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

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The Selective Misinterpretation of Article 370

In its judgment upholding the constitutional validity of the abrogation of Article 370, the Supreme Court makes two claims: a historical one arguing that Article 370 was meant to be “temporary” and an interpretive one arguing that Article 370’s text allowed its unilateral abrogation by the President of India. This column examines the two claims made in the judgment, looking to see if a firm basis for either is made out.

The Supreme Court’s judgment up­­holding the 5 August 2019 abrogation of Article 370 delivered on 11 December 2023 (In Re: Article 370)1 comes five years after the sudden move to abrogate Article 370, bifurcate the erstwhile state of Jammu and Kashmir (J&K), and strip it of statehood while it was under the President’s Rule. These three separate but interrelated actions were challenged before the Court. In its detailed and expansive judgment, the constitution bench judgment held that the abrogation of Article 370 by Presidential Order was valid and dismissed the challenge to the bifurcation of the state and its conversion to a union territory (Kumar 2023).2

Of the many issues covered in the judgment, commentators have highlighted the serious implications for federalism (Mehta 2023) and the breach of promise that the unilateral abrogation of Article 370 is tantamount to (Dani and Pandey 2023). Senior advocate Fali Sam Nariman (2023) has specifically critiqued the judgment for upholding the abrogation of Article 370 by the President as being “politically acceptable, but not constitutionally correct.” Agreeing with Nariman, I propose to go into some detail and examine why the Court’s reasoning on the historical aspect and the interpretation of Article 370 do not really hold up. I disagree with Nariman on the “temporary” nature of Article 370 and point out that the understanding of the place of this article in the constitutional context has also changed over time. In the first part of this column, I look at how the Court concludes that Article 370 is a “temporary” provision, and in the second part, I examine the Court’s conclusion that the President has the power to abrogate Article 370 unilaterally.

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Updated On : 27th Dec, 2023
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