Basic without structure?: the Presidential Order of 1954 and the Indo-Jammu & Kashmir constitutional relationship. Issue 2 (3rd May 2020)

• Record Type: Journal Article
• Authors: Deva, Zaid
• Is Part Of: Indian law review. Volume 4:Issue 2(2020)
• Page Start: 163
• Page End: 198
• Publication Date: 2020-05-03
• Subjects: Jammu & Kashmir constitution -- special status -- Article 35A -- Article 370 -- basic structure review -- constitutional identity; Law reviews -- India -- Periodicals; 340.0954
• DOI: 10.1080/24730580.2020.1791520
• Languages: English
• ISSNs: 2473-0580

Abstract

ABSTRACT: In August 2019, India revoked unilaterally the autonomous position of the State of Jammu & Kashmir. This came in the backdrop of multiple petitions before its Supreme Court challenging this autonomous status, particularly Article 35A of the Presidential Order of 1954 (Basic Order) on the ground that its "incorporation" in the "Indian Constitution" amounted to an "amendment" and the same was unconstitutional for violating the basic structure. The Indian union's decision to supersede the Basic Order by employing the mechanism of Article 370 and the constitutional challenge against Article 35A raise a deeper question on the nature of J&K's accession to India, the resultant Indo-J&K constitutional relationship, and the place of the Basic Order in the constitutional scheme. Without first situating the Basic Order in the constitutional scheme, the question of basic structure violation by Article 35A and the (un)constitutionality of the August decision cannot be fully appreciated.