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Article 370 judgment is a case of constitutional monism

  • Published
    14th Dec, 2023

Context:

By focusing more on the particular concept of sovereignty ‘which requires no subordination to another body’, the Court ends up refusing to recognize the shared sovereignty model of Article 370.

Constitutional Monism and Federalism

  • Constitutional Monism Eroding Federal Powers: The Supreme Court's unanimous decision on Article 370 reflects constitutional monism, undermining the federal distribution of powers.
  • Neglect of J&K's Shared Sovereignty Model: Article 370's shared sovereignty model, as envisioned by J&K's Constituent Assembly, is neglected in favor of Union-centric sovereignty.
  • Binary View of Sovereignty:The Court's binary view of sovereignty oversimplifies the complex federal dynamics, setting a concerning precedent for federalism in India.

Contingency of Presidential Power under Article 370

  • Dismissing Permanence: The Court's monist approach is evident in its interpretation of Clause 3 of Article 370, rejecting the idea of its permanence.
  • Unbridled Presidential Power: By asserting unbridled power for the President, the Court overlooks the contingent nature of Clause 3 on the Constituent Assembly's recommendation.
  • Erosion of Checks and Balances: This interpretation weakens the checks and balances inherent in constitutional democracy, challenging the essence of federalism.

Popular Sovereignty

  • State Views on Reorganization:The judgment diminishes the significance of an individual state's views on reorganization, favoring Parliament's authority.
  • The Court's monist perspective subordinates the popular sovereignty of J&K's people to the broader national sovereignty, eroding state autonomy.
  • Alarming Shift:This shift in dynamics is particularly alarming for J&K, where historically, the threshold for reorganization was higher than in other states.
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