Article 370, Kashmir, and the Politics of Constitutional Integration in India: Consent, Sovereignty, and Judicial Power

Malik Muhammad Umair Afzal

No u9ty8_v1, SocArXiv from Center for Open Science

Abstract: The Supreme Court of India on 11 December 2023 in a five-member Constitution Bench, unanimously rejected the retention of the special constitutional status of Jammu and Kashmir under Article 370 of the Constitution. This paper attempts to examines the rational of the judgment and its implications on Indian federalism. It provides doctrinal analysis of the three opinions, arranged around three propositions about consent, voice, and deferral, in addition to Critical Discourse Analysis of the ways in which the judgment frames the Union, the former State and its people, in terms of asymmetric federalism, constitutional morality and critical-legal discourse. Four findings emerge. First, the Court held that the dissolution of the Jammu and Kashmir Constituent Assembly in 1957 did not extinguish the President’s power under Article 370(3), and that the Assembly’s recommendation was ratificatory rather than a binding condition. Read through the first proposition, this makes an asymmetric arrangement that depends on a transient consent institution reversible by the Union. Second, the Court held that Article 367 could not be used through CO 272 to amend Article 370, but upheld the outcome on other powers, so that it affirmed fidelity to procedure in principle and relaxed it in practice. Third, the treatment of voice rests on three distinct holdings: (a) consultation with the State legislature under Article 3 is not binding (b) during President’s Rule under Article 356, Parliament could supply the views of the State legislature; and (c) the second proviso to Article 3 was inapplicable after CO 272. Fourth, the Court left open whether a State may be converted into a Union Territory and relied on the Solicitor General’s assurance that statehood would be restored. Elections took place in September–October 2024, but statehood had not been restored by October 2026. The ruling prefers sticking to rules over what is fair under the Constitution, and it depends on the Union's goodwill to keep working. The paper closes with suggestions and a review of the dispute's international side.

Date: 2026-10-22
References: Add references at CitEc
Citations:

Downloads: (external link)
https://osf.io/download/6ad7bb1d4dc10f64cee34a11/

Related works:
This item may be available elsewhere in EconPapers: Search for items with the same title.

Export reference: BibTeX RIS (EndNote, ProCite, RefMan) HTML/Text

Persistent link: https://EconPapers.repec.org/RePEc:osf:socarx:u9ty8_v1

DOI: 10.31235/osf.io/u9ty8_v1

Access Statistics for this paper

More papers in SocArXiv from Center for Open Science
Bibliographic data for series maintained by OSF ().