The Abrogation of Article 370
Festschrift in Honour of Nani Palkhivala (January 2020, Forthcoming)
24 Pages Posted: 16 Sep 2019
Date Written: August 24, 2019
This paper discusses the constitutional validity of the Indian government’s decision to alter the status of J&K in August 2019. It argues that the government’s attempt to abrogate Article 370 and convert J&K into union territories is unconstitutional. Since October 1947, the basis of J&K’s accession to India was that India would not exceed the boundaries of Maharaja Hari Singh’s Instrument of Accession without the consent of the people of J&K through their elected representatives. By not even consulting the leaders of Kashmir, let alone obtaining their “concurrence”, the President of India has, it will be submitted, violated the essence of Article 370 of the Constitution. Further, by failing to obtain even the views of the legislative assembly of the state in order to convert J&K into a union territory, Parliament has violated the spirit of Article 3 of the Constitution.
Keywords: Jammu and Kashmir, Article 370, Constitution of India, legal history, J&K
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