Pranav Pathak, Hidayatullah National Law University, Raipur
Tanisha Pandey, Bharati Vidyapeeth Deemed University, New Law College, Pune
ABSTRACT:
The inoperativeness of Article 370 brought some essential questions upon the anvil of the Constitution. Government has adopted an innovative mechanism but the question is to what extent this innovation can last in legal scrutiny. The Government moved a new clause in Article 367 and used the Constituent Assembly and the Legislative Assembly interchangeably, despite having significant disparities between two. Moreover, another point of contention is the extent of power conferred to Parliament under the Presidential Rule under Article 356. There is a bridle in the exercise of authority by Parliament under the President’s rule, despite the fact, Parliament took such a significant decision. Over and above this, this move of the Government also violates the “Basic Structure Doctrine”. In the impugned case, the government contradicts not only the federal structure of the Constitution, but also the Fundamental Right. It is the duty of the judiciary to uphold the all-important principle of Constitutionalism, and to ensure the protection against the legislative lynching. As a consequence, this decision is concomitant with challenges for the central government during the legal scrutiny.
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