Abrogation of Article 370: can the president act without the recommendation of the constituent assembly?

Abstract

ABSTRACT Article 370 of the Constitution of India 1950, as it stood till recently, restricted the Parliament’s legislative powers over the erstwhile state of Jammu and Kashmir (“J&K”). The provision, which was recently abrogated was under challenge even prior to that. In 2018, a challenge to its constitutionality was mounted on the ground that it was meant to be a temporary arrangement. In this paper, it is argued that the attempts to abrogate the provision without the recommendation of a constituent assembly for J&K is constitutionally suspect. This has both textual and normative support. Textually, the asymmetrical federal arrangement embodied in Article 370 as well as the procedural limitations mean that it is not open to the Union to abrogate it unilaterally. Normatively too, a temporary provision such as Article 370 may only be abrogated if its detractors can garner sufficient political support in the form of a constituent assembly, which has not yet been achieved.