Article 370 and Federalism UPSC NOTE

 Key aspects of judgment and impact on center - State

  • In the lead judgment, Chief Justice, writing for himself, pointed out that J&K had divested itself of “any element of sovereignty” after the execution of the Instrument of Accession to the Union in October 1947. 

  • Justices Sanjay Kishan Kaul and Sanjiv Khanna concurred in their opinions

  • Constitutional experts say the observations in the verdict will have a lasting impact on federalism, which is recognised as a basic feature of our Constitution.

  • The petitioners had argued that the President while exercising powers under Article 356 of the Constitution cannot take actions with ‘irreversible’ consequences in a State during President’s rule. 

  • Significant legislative alterations were made to the State during President’s rule such as the repeal of its special status, the separation of Ladakh, and its conversion into a Union Territory. 

  • Which meant that the Union government could unilaterally bring about such enduring changes without having to solicit the consent of the State legislature.

  • The Court reasoned that challenging the exercise of the President’s power on the ground of irreversibility would open the way for challenging everyday administrative actions which would in effect put the administration in the State at a standstill.

  • Underscored that such exercise of power must have a reasonable nexus to the object of the Presidential Proclamation. 

  • It added that the onus was on the person challenging the actions of the President during an emergency to prima facie establish they were a “mala fide or extraneous exercise of power”. 

  • Reliance was also placed on the Supreme Court’s ruling in S. R. Bommai versus Union of India (1994) which defined the ambit of powers that can be exercised during President’s rule.

The Supreme Court rule about the President’s role during President’s rule?

  • The petitioners had pointed out that the proviso to clause 3 of Article 370 makes it clear that the presidential power to abrogate Article 370 was contingent on the recommendation of the J&K Constituent Assembly

  • The Court ruled that even after the dissolution of the Constituent Assembly on January 26, 1957

the President’s power to abrogate the provision by exercising powers under Article 370(3) subsists and could be exercised “unilaterally”. 

  • The Chief Justice asserted that holding the power under Article 370(3) cannot be exercised after the dissolution of the Constituent Assembly.

  • It would lead to “freezing of the integration” contrary to the purpose of introducing the provision. 

  • Justice Kaul emphasised that the purpose of Article 370 was to slowly bring J&K on par with the other States of India.

SC say about restoring statehood to J&K

  • The Court ruled that the President while exercising powers under Article 370(3) of the Constitution can ‘unilaterally’ notify that Article 370 ceases to exist

  • It further said that there was no requirement for the President to secure the concurrence of the State government in this regard as mandated by the provisos to Article 370(1)(d).

  • “The principle of consultation and collaboration underlying the provisos to Article 370(1)(d) would not be applicable where the effect of the provision is the same as Article 370(3). 

  • Since 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) that Article 370 ceases to exist,.

Asymmetric federalism

  • The Court pointed out that unlike the Constitution of India, “there is a clear absence” in J&K’s Constitution of a reference to sovereignty

  • Article 370 was held to be merely a “feature of asymmetric federalism” similar to other provisions in the Constitution such as Articles 371A to 371J.

  • If the position that Jammu and Kashmir has sovereignty by virtue of Article 370 were to be accepted, it would follow that other States which had special arrangements with the Union also possessed sovereignty



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Learnerz IAS | Concept oriented UPSC Classes in Malayalam: Article 370 and Federalism UPSC NOTE
Article 370 and Federalism UPSC NOTE
Learnerz IAS | Concept oriented UPSC Classes in Malayalam
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