ISSN (Print) - 0012-9976 | ISSN (Online) - 2349-8846

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The Constitutional Legitimacy of Abrogating Article 370

While the popular opinion in the nation is in favour of the abrogation of Article 370 in Kashmir, the constitutional legitimacy of the decision needs to be questioned. It was projected as a fairly constitutional move by stating that the special status and privileges available to the people of Kashmir for the last seven decades have not served their purpose and it is now time for the Kashmiris to enter into a new national pact for strengthening peace and local democracy in the state. The battle for peace and prosperity in Kashmir will be won or lost in the minds and hearts of the people of India.

The Narendra Modi–Amit Shah gamble in Kashmir is about the “audacity of hope,” to borrow the title of Barack Obama’s autobiographical book. The decision to abrogate Jammu and Kashmir’s (J&K) special status and to reorganise the state as two union territories is premised on the promise of a peaceful and glorious future for the Kashmiri people. History alone will pronounce whether the audacious move is before its time or represents an idea whose time has come. While popular national sentiment leans in favour of the decision for its utility as an integrating force, the constitutional legitimacy of the process is in question. The Supreme Court has been petitioned to pronounce upon the validity of what is essentially a political decision.

Legally speaking, critics, including the petitioners, view the disheveling of Article 370 as an assault on the nation’s asymmetrical federalism that recognises India’s pluralism and diversity. The decision is seen as a brazen negation of our solemn historical obligation to the people of Kashmir codified in the Instrument of Accession and a “constitutional monstrosity.” It is contended that Clause (3) of Article 370 cannot be used to emasculate the core of the constitutional guarantee and, such an interpretation is, therefore, a legal impossibility. It is the critics’ case that the sovereign power to reorganise the states has never been used for the diminution of the status of a state, but only to elevate union territories to full statehood, India being a union of states under the Constitution. A principal legal objection relates to non-endorsement of the union government’s unilateral decision by elected representatives of the people, an essential requirement under the original constitutional dispensation. The decision resulting in vastly circumscribed areas of legislation within the remit of the assembly of the newly created union territories is seen as an “evisceration of the right to full democratic participation of an entire section of people” (Prasad 2019) and suborning of the constitutional principle to transient majoritarian impulses. This, it is argued, disregards the auxiliary constitutional protection against excesses of executive power and is, therefore, violative of Article 14.

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Updated On : 20th Sep, 2019

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