The Supreme Court, while stating that federalism is part of the basic structure of the Constitution, completely avoided answering the question of whether the Parliament can unilaterally alter the character of statehood by converting a state into a Union territory.
Shireen Moti, Assistant Professor, Jindal Global Law School, O.P. Jindal Global University, Sonipat, Haryana, India.
In a landmark decision, a five-judge Constitution bench of the Supreme Court unanimously upheld the Centre’s decision to abrogate Article 370, which bestowed special status on the erstwhile state of Jammu and Kashmir. Chief Justice of India DY Chandrachud said that the provision was a temporary measure meant to ensure the former state’s integration into India.
The court’s judgment raises significant concerns for India’s federal structure and marks a watershed moment in the country’s constitutional history. It dilutes the power of the states and fortifies the Union’s authority beyond constitutional imagination. In the words of eminent jurist Fali Nariman, the right process would have been for Parliament to remove the provisions of Article 370 through a constitutional amendment under Article 368, which allows Parliament to amend each and every article.
Roots of Article 370
After J&K’s accession to India, the bench said in its main judgment, the state did not retain “any element of internal sovereignty”. The existence of a separate Constitution and special privileges provided to J&K were a mere feature of “asymmetric federalism”, it held. There was no prima facie case that the presidential orders of 2019 that stripped J&K of its special status “were mala fide or an extraneous exercise of power”. The Supreme Court also directed the Centre to restore J&K’s statehood and to hold legislative assembly elections by 30 September 2024.
Published in: The Print
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