diarchy. In examining why such a model was chosen, Dr. Krishnaswamy notes this is perhaps due to Delhi’s unique status as the capital of the state. On the other hand, the constitutional question regarding the special provision for Puducherry is much narrower in scope. The question with respect to 239AA is whether the aid and advice provision is similar to the provision for governors in other Indian states or special. The answer to this question continues to remain a site of constant struggle for courts. 

Dr. Krishnaswamy then moved on to Article 370. He pointed out that converting Jammu & Kashmir from a state into a UT is a unique case, with a state being converted to a UT for the first time. It was assumed until now that such a conversion is not constitutionally possible, given that UTs were understood as transitionary States, which would eventually become states. While the Court dismissed this as a trivial observation, according to Dr Krishnaswamy, this represents a deeper constitutional tussle that might erode the federal scheme. With the Article 370 judgment, it is now constitutionally valid for the Union to convert states to UTs unilaterally. Such a phenomenon is unparalleled in any federal scheme because federalism assumes the identity of units to be sacrosanct.

Dr. Krishnaswamy then spoke about a second cluster of cases meriting attention: those relating to Article 200. Article 200 delineates the powers of Governors. He made an interesting observation, that while previously we considered Article 200 as a provision pertaining to day-to-day administration and not a key constitutional issue, it now represented a major faultline in our federal relationship. This is borne out by the recent issue across India of Governors not granting assent to bills passed by the State Legislative Assembly. He cited examples from Kerala and Tamil Nadu in support of this claim, where the Governor was ‘squatting’ on bills. 

Lastly, he touched on aspects of fiscal federalism, which comprise a big chunk of the federalism tussle. He elaborated on how our understanding of taxing power has substantially changed, particularly after the 15th Finance Commission and the GST system. These include problems of imposing cesses outside the GST regime and issues with the distributive formula between States. He mentioned the high stakes for states on such issues, and the ominous nature of Entry 54 in List 1, which removes states from their taxing power.

Dr. Krishnaswamy concluded by stating that federalism in contemporary times has taken a constitutionalist tone. The sustenance and success of the Constitution will depend upon the survival of federalism, with the latter acting as a bulwark protecting constitutionalism and democracy.

Speaker 4: Ms. Snigdha Singh (Assistant Professor, Christ University)

Ms. Singh spoke about the impact of Article 370’s abrogation. While a lot has changed over the years in terms of the political structure and constitution, what should not change, in her opinion, is our understanding of constitutional essence. The SC has repeatedly reiterated the federal nature of the Constitution, and she argued that federalism cannot be reduced to mere administrative convenience.

She then briefly summarized the developments around the removal of Article 370, including the Government’s proclamation under Article 356 and subsequent dissolution of the State Legislative Assembly, the two Presidential Orders (which extended the entire Indian Constitution to Jammu and Kashmir), and the Reorganisation Bill splitting Jammu and Kashmir into two UTs.

She explored the implication of using Article 3 to extinguish statehood. Article 3 gives power to the Parliament to alter State boundaries. The proviso provides for obtaining the state’s opinion on such alterations. However, the opinion is itself non-binding. She noted that under the second clause of Article 3, no bill increasing or decreasing Jammu and Kashmir’s area can be introduced without the consent of the State Legislative Assembly. Due to the imposition of Article 356, this second clause was suspended via a constitutional order, and all provisions of the Constitution were made applicable.

Ms. Singh posed two questions: Firstly, is a reorganization of states permissible under Article 3? This was unanswered by the apex court. A linked sub-question was whether the Solicitor General’s assurance of restoring statehood creates any practical obligation, as his assurances are not binding on successive governments. 

Secondly, could the Parliament have substituted the views of the State Legislature for its own?  She noted that the views of a State under Article 3’s proviso are not binding and cited Babulal Parate v. State of Maharashtra. Hence, the parliamentary exercise of power under Article 3’s proviso was valid and not malafide. However, she argued that a healthy Constitution prevented its misuse. While Article 3 has always been anti-federal in structure, it was never anti-federal in spirit because no other government had used its powers unilaterally to alter the very statehood of a territory. She noted how it was used primarily to satisfy the political demands from the State, until recently where the state’s own consent to such a process were completely circumvented. An underlying current to Article 3 was that the Union and States are placed on an equal pedestal. She argued that via this judgement, the Court set a perilous precedent, giving the Centre a free pass to destroy the autonomy of a State using Article 356.

Ms. Singh concluded by observing that the Court is the Constitution’s guardian and the institution of last resort. Thus, such judgements heavily affect the constitutional principles of democracy and federalism.

Written by: Akarshi Narain

Edited by: Rujul Arora

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