ARTICLE 370 JUDGMENT IS A CASE OF CONSTITUTIONAL MONISM

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THE CONTEXT: More than four years after the abrogation of Article 370, the Supreme Court of India, recently, unanimously upheld the actions of the Indian government. While much of the discourse around the judgment has focused on the question of statehood, the special status of Jammu and Kashmir (J&K) was at the heart of the matter as well.

SPECIAL STATUS OF ARTICLE 370:

• Basic Principles committee’s report, based on which the State Constitution was drafted, stated: ‘The sovereignty of the State resides in the people thereof and shall except in regard to matters specifically entrusted to the Union be exercised on their behalf by the various organs of the State.
• The State’s legislature will have powers to make laws for the State in respect of all matters falling within the sphere of its residuary sovereignty’.

ANALYSING THE SC JUDGEMENT:

• To arrive at its conclusions, the Court employs a historical, textual, and structural interpretation of the Constitution of India, and all three approaches are deeply informed by constitutional monism.
• There are the sites where the Court employs a monist reading of the Constitution, and it sets a dangerous precedent for federalism in India.

Federalism and constitutional sovereignty

• Union Constitution as sole bearer of sovereignty: The monism that is reflected in the judgment imagines the Union Constitution as the sole bearer of internal and external sovereignty. Unlike this, Article 370 laid down an elaborate framework for the distribution of powers and authority between the Union and the State governments.
• Non recognition of shared sovereignty: By focusing more on the particular concept of sovereignty ‘which requires no subordination to another body’, the Court ends up refusing to recognise the shared sovereignty model of Article 370. Sovereignty in federal constitutions is not a binary concept but it encompasses various dimensions and exists along a spectrum of degrees.

The contingency of the presidential power

• Unbridled power of constituent assembly: Another site where the Court’s monism operates is in its reading of Clause 3 of Article 370. The Court rejects the argument that Article 370 had gained permanence after the dissolution of the Constituent Assembly. It stated that it is premised on the understanding that the constitutional body had unbridled power to alter the constitutional integration of the State with the Union’. In a constitutional democracy, no body or institution has unbridled powers. Further, Clause 3 of Article 370 is primarily concerned with the relationship of two powers and not just the status or the relationship of the power-bearing entities.
• Presidential power to abrogate Article 370: The proviso to Clause 3 makes it clear that the presidential power to abrogate Article 370 was contingent on the recommendation of the Constituent Assembly. As it is in the nature of the presidential powers under Clause 3 to be contingent on the Constituent Assembly, this limitation does not die with the dissolution of the Assembly. The relation of powers here does not mean that the President becomes ‘subordinate’ to the Constituent Assembly but that power as a federal arrangement has been distributed across multiple axes under Article 370.  President’s limitless power to abrogate Article 370 makes State’s Constitution inoperative .It led to application of the Indian Constitution to the State of Jammu and Kashmir which severely affects the federalism and constitutional democracy.

STATE’S VIEWS

• Non binding nature of state’s view: The judgment’s monism imagines popular sovereignty as a monolith where since the views of an individual state for the purposes of reorganisation are not binding on There are many sites within the Constitution where a recommendatory power is vested in a body. Merely because that power may not be binding does not mean that the power can be taken over by another body or that power need not be exercised.
• Unequal nature of states: The inevitable conclusion that one arrives at is that 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 particularly worrying in the context of J&K where the threshold for reorganising the State was historically much higher compared to the other States.

THE CONCLUSION:

The Court by relying on a monist reading of the Constitution has not only upheld the abrogation of Article 370 but has also put its stamp on the approval of the silencing of the voice of the people of the former State of J&K. At the same time, misuse of the President’s rule to bring irrevocable changes to the states like bifurcation of the state without consulting the state legislative assemblies undermines federal principles.

PREVIOUS YEAR QUESTIONS

Q.1 To what extent is Article 370 of the Indian Constitution, bearing marginal note “Temporary provision with respect to the State of Jammu and Kashmir”, temporary? Discuss The future prospects of this provision in the context of Indian polity. (2016)

Q.2 The banning of ‘Jamaat-e-islaami’ 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 the influence of OGWs. (2019)

MAINS PRACTICE QUESTION

Q.1 What is constitutional monism? Examine the Supreme Court’s judgment on the abrogation of Art 370 in the context of the principle of  constitutional monism which seems to affect federalism and constitutional democracy in India.

SOURCE: https://www.thehindu.com/opinion/op-ed/article-370-judgment-is-a-case-of-constitutional-monism/article67635313.ece