SCRAPPING OF ARTICLE 370: A CONSTITUTIONAL TRANSMUTATION OF THE FEDERAL BALANCE

Abstract

The Constitution of India is a unique constitution. It is the largest written liberal democratic constitution of the world. It provides a quaint composition of federalism and Unitarianism, and flexibility and with rigidity. Article 370 of the constitution of India postulates autonomy for the state of Jammu and Kashmir-a region located in the northern part of Indian subcontinent which was administered by India as a state from 1954 to 31 October 2019. A part of the larger region of Kashmir, which has been the subject of dispute between India, Pakistan, and China since 1947, granting it with the power to have a separate constitution, a state flag and autonomy over the internal administration of the state. The article was drafted in Part XXI of the Constitution: Temporary, Transitional and Special Provisions. The Constituent Assembly of Jammu and Kashmir, after its establishment, was authorized to recommend the articles of the Indian constitution that should be applied to the state or to abrogate the Article 370 altogether. After consultation with the state's Constituent Assembly, the 1954 Presidential Order was issued, specifying the articles of the Indian constitution that applied to the state. Since the Constituent Assembly dissolved itself without recommending the abrogation of Article 370, the article was deemed to have become a permanent feature of the Indian Constitution. This article, along with Article 35A, defined that the Jammu and Kashmir state's residents live under a separate group  of laws, including those related to citizenship, ownership of property, and fundamental rights, as compared to residents of other Indian states. On 5 August 2019, the Government of India issued a constitutional order superseding the 1954 order, and making all the provisions of the Indian constitution applicable to Jammu and Kashmir based on the resolution passed in both houses of India's parliament with 2/3 majority. In addition, the Jammu and Kashmir Reorganization Act was passed by the parliament, enacting the bifurcation the state of Jammu and Kashmir into two union territories to be called Union Territory of Jammu and Kashmir and Union Territory of Ladakh. Given the sacrosanct political arrangement it encapsulates as well as its role as an exemplar of Indian federal asymmetry, it is now upon the Supreme Court to formally acknowledge the constitutional basis of India’s delicate distribution of powers. This paper will seek to provide a comprehensive understanding of the constitutional history of Article 370, exploring the constitutionality of the abrogation of Article 370 by the central government, nature of Indian federal system along with the discussion of it’s changing dimensions in light of Article370. Further, this paper will also highlight the challenges to Indian federalism.