Article 370 Judgment is a Case of Constitutional Monism

Why in News?

• After four years of the abrogation of Article 370, the Supreme Court unanimously upheld the actions taken by the Union government on Aug 5, 2019.
• Although a significant portion of the discussion surrounding the verdict has concentrated on the issue of statehood, it is crucial to note that the central concern was truly the special status of Jammu and Kashmir (J&K).
• The verdict highlights that the Court utilised a historical, textual, and structural analysis of the Constitution of India, with all three methodologies being heavily supported by constitutional monism.

The Concept of Constitutional Monism

• In a parliamentary federal democracy, constitutional monism is a concept that pertains to the relationship between law at the centre and law enacted by states within a particular legal system.
• It is a perspective that emphasises the unity of the legal order, asserting that both law at the centre and states’ law form a single, integrated legal system.
• In constitutional monism, there is a hierarchy of norms, with the constitution (or a constitutional document) at the apex.
• According to this perspective, law passed by the parliament is considered an integral part of the domestic legal system and is automatically incorporated at the level of states without the need for specific legislation.
• And, if there is a conflict between law passed by the parliament and any law enacted by a state of the union, the former prevails, as it is an inherent part of the national legal order.

Recent SC Judgement on Abrogation of Article 370

• Court's Views on Jammu and Kashmir's Sovereignty
  • According to the SC, there is a substantial evidence in Article 370 and the J&K Constitution indicating that a merger agreement was not required for the state to relinquish its sovereignty.
  • Article 370(1) applied Article 1 of the Indian Constitution without any modifications, listing J&K as a Part III State.
  • Section 3 of the J&K Constitution explicitly asserts that "the State of Jammu and Kashmir is and shall be an integral part of the Union of India."
  • Additionally, Section 147 of the Indian Constitution prohibits amendments to Section 3, solidifying this provision as absolute.
  • The SC concluded that the Constitution of India has become the supreme governing document, emphasising the clear absence of a reference to sovereignty in the preamble of the J&K Constitution.
• Affirmed the Temporary Nature of Article 370
  • The SC highlighted the temporary nature of Article 370, placing it within the framework of temporary and transitional provisions in Part XXI of the Constitution.
  • The Court emphasised that the Instrument of Accession (IoA) explicitly states that Article 1, declaring India that is Bharat shall be a Union of States, applies in its entirety to J&K.
• Constitutional Validity of Proclamations During President's Rule
  • The SC's Bench affirmed the President's authority to make irreversible changes, including the dissolution of the State Assembly, under President's Rule.
  • The Court underlined that the President's powers are subject to judicial and constitutional scrutiny.
• The Verdict Rendered the J&K Constitution Inoperative
  • The Court concluded that the existence of the J&K Constitution, which applied only specific provisions of the Indian Constitution to J&K, is no longer necessary.
  • The application of the entire Constitution of India to the State of Jammu and Kashmir renders the J&K Constitution inoperative.

Critical Views on the Supreme Court’s Verdict

• The Verdict Reflects a Union-Centric Approach
  • The concept of monism in constitutional interpretation implies viewing the Union Constitution as the exclusive repository of both internal and external sovereignty.
  • While this perspective may align with the broader constitutional structure, the concern arises when it clashes with the intricate framework established by Article 370 for the distribution of powers between the Union and State governments.
  • The Basic Principles committee's report, which served as the foundation for drafting the State Constitution, emphasised the sovereignty of the State residing in its people.
  • The report outlined that, except for matters explicitly entrusted to the Union, the State legislature retained the power to legislate on all subjects falling within the sphere of its residuary sovereignty.
  • This affirmation of state sovereignty challenges the monist reading that emphasises a centralized, Union-centric structure.
• The Verdict Has Potential Impact on Federalism
  • The adoption of a monist interpretation poses a significant risk to federalism in India.
  • By neglecting the nuanced distribution of powers envisaged by Article 370, there is a potential erosion of State powers, undermining the delicate balance between the Union and State governments.
  • This erosion could lead to a concentration of authority at the central level, altering the federal fabric envisioned by the framers of the Constitution.
• The Verdict Also Challenges the Constitutional Sovereignty
  • The monist view does not just impact federalism; it also challenges the constitutional sovereignty.
  • When the courts favour a monist perspective, it harms the deliberate framework set by the J&K Constituent Assembly for state sovereignty.
  • This change has wider effects on the constitutional system and the independence of states in the Indian Union.
• The Court Overlooked the Contingent Nature of Presidential Powers
  • The Court's rejection of the argument regarding the permanence of Article 370 after the Constituent Assembly's dissolution is troubling.
  • The Court overlooked the contingent nature of presidential powers, as such powers are not unchecked and are intricately linked to the recommendations of the Constituent Assembly.
  • The interpretation that allows the President unchecked power to abrogate Article 370 is wrong for defying the principles of federalism and constitutional democracy.
• The Court Neglected State's Views on its Future
  • The Court's view, which places Parliament as the ultimate authority representing the entire nation, neglects the significance of a state's views on its future.
  • Even if a state's views may not be binding on Parliament, the respect for a state's popular sovereignty should not be dismissed.
  • The Court's stance is seen as worrying where historical thresholds for reorganisation were higher.
  • The monist reading not only upholds the abrogation of Article 370 but also diminishes the voice of the people of Jammu and Kashmir, raising concerns about the impact on federalism.

Conclusion

• There are certain concerns such as potential threats to federalism, the erosion of state powers, and the implications for constitutional democracy, arising from the Court's monist reading of the Constitution.
• A monist approach, when applied to a complex federal structure like India's, can have far-reaching consequences, not only in legal terms but also in shaping the political and democratic landscape of the nation.

Q1) What is article 35A?

Article 35A stems from Article 370 and was introduced through a Presidential Order in 1954, on the recommendation of the J&K Constituent Assembly. Article 35A empowers the Jammu & Kashmir legislature to define the permanent residents of the state, and their special rights and privileges. It appears in Appendix I of the Constitution of India. 

Q2) What is the background of article 370?

On 17th October 1949, Article 370 was added to the Indian constitution, as a 'temporary provision', which exempted Jammu & Kashmir, permitting it to draft its own Constitution and restricting the Indian Parliament's legislative powers in the state. It was introduced into the draft constitution by N Gopalaswami Ayyangar as Article 306 A.

Source: The Hindu