EDITORIAL ANALYSIS : Article 370 judgment is a case of

constitutional monism
insightsonindia.com/2023/12/14/editorial-analysis-article-370-judgment-is-a-case-of-constitutional-monism/

InsightsIAS December 14, 2023

Source: The Hindu

Prelims: Jammu and Kashmir-Issue, article 370, Article 3, Federalism, geographic

location etc
Mains GS Paper II: Importance of Jammu and Kashmir, security concerns, delimitation
Commission etc

ARTICLE HIGHLIGHTS

The Supreme Court unanimously upheld the actions of the government regarding
abrogation of Article 370.

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INSIGHTS ON THE ISSUE

Context

Article 370:

The Constituent Assembly of Jammu & Kashmir was empowered to recommend

which articles of the Indian Constitution should apply to the state.
The J&K Constituent Assembly was dissolved after it drafted the state’s
constitution.
Clause 3 of the article 370 gives the President of India the power to amend its
provisions and scope.

Article 35A:

It was introduced through a Presidential Order in 1954, on the recommendation of the

J&K Constituent Assembly.
Article 35A empowers the Jammu & Kashmir legislature to define the permanent
residents of the state, and their special rights and privileges.
It appears in Appendix I of the Constitution.

Removal of Article 370:

It commenced with a presidential order issued nearly four years ago.

Amendments were made to make applicable the entirety of India’s Constitution to
Jammu and Kashmir (J&K).
The State was also sundered into two Union Territories: J&K and Ladakh.
It was done when the State was under President’s Rule with no elected Legislative
Assembly in place.

How was Article 370 introduced?

The Indian Independence Act, 1947: It allowed the Government of India Act, 1935, to
serve as an interim constitution until the country adopted its own.
The statute permitted princely States to accede to India by executing an instrument
of accession.
In the case of J&K, the instrument came with qualifications that were ultimately written
into Article 370.
It stipulated that Parliament could legislate for J&K only over matters concerning
external affairs, defense, and communications.
Where Parliament intended to legislate over areas otherwise provided for in the
instrument of accession, it could do so by consulting the State government.
where it proposed to enact laws beyond the agreed subjects, it required additional
ratification by the State’s Constituent Assembly.

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 After 1957, when J&K’s Constitution came into force, its Constituent Assembly was
disbanded and replaced by a Legislative Assembly.
Article 370 remained unaltered.
Chief drafter Gopalaswami Ayyangar: He described the State Constituent
Assembly’s recommendation, as mandated by clause (3) to Article 370, as a
“condition precedent” to any effort at abrogating the provision.
After the Constituent Assembly was disbanded, this clause had become
nugatory.

How was it altered?

Part XIX of the Constitution, Article 367 comprises a set of general rules for
interpreting the Constitution.
Through this Article, the President’s order on August 5, 2019, amended with a
view to transforming the existing status of J&K.
It was done by adding a new clause to Article 367: It stipulated that wherever the
term “Constituent Assembly of the State” was used in Article 370, it would now refer
to the “Legislative Assembly of the State.”
The basic thrust of Article 370 was abrogated, without complying with the
precondition that Ayyangar thought obligatory.

What is the Judgement of the Supreme Court?

● Jammu and Kashmir did not Possess Sovereignty:

○ There is much evidence in Article 370 and the J&K Constitution to show that in
regards to Kashmir, a merger agreement was not necessary to surrender its
sovereignty.

Article 370(1) applied Article 1 of the Constitution of India (where J&K was listed as a
Part III State) with no modifications.
Section 3 of the J&K Constitution explicitly states that “the State of Jammu and
Kashmir is and shall be an integral part of the Union of India.”
Section 147 of the Indian constitution prohibited any amendments to Section
3,further making the provision absolute.

Article 370 is a Temporary Provision:

The Constitution framers placed Article 370 with the temporary and
transitional provisions contained in Part XXI.
It pointed out that the Instrument of Accession (IoA) made it “abundantly clear”
that Article 1 which stated that “India that is Bharat shall be a Union of
States” applied in its entirety to J&K.

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 Constitutional Validity of Proclamations Under President’s Rule:
The President has the power to make “irreversible changes, including the
dissolution of the State Assembly.
The President’s powers are kept in check by“judicial and constitutional
scrutiny.”
The Constitution of J&K Stands Inoperative:
It is no longer necessary for the Constitution of J&K through which only
certain provisions of the Indian Constitution applied to J&K, to exist.
Set up a Truth and Reconciliation Commission to Address Human Rights

How did the Court employ a monist reading of the Constitution in the Article 370
Judgment?

● Federalism and constitutional sovereignty:

○ It imagines the Union Constitution as the sole bearer of internal and external
sovereignty.

○ Article 370 laid down an elaborate framework for the distribution of powers and
authority between the Union and the State governments.

By focusing on sovereignty: The Court ends up refusing to recognise the shared

sovereignty model of Article 370.

● The contingency of the presidential power:

○ The Court rejects the argument that Article 370 had gained permanence after the
dissolution of the Constituent Assembly

○ The Court relies on Clause 3 to hold that Clause 1 could be operated without the
concurrence of the State government

○ The effect of applying all the provisions of the Constitution to Jammu and
Kashmir through the exercise of power under Article 370(1)(d) is the same as issuing
a notification under Article 370(3)’.

The President has the untrammeled power to abrogate Article 370: ordering a total
application of the Indian Constitution to the State to the effect that the State’s
Constitution becomes inoperative is an uncontrolled power’.
It defies the logic of federalism and constitutional democracy.

Way Forward

Justice Sanjay Kaul: ‘views are to be taken from the entire nation via the Parliament,
as the issue leading to the reorganization affects the nation as a whole’.

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 The popular sovereignty of a State’s people vis-à-vis the State becomes
subordinate to the popular sovereignty of the entire nation vis-à-vis the Union as well
as the States.
This is worrying in the context of J&K where the threshold for reorganizing the
State was historically much higher compared to the other States.
By relying on a monist reading of the Constitution: The Court has not only upheld
the abrogation of Article 370 but has also put its stamp of approval on the silencing,
and rendering inconsequential, of the voice of the people of the former State of J&K.
India’s Constitution establishes a system of governance, where power and
authority are divided between the Union and the States.
Political scientist Louise Tillin: described this balance as representing a form
of asymmetric federalism
where some States enjoy greater autonomy over governance than others
A feature reflected in various constitutional provisions, especially in
Articles 371 to 371J.

QUESTION FOR PRACTICE

The banning of ‘Jamaat-e – islami’ in Jammu and Kashmir brought into focus the role
of over-ground workers (OGWs) in assisting terrorist organizations. Examine the role
played by OGWs in assisting terrorist organizations in insurgency affected areas.
Discuss measures to neutralize influence of OGWs.(UPSC 2019) (200 WORDS, 10
MARKS)

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