The abrogation of Article 370 has been upheld by the Supreme Court but its constitutional method continues to raise basic-structure questions. In the light of In re Article 370 (2023), critically analyse.
Subtopic: Polity · Constitutional Amendments & Federalism
How to structure your answer
Introduction: Article 370 was inserted in 1949 as a 'temporary provision' giving Jammu and Kashmir a special constitutional position; on 5 August 2019 Presidential Order C.O. 272 read with C.O. 273 and the Jammu and Kashmir Reorganisation Act 2019 ended that status.
Body: Three dimensions — (i) constitutional architecture — Article 370(1)(d) allowed the President to extend constitutional provisions with the concurrence of the J&K Constituent Assembly; that body had dissolved in 1957, and Parliament was deemed to act in its place; (ii) the In re Article 370 judgment (11 December 2023) by a five-judge bench unanimously upheld the abrogation, held that the President could exercise Article 370(3) without J&K Constituent Assembly concurrence after 1957, and ordered Assembly elections by 30 September 2024; (iii) federal concerns — splitting a State into two Union Territories under Article 3 without consulting the State legislature, and the precedent for downgrading other States.
Way forward / Conclusion: Restore full Statehood at the earliest as the Solicitor General undertook, codify a clear procedure for Article 3 changes involving State consent, and read federalism — already part of the basic structure under S.R. Bommai (1994) — as a check on such use of constituent power.
Written within the word limit
226 words · target 250 words · 14 min
Introduction:
Article 370 was inserted in 1949 as a 'temporary, transitional and special' provision giving Jammu and Kashmir a unique constitutional position; on 5 August 2019, Presidential Orders C.O. 272 and 273 read with the Jammu and Kashmir Reorganisation Act 2019 ended the special status — a method upheld in In re Article 370 of the Constitution (11 December 2023).
Constitutional architecture: Article 370(1)(d) allowed extension of constitutional provisions to J&K with the concurrence of the State's Constituent Assembly; that body dissolved in 1957, and Parliament was deemed to act in its place for the 2019 amendments, anchored in Prem Nath Kaul v. State of J&K (1959) and Sampat Prakash v. State of J&K (1969).
The 2023 verdict: A five-judge bench unanimously upheld the abrogation, held that Article 370(3) could be exercised without J&K Constituent Assembly concurrence after 1957, and directed Assembly elections by 30 September 2024 — held within the deadline, restoring electoral democracy in the new Union Territory.
Federal concerns: Splitting a State into two Union Territories under Article 3 without consulting the State legislature raises basic-structure questions; S.R. Bommai v. Union of India (1994) holds federalism as basic structure, and the Berubari Union (1960) line on Article 3 changes to State boundaries continues to invite contestation.
Way forward / Conclusion:
Restore full Statehood at the earliest as the Solicitor General undertook, codify a clear procedure for Article 3 changes requiring State consent, and read federalism as a check on the use of constituent power.
What an examiner expects to see
- Article 370 — special status of J&K, originally a 'temporary, transitional and special' provision
- Presidential Orders C.O. 272 and 273 of 5 August 2019
- Jammu and Kashmir Reorganisation Act 2019 split the State into UTs of J&K and Ladakh
- In re Article 370 of the Constitution (11 December 2023) — five-judge bench upheld abrogation
- Article 370(3) — President's power to declare cessation
- J&K Constituent Assembly dissolved 1957 — referenced 'recommendation' became inoperative
- S.R. Bommai v. Union of India (1994) on federalism as basic structure
Concrete cases, schemes and judgments
- In re Article 370 of the Constitution (2023 INSC 1058)
- Prem Nath Kaul v. State of J&K (1959)
- Sampat Prakash v. State of J&K (1969)
- Jammu and Kashmir Reorganisation Act 2019
- Berubari Union (1960) and Article 3 changes to State boundaries