ANALYZING POST-ABROGATION MEASURES, PERMANENCE OF ARTICLE 370 AND CONVERSION OF STATE TO A UNION TERRITORY BY - VAIBHAV SANKLECHA
ANALYZING POST-ABROGATION MEASURES,
PERMANENCE OF ARTICLE 370 AND CONVERSION OF STATE TO A UNION TERRITORY
AUTHORED BY
- VAIBHAV SANKLECHA
School of Law,
CHRIST (Deemed to be University)
I.
Background:
“Would it be possible?” B.N. Rau asked, “to have a
transitional provision keeping alive the present Instrument of Accession of the
State even under the new Constitution until we know what the ultimate position
of that State will be”[1].
While the Constituent Assembly pondered over the status of the State of Jammu
& Kashmir (‘J&K’) during the making of the Constitution of India
(‘Constitution’), B.N. Rau posed this question which presented a
conundrum for the drafters.
Gopalaswami Ayyangar, on 17th
October 1949, moved a new clause, Article 306A (subsequently renumbered as ‘Article
370’) which present the transitional arrangement referred to by Rau. He
explained the necessity of introducing a provision because of such ‘special
conditions’ that were then prevailing in Kashmir. The conditions were described
to be as follows: existence of a war in Kashmir which rendered the conditions
of the State as ‘still abnormal and unusual’; part of the State in the hands of
‘rebels and enemies’; and India’s entanglement with the United Nations in
regard to J&K[2].
The Supreme Court (‘SC’) in
the Kesavananda Bharti[3]
case propounded the principle of ‘basic structure’. This principle articulated by the SC significantly
altered the trajectory of constitutional history by rejecting the claim of
Parliament’s absolute supremacy in amending Constitution provisions solely
based on the necessary voting strength. The Court was mindful of safeguarding
the fundamental rights of citizens in this context.[4] Fali S. Nariman participated in the debate on India
at Sixty and published an article titled, “Constitution under threat”.
While he reflected upon 60 years of India’s independence, he stated that, “Our
Constitution has survived – and that is a plus point”[5]. The authors believe that one reason attributed to this
survival is the basic structure doctrine which lists down the basics of this
basic document. It has been beneficial by efficiently preventing any
unwarranted interference with the Constitution.
The
Bharatiya Janata Party (‘BJP’) withdrew its support from the alliance
with the People’s Democratic Party post which the ‘Governor’s Rule’ was imposed
on 20th June, 2018. This alliance, enduring since 1st March, 2015 was later
regarded by the Hon’ble Prime Minister Narendra Modi as a ‘mahamilawat’[6]. However,
on 20th December, 2018, the state was put under the President’s rule in
accordance with Section 92[7] of the
J&K Constitution.
On 5th
August, 2019, the Presidential Order titled, ‘Constitution (Application to Jammu
and Kashmir) Order, 2019 (‘C.O. 272’) was passed. This order superseded
the former ‘Constitutional (Application to Jammu and Kashmir) Order, 1954’ (‘C.O.
48’) that extended certain provisions of the Constitution to J&K and
additionally, made certain amendments and exceptions in the Constitution to
maintain the special status of the state. C.O. 272 introduces three key clauses
which substantially impact the constitutional status of Jammu and Kashmir.
Firstly, it supersedes prior Presidential Orders related to the state.
Secondly, the order extends all the existing constitutional provisions to the
state of Jammu and Kashmir, aligning it with the national framework. Thirdly,
it modifies Article 367[8],
replacing ‘Constituent Assembly of the State’ with ‘Legislative Assembly of the
State’ in the proviso to clause (3) of Article 370.[9]
A
constitutional bench of the SC has delivered a judgement on several petitions
challenging the Jammu & Kasmir Reorganization Act, 2019, C.O. 272 that
abrogated Article 370[10] of the
Constitution and the powers enjoyed by the Parliament under President’s Rule.
The Court ruled that J&K did not retain their sovereignty and placed
reliance on Section 3[11] of the
J&K Constitution which read as, “the State of Jammu and Kashmir is and
shall be an integral part of the Union of India”. This provision remained
absolute and Section 147[12] therein
prohibited making any amendments to it. The Court ruled that the Constitution
framers placed Article 370 with the intention of providing a temporary and
transitional arrangement in order to stabilize the situation and unrest in the
region. The Hon’ble Chief Justice of India (‘CJI’) held that the Article
1[13] of the
Constitution is applicable to J&K in its entirety.
In the
case related to C.O. 272, the Court acknowledged that although paragraph 2 of C.O.
272 seemed to modify Article 367, its actual impact was an amendment to Article
370 itself. Despite this, the Chief Justice determined that the entire C.O. 272
was not unconstitutional because the President had the authority under Article
370(1)(d)[14] to apply
“all or part of the Constitution” to J&K. The petitioners argued
that 370(1)(d) only allowed a piece-meal approach, while the entire
Constitution could only be applied by abrogating Article 370 under 370(3)[15].
However, the Court held that applying the entire Constitution under 370(1)(d)
had the same effect as abolishing Article 370 under 370(3). The Court also
ruled that consultation with the state government was not essential under
370(3), as the President had the unilateral power to declare Article 370 ceased
to exist. The Court concluded that C.O. 272 was valid in applying all
provisions of the Indian Constitution to J&K.
The BJP
government imposed a mass under curfew in J&K post-abrogation of Article
370. The individuals residing in the state faced strict penalties and
punishments. The 11 months of lockdown in J&K had not only resulted in an
“across-the-board violation of human rights”, it also led to the “denial of the
right to bail and fair and speedy trial, coupled with misuse of draconian
legislation, such as the Public Safety Act (PSA) and the Unlawful Activities
Prevention Act (UAPA), to stifle dissent”. Around 38,000 additional troops were
flown into J&K to enforce a lockdown. Section 144[16] of the
Code of Criminal Procedure (‘CrPC’) was invoked, prohibiting public
assembly, and thousands, including minors and almost all elected legislators of
J&K (except those from the BJP), were placed under preventive detention.
Just five days later, Parliament passed the Jammu and Kashmir Reorganisation
Act, dividing the state into two union territories – J&K, and Ladakh.
The
Hon’ble SC considered Article 370 a ‘temporary provision’. However, the
intention behind the actions of the Government before the de-operationalization
imply that the provision is intended to function permanently to maintain the
special status accorded to J&K. Actions such as the C.O. 48 of 1954 which
inserted Article 35A[17]; change
in phraseology of ‘Sadar-i-riyasat’ to Governor through the Constitution
of J&K (Amendment) Act, 1965; and Sheikh-Indira Accord, 1975. Therefore,
although the provision may be transitional in nature yet it aimed to ensure
permanency to ensure the special status granted to J&K.
Article 3[18] provides
for the ‘formation of new States and alteration of areas,
boundaries, or names of existing States’. However, it does not
contemplate the formation of a Union Territory (‘UT’) by altering the
boundaries of the existing State. The administration of a UT is in the hands of
the Central Government while that of the states is vested in the State
Government with a greater degree of autonomy. The reorganization of an existing
state into two UTs can be viewed as a direct attack upon the federal structure
of the Constitution, which is considered to be an essential feature of the
‘basic structure doctrine’.
II.
Statement of Problem:
The
authors after a careful perusal of the existing literature identify the vacuum
present in this area of Constitutional law. The SC has failed to recognize the
implications of deeming such an abrogation to be constitutional[19].
The judgement of this nature may lead to a judicial evolution that serves as an
instrument to be exploited by the Government to increase their power and
influence over the various states in the territory of India. Therefore, the
authors acknowledge the existence of such a gap in reasoning adopted by the
Court and bring out the implications that may reasonably follow.
III.
Research Questions:
The
authors have sought to answer the following crucial questions through the
paper:-
1.
Whether the imposition of excessive or
arbitrary measures post-abrogation amounted to violation of rights guaranteed
to the residents under Article 19 and 21 of the Constitution?
2.
Whether Article 370 assumed permanence due to
the actions of the Government throughout its lifespan?
3.
Whether conversion of an existing State into
two UTs amounted to a misinterpretation of the powers granted under Article 3?
IV.
Research Objectives:
The
authors in this paper attempt to critically evaluate the judgment of the
Hon’ble Supreme with a specific reference to the basic structure doctrine.
Additionally, the authors point at the excessive use of power by the executive
and flawed reasoning given by them to defend the abrogation of Article 370.
Firstly, the authors aim to bring out the arbitrary imposition of measures
equivalent to putting the state under a lockdown in isolation from the rest of
the world. Secondly, with reference to the remarks of the Hon’ble CJI with
respect to considering Article 370 a ‘temporary provision’, the authors
bring out the contrary intentions apparent in actions of the Government prior
to the abrogation. Thirdly, the authors throw light on another crucial aspect
that Article 3 of the Constitution does not envisage the convey a State into a
Union Territory.
V.
Research Methodology:
This research study is doctrinal in
nature and analytical in approach. The research will depend on both primary and
secondary sources.
1. Primary Source: The primary sources used in this
research include the Constitution of India, Precedents and Statutes.
2. Secondary Source: This includes data gathered from
different sources such as the internet blogs, journals, and articles.
Abrogation, Constitutional Order,
Conversion, Federalism, Instrument of Accession.
VII.
Excessive and
Arbitrary Measures Post-Abrogation:
On 5th August, 2019, the
Government of India (‘GoI’) abrogate Article 370 of the Constitution and
revoked the special status that had been accorded to J&K for almost 72
years after the independence of the country in 1947. On the eve of the
abrogation that is, 4th August, 2019, the GoI imposed a curfew
through Section 144 of the CrPC which prohibited the assembly of four or more
people at one place at a particular point of time. The restrictions imposed by
the BJP Government are equivalent to the imposition of a lockdown. The roads
remain empty with no tourist movements as a result of which the financial
stability of J&K comes under the scanner since tourism remains their main
source of revenue[20].
Since August 2019, the GoI led by BJP has implemented severe restrictions in
the Kashmir region. These measures include a communications blackout, stringent
limits on freedom of movement for residents, recurring curfews, the detention
of local political leaders, and other harsh containment policies[21].
As reported by renowned news
reporters of various new channels, the roads in J&K continue to remain
blocked after the abrogation of Article 370 even for vehicular traffic at
times. The pedestrians in some regions of the state are prevented from walking
on the roads as well. In interviews with the owners of the famous hotels in
J&K it was understood that the hotel industry has suffered a huge loss due
to the imposition of such a ‘lockdown’. Additionally, the communication
channels have been disrupted by the GoI making it extremely cumbersome for
people to communicate amongst themselves apart from sharing their views with
the individuals living outside J&K. This blackout has rendered the mobile
phones, landlines, internet and other messaging tools unusable. The citizens of
J&K continue to express their resentment and anger for such measures on
majorly two grounds; firstly, that their decades-long privileges have been
undemocratically and arbitrarily curtailed; and secondly, that the
communication channels’ disruption make it implausible for the ensure that
their family members are sound and safe. However, apart from these reasons, a
major factor that contributes to such resentment is what the citizens have
usually stated, “Article 370 has been snatched from us”[22].
The imposition of such an ‘unprecedented’
lockdown by the GoI curtailed the freedom of the citizens living within the
territory of J&K arbitrarily and unreasonably. The imposition of Section
144 may be considered as the tip of the iceberg with the communication being
completed disrupted, leaders of mainstream political parties, separatist
leaders, lawyers and youth organizations being arrested and a widespread health
crisis. The communications blockade is an extreme form of collective
punishment, ostensibly justified as a way to prevent potential disruptors from
stirring up unrest following the revocation of Article 370’s protections. However,
it also represents a covert strategy of media control - cutting off the free
flow of information from independent sources and imposing a singular,
state-sanctioned narrative. When information is so restricted, citizens are
left in a state of uncertainty and anxiety, unable to reliably connect with
loved ones. This contradicts the government's claims that the situation is
normal. The communications clampdown serves to restrict the spread of competing
perspectives and keep the populace isolated from uncensored updates[23].
The country has witnessed a similar
situation during the national emergency proclaimed by the then President Late
Shri. Fakruddin Ali under Article 352(2)[24]
of the Constitution on account of the security of India being threatened due to
an ‘internal disturbance’. During that period a similar situation as in
the instant case had occurred. There was large-scale communal violence on the
basis of the deep ideological divide amongst the citizens. There was violence
in multiple parts of the nation and the situation became hostile. Leaders of
many political parties were arrested and detained under the Maintenance of
Internal Security Act, 1971 (‘MISA’)[25].
The Hon’ble SC in ADM Jabalpur v. Shivkant Shukla[26]
by a majority of 4:1 held that as per the then Article 359 of the
Constitution the emergency proclaimed by the President can suspend the
enforcement of all the Fundamental Rights guaranteed under the Constitution and
therefore, a writ of Habeas Corpus filed against the detention of the individuals
was non-maintainable. However, on the basis of the dissent of Justice H.R.
Khanna the Parliament passed the Constitution (Forty-Fourth Amendment) Act,
1978[27]
which added the phrase, “except for Articles 20 and 21” in Article 359 [28].
The effect of such an amendment was that the emergency cannot suspend the
enforcement of such Fundamental Rights (‘FRs’).
The authors argue that in the instant
case although the situation was not as violent as the one before the ADM
Jabalpur case, yet the GoI enacted measures very similar to the ones
adopted during that period. In the instant situation, the GoI undertook the
said measures in anticipation of future violence and protests that could
plausibly be raised by the citizens. It is important to define the extent till
which the Government can go with the imposition of such preventive measures
since there is very thin line in such measures being valid and them being
violative of the FRs. The authors advocate for the measures to be violative of
the FRs guaranteed under Articles 19[29]
and 21[30]
of the Constitution. The measures deprive the citizens of their freedom to
practice their profession, move freely throughout the territory of India and
that of free speech and expression. The unprecedented lockdown imposed by the
GoI which was preventive in nature curtailed the FRs of the citizens. The right
to life and liberty of the arrested individuals was restricted without any
substantive evidence against such individuals to treat them in the said manner.
The GoI has skirted the provisions of Article 359 which provides for, “enforcement
of rights by Courts” and justified the imposition of arbitrary restrictions
upon the FRs and freedoms by claiming that this Article does not disallow the
suspension of the enforcement by the GoI itself.
The arguments of the authors are
carried forward to the next section of the paper which deals with the second
research question related to permanent nature of Article 370 during its
existence.
VIII.
Permanence of
Article 370:
Article
370(3)[31]
of the Constitution states that the Article 370 can be rendered inoperative by
the President of India but only a ‘recommendation’ of the ‘Constituent
Assembly of J&K’. The Constituent Assembly of J&K (‘Assembly’) was empowered to draft a separate Constitution for
J&K and decided on Articles of the Constitution that would be applicable to
J&K. The Assembly was dissolved on 26th January 1950, after the
Constitution of J&K was adopted by the Government of J&K. From a mere
perusal of Article 370 it can be inferred that after the dissolution of the
Assembly, Article 370 cannot be rendered inoperative. The C.O. 272 states that
the Legislative Assembly of J&K is equivalent to the Assembly[32]
and therefore, justifies the abrogation of Article 370 despite the recommendation
of the Assembly. However, the authors argue that the Assembly and Legislative
Assembly cannot be equated on the fundamental premise that the nature of the
institutions is completely different from each other. This C.O. 272 stands in
stark contrast with the judgment of the Hon’ble SC in April 2018[33]
where the Court held that, “despite the head-note of Article
370 using the word 'temporary', that it was not temporary”[34]. The
authors further enunciate on the permanence of the Article 370 in the
subsequent paragraphs.
The
Constitution (Application to Jammu & Kashmir) Order, 1954 (‘C.O. 48’)
passed by the then President, Late Shri Rajendra Prasad on 14th May,
1954 in concurrence with the Government of J&K brought about significant
changes with respect to J&K that furthered the intention of the GoI to
ensure the permanence and continuation of Article 370. Firstly, Part I
of such an order adds a proviso to Article 3 of the Constitution which
categorically states that the Bill to alter or diminish the boundaries of
J&K must only be introduced upon the recommendation of the Legislature of
J&K. Secondly, the insertion of Article 35A of the Constitution gave
exclusive rights to the ‘permanent residents’ or ‘hereditary state
subjects’ to own and acquire immovable property within the territory of
J&K and to have government jobs. Such laws which accorded special
privileges to the residents would be valid notwithstanding them being violative
of the FRs guaranteed under Part III of the Constitution. Thirdly, the
recognition of Sadar-i-riyasat as the Governor of J&K without any
prejudice to the Constitution of that State[35].
From the
aforementioned changes brought forward by the C.O. 48, it can be inferred that
the GoI was keen on ensuring the autonomy of the Constitution of J&K and
the recommendation of the State Legislature was given utmost importance. The
Bills related to the territory of J&K could not have been introduced in the
Houses of the Parliament without the recommendation of the State Legislature.
These measures ensured that the Parliament does not unlawfully or unreasonably
interfere with the individual autonomy of Article 370 and the Order remained
silent on the re-constitution of the Assembly after its dissolution post the
adoption of the Constitution of that State. It can be reasonably understood
that the Assembly while drafting the Constitution for J&K must have
realized the alleged ‘temporary’ nature of Article 370 and recommended its
de-operationalization however, the Assembly was not of such opinion and thus,
Article 370’s permanence was furthered strengthened by such acts of the
Assembly and the Parliament (through C.O. 48).
The power shift in the subcontinent
after India’s victory in the 1971 India-Pakistan War prompted Sheikh Abdullah
to accept India’s terms, recognizing India’s increased influence. Indira
Gandhi’s enhanced position after the war allowed her to take a firm stance on
Kashmir, rejecting demands for a plebiscite and the restoration of pre-1953
relations[36]. By
1975, Sheikh Abdullah abandoned his call for Kashmiri self-determination, a
significant departure from his earlier opposition to India. In furtherance of
the same, the Sheikh-Indira Accord of 1975 (‘the Accord’). It is
pertinent to state that the Accord did not categorically envision the temporary
governance of Article 370 over Kashmir, section 1 merely stating that “The
State of Jammu and Kashmir which is a constituent unit of the Union of India,
shall, in its relation with the Union, continue to be governed by Article 370
of the Constitution of India”[37].
It is clear that there was no intention of Article 370 operating as a temporary
provision.
Therefore,
on the basis of the aforementioned actions undertaken by the GoI it is apparent
that Article 370 was merely conceived as temporary however, this conception was
disapproved by the actions of the Government itself. The authors in the next
section stress upon the wrongful downgrade of the State of J&K to two UTs
and its impact on federalism as a part of the basic structure of the
Constitution.
IX.
Retrogression
of ‘Statehood’ – A misinterpretation of Article 3:
The State of Jammu and Kashmir was
divided into two union territories, Jammu and Kashmir and Ladakh, on 31st
October, 2019, as a result of the Jammu and Kashmir Reorganisation Act, 2019[38] (‘2019
Act’). The State was divided into the UT of Ladakh without a legislature
and the UT of J&K with a legislature, essentially stripping J&K off its
statehood and converting it into a UT. Article 3[39]
of the Constitution provides for formation of new States and alteration of
areas, boundaries or names of existing States. The SC in Re: Article 370
of the Indian Constitution[40]
took up the question on whether such a change of status of a state to a UT
is permissible within the ambit of Article 3. The Court reasoned that the
Parliament can extinguish the statehood of a State and bifurcate it into UTs if
it is believed that it can lead to better administration and governance.
Despite the law already being settled on the fact that the mere possibility of
a power being abused is not a valid reason to deny its existence[41],
the repercussions of giving the Parliament the power to alter statehood under
the shaky ground of ‘better administration’ are huge. It has already
been seen that the people of J&K have severely suffered and continue to
suffer to this day due to the poor implementation of Article 370 which led to
internet shutdowns and imposition of lockdowns on them. The Union cannot use this
power to convert all states of Indian into UTs as such a move would be visibly
unconstitutional and would effectively override the constitutional structure of
the country, i.e., a union of States. However, they would still have the power
to alter the statehood of at least a few states on very shaky reasoning. It is
also pertinent to state that the UTs are administered directly by the Union.
The entire concept of federalism in India revolves around the fact that
federalism exists with a bias towards the Union. But such acts of the Union
affect the autonomy of the states to make certain decisions themselves. Section
3[42]
of the 2019 Act provides for the formation of Ladakh as a UT without a
legislature while section 4[43]
provides for the formation of J&K as a UT with a legislature. However, the
very fact that no elections were held for the J&K UT in order to implement
the 2019 Act, in practice, creates 2 UTs directly under the control of the
Union.
Article 1[44]
of the Constitution provides India to be a ‘Union of States’ which
embodies the principle of federalism in India. However, when the Union is given
the power to carve out UTs out of existing states under the principle of ‘better
administration’, the scope for misuse is heightened. Such a drastic change
in the statehood was only justified on the grounds of it being ‘temporary’
in nature, which is refuted by the authors under the previous question. Even
after the abrogation of article 370, it is seen that the situation of J&K
had never really improve. While the reorganization of J&K may have been
driven by purported administrative benefits, it underscores the need for a more
cautious and transparent approach to territorial changes to uphold the
principles of democracy, federalism, and the rule of law. It is crucial to
recognize that such drastic changes should not be justified solely on the
grounds of being ‘temporary’, especially when they have lasting
implications for governance and autonomy.
X.
Conclusion:
The de-operationalization of Article
370 of the Constitution as the authors argue stands in the way of the Federal
structure of the nation and attempts to abrogate a provision which remained
permanent in its application over the years until 5th August, 2019.
The GoI ensured that the entire process of the abrogation of Article 370 was
carried smoothly without giving the slightest of a hint to the people involved
in the J&K administration. The Government starts of by proclaiming the
President’s rule in J&K and states that from the time of such proclamation wherever
previously the recommendation of the J&K State Legislature was required
that would be substituted by the recommendation of the Parliament. The irony
remains in the fact that the President being the nominal head of the State
ordinarily functions only on the aid and advice of the Government. Further, the
Government conveniently misinterprets Article 3 of the Constitution and ‘downgrades’
the status of J&K from that of a State to a UT. The Government defends the
C.O. 272 by stating that the consultation of the Parliament was taken and
therefore no such ‘procedural violation’ in case of Article 3.
Therefore, the entire roadmap of abrogating an allegedly ‘temporary’ provision
of the Constitution was executed in the most ‘efficient’ manner by the
GoI lead by BJP.
The 2019 Act enacted on the premise
of better administration falls short of upholding the essential features of the
basic structure of the Constitution that is democracy, federalism and rule of
law. The GoI arbitrarily and erroneously revoked the ‘statehood’ of
J&K which significantly violated the principle of federalism by completing
destroying the autonomy of a State which had been granted special privileges
since the time of independence. The quasi-federal structure after such measures
adopted by the Government becomes a less ‘quasi’-federal structure. The
unitary bias already existent in the federal structure of the nation becomes
all the stronger. The federal structure of the nation is violated by the action
of the Government relying on the sole basis that Article 3 does not permit a
retrogradation of ‘statehood’ especially, merely for administrative
reasons. The opinion of the citizens through their representatives in the
Legislative Assembly was disregarded even before the abrogation by proclamation
of President’s rule.
The fundamental pillars of the basic
structure of the Constitution stand violated that is, democracy, federalism and
rule of law. The Hon’ble Supreme while upholding the abrogation and stating
that the Article 370 was merely temporary in nature goes against the Court’s
previous ruling in April 2018[45]
that did not disregard the permanence of Article 370. The Assembly of J&K
before its dissolution in 1957 did not recommend the Parliament to
de-operationalize Article 370 and therefore, such an action further strengthens
the arguments of the authors regarding the ‘historical’ permanence of
Article 370. The SC while holding the abrogation accept that ‘asymmetric
federalism’ is a part of the basic structure of the Constitution however,
on the contrary the Court accepts the removal of such a permanent provision
with respect to J&K. The authors argue that the action of the GoI and the SC’s
accord of the same violates the basic structure of the Constitution
significantly whilst promising a ‘naya Kashmir’ (new Kashmir) without
the opinion of the Kashmiris themselves. The authors conclude their analysis in
the aforesaid paper with the opinion that merely because of Article 370 was
‘conceived’ as temporary its continuance cannot be dispensed with in
furtherance of asymmetric federalism while at the same time ignoring the
disastrous consequences upon the basic structure of the Constitution.
Bibliography
I.
Journals:
1. Bhaskaran, Yagneshwar. (2022)
“Analyzing the Constitutionality of Article 370 with Special Reference to the
Basic Structure Doctrine”. Indian Journal of Law and Legal Research 4. pp. 1-9.
2. Chandrachud, Dr. Abhinav. (2020) “The
Abrogation of Article 370”. Festschrift In Honour of Nani Palkhivala. pp. 1-24.
3. Connah, Leoni. (2021) “Double
Lockdown in Kashmir during the Covid-19 Pandemic” Social Justice Law Journal
38. pp. 33- 38.
4. Hashitha, Sai. (2020) “Article 370
and Indian Asymmetric Federalism – A view through the prism of Basic Structure
Doctrine”. International Journal of Law Management & Humanities 3. pp.
367-371.
5. Kumar, Virendra. (July-September
2007) “Basic Structure of the Indian Constitution: Doctrine of Constitutionally
Controlled Governance [From Kesavananda Bharati to I.R. Coelho]”. Journal of
the Indian Law Institute 49. pp. 365-398.
6. Lalwani, Sameer P., and Gayner,
Gillian. (August 2020) “India’s Kashmir Conundrum:: Before and After the
Abrogation of Article 370”. US Institute of Peace 473. pp. 1-24.
7. Mahajan, Kashish. (2020) “The
Abrogation of Article 370 and Bifurcation of Jammu and Kashmir – A Bridge too
Far”. Indian Journal of Constitutional Law 9. pp. 1-20.
8. R, Ankit. (2018). “Sheikh Mohammad
Abdullah of Kashmir, 1965–1975: From Externment to Enthronement” Studies in
Indian Politics. Pp. 3-7.
II.
Articles:
1. Arif Ayaz Parrey, Gursimran Kaur
Bakshi. (December 10, 2023) “In Re Article 370 judgment: The challenge and what
is at stake” The Leaflet. Retrieved on 15th February, 2024 from https://theleaflet.in/in-re-article-370-judgment-the-challenge-and-what-is-at-stake/.
2. Gauri Kashyap, R. Sai Spandana.
(December 11, 2023) “Abrogation of Article 370 | Judgement Summary” Supreme
Court Observer. Retrieved on 16th February, 2024 from https://www.scobserver.in/reports/abrogation-of-article-370-judgement-summary/.
3. Kaushik Deka. (August, 2019 11:50
AM). “How Kashmir changed on August 5”. India Today Insight Law Journal Blog.
Retrieved on 6th April, 2024 from https://www.indiatoday.in/india-today-insight/story/how-kashmir-changed-on-august-5-1577706-2019-08-06.
4. Laxmi Murthy and Geeta Seshu.
(October 11, 2019) “Silence in the
Valley: Kashmiri Media After the Abrogation of Article 370”. Economic And
Political Weekly Law Journal Blog. Retrieved on 4th April, 2024 from
https://www.epw.in/engage/article/silence-valley-kashmiri-media-after-abrogation.
5. Pradhyuman Singh. (August 30, 2021)
“Why ADM Jabalpur vs. Shivkant Shukla is criticized for wrong reasons: A case
for constitutionalism”. The Leaflet Law Journal Blog., Retrieved on 5th
April, 2024 from https://theleaflet.in/why-adm-jabalpur-vs-shivkant-shukla-is-criticized-for-wrong-reasons-a-case-for-constitutionalism/.
6. Shantanu Nandan Sharma. (August 11,
2019 8:01 AM) “Life after 370: Beyond the silence of Kashmir Valley”. The
Economic Times Politics Blog. Retrieved on 16th March, 2024 from https://economictimes.indiatimes.com/news/politics-and-nation/life-after-370-is-a-silent-crisis-simmering-in-kashmir/articleshow/70622668.cms?from=mdr.
[1] Abhinav Chandrachud, The
Abrogation of Article 370, Festschrift
in Honour of Nani Palkhivala (2020).
[2] ibid. at 12.
[3] Kesavananda Bharati v. State of
Kerala, (1973) 4 SCC 225
[4] Virendra Kumar, Basic
Structure of the Indian Constitution: Doctrine of Constitutionally Controlled
Governance [From Kesavananda Bharati to I.R. Coelho], 49 Journal
Of Indian Law Institute 365, 365 (2007).
[5] ibid. at 397.
[6] Arif Ayaz Parrey, Gursimran Kaur
Bakshi, In Re Article 370 judgment: The challenge and what is at stake, The
Leaflet (December 10, 2023)
https://theleaflet.in/in-re-article-370-judgment-the-challenge-and-what-is-at-stake/.
[7] J&K CONST. sect. 97.
[8] INDIAN CONST. art. 367.
[9] Kashish Mahajan, The
Abrogation of Article 370 and Bifurcation of Jammu and Kashmir – A Bridge Too
Far, The Indian Journal of Constitutional Law, (2020).
[10] INDIAN CONST. art. 370.
[11] J&K CONST. sec. 3.
[12] J&K CONST. sec. 147.
[13] INDIAN CONST. art. 1.
[14] INDIAN CONST. art. 370, cl. 1,
sub cl. (d).
[15] INDIAN CONST. art. 370, cl. 3.
[16] The Code of Criminal Procedure,
1973, §144, No. 2 of 1974
(India).
[17] INDIAN CONST. art. 35A.
[18] INDIAN CONST. art. 3.
[19] Gauri Kashyap, R. Sai Spandana, Abrogation
of Article 370 | Judgement Summary, Supreme
Court Observer (December 11, 2023)
https://www.scobserver.in/reports/abrogation-of-article-370-judgement-summary/.
[20] Shantanu Nandan Sharma, Life
after 370: Beyond the silence of Kashmir Valley, The Economic Times Politics Blog (August 11, 2019 8:01 AM),
https://economictimes.indiatimes.com/news/politics-and-nation/life-after-370-is-a-silent-crisis-simmering-in-kashmir/articleshow/70622668.cms?from=mdr.
[21] Leoni Connah, Double Lockdown
in Kashmir during the Covid-19 Pandemic, 38 Social
Justice L.J. 33, 33-38 (2021).
[22] Shantanu Nandan Sharma, Life
after 370: Beyond the silence of Kashmir Valley, The Economic Times Politics Blog (August 11, 2019 8:01 AM),
https://economictimes.indiatimes.com/news/politics-and-nation/life-after-370-is-a-silent-crisis-simmering-in-kashmir/articleshow/70622668.cms?from=mdr.
[23] Laxmi Murthy and Geeta Seshu, Silence
in the Valley: Kashmiri Media After the Abrogation of Article 370, Economic and Political Weekly L.J. Blog (October
11, 2019),
https://www.epw.in/engage/article/silence-valley-kashmiri-media-after-abrogation.
[24] INDIAN CONST. art. 352, cl. 2.
[25] Pradhyuman Singh, Why ADM
Jabalpur vs. Shivkant Shukla is criticized for wrong reasons: A case for
constitutionalism, The Leaflet L.J.
Blog (August 30, 2021),
https://theleaflet.in/why-adm-jabalpur-vs-shivkant-shukla-is-criticized-for-wrong-reasons-a-case-for-constitutionalism/.
[26] ADM Jabalpur v. Shivkant Shukla,
(1976) 2 SCC 521.
[27] Constitution (Forty-Fourth
Amendment) Act, 1978, §40, Bill No. 88 of 1978 (India).
[28] INDIAN CONST. art. 359.
[29] INDIAN CONST. art. 19.
[30] INDIAN CONST. art. 21.
[31] INDIAN CONST. art. 370, cl. 3.
[32] The Constitution (Application to
Jammu and Kashmir) Order, 2019, §2(d), C.O. 272 of 2019 (India).
[33] State Bank of India v. Santosh
Gupta and Anr., (2017) 2 SCC 538.
[34] Kaushik Deka, How Kashmir
changed on August 5, India Today Insight L.J. Blog (August, 2019 11:50 AM),
https://www.indiatoday.in/india-today-insight/story/how-kashmir-changed-on-august-5-1577706-2019-08-06.
[35] The Constitution (Application to
Jammu and Kashmir) Order, 1954, C.O. 48 of 1954 (India).
[36] Ankit, R., Sheikh Mohammad
Abdullah of Kashmir, 1965–1975: From Externment to Enthronement. Studies in
Indian Politics, (2018).
[37] Sheikh-Indira Accord, 1975, §1
(India).
[38] Jammu and Kashmir Reorganisation
Act, 2019, No. 34, Acts of Parliament, (India).
[39] INDIA CONST. art. 3.
[40] In Re: Article 370 of the Indian
Constitution 2023 INSC 1058 (India).
[41] State of West Bengal v. Union of
India, AIR 1963 SC 1241 (India).
[42] Jammu and Kashmir Reorganisation
Act, 2019, §3, No. 34 (India).
[43] Jammu and Kashmir Reorganisation
Act, 2019, §4, No. 34 (India).
[44] INDIA CONST. art. 1.
[45] State Bank of India v. Santosh
Gupta and Anr., (2017) 2 SCC 538.