Kashmir Petitions: An Opportunity for the Supreme Court to Uphold Federalism

Unlike Article 370, relatively little scholarship exists on the legality of the J&K Reorganisation Act, 2019.

After a delay of four years, the Supreme Court has finally taken up the petitions challenging the Government of India’s (GoI) abrogation of the semi-autonomous status of the erstwhile State of Jammu & Kashmir (J&K) and its degradation into two Union Territories (UTs).

(Photo: Aroop Mishra/ The Quint)

After a delay of four years, the Supreme Court has finally taken up the petitions challenging the Government of India’s (GoI) abrogation of the semi-autonomous status of the erstwhile State of Jammu & Kashmir (J&K) and its degradation into two Union Territories (UTs). I have written about the implications of the long delay in hearing the petitions here and here. The petitions have now been clubbed, and according to the Court, will be referred to as In Re: Article 370 after the initial hearing on July 11. The matter is listed for hearing on August 02.

A substantial body of written work covers the context, political motivations, and the resultant constitutional absurdity of the effective abrogation of Article 370 which codified the terms and conditions of J&K’s accession with the Indian Union. Relatively little scholarship exists on the legality of the J&K Reorganisation Act, 2019 through which the GoI, using Article 3 of the Constitution of India, not only abolished the ‘Statehood’ of J&K but also bifurcated it into two UTs. As the Court is expected to determine the constitutionality of the Reorganisation Act, the questions on reorganisation merit some attention.

The debate can be precisely framed as: Does Parliament have the power to entirely destroy/abolish a State and convert it into a UT or a group of UTs under Article 3 of the Constitution of India? This becomes more pertinent in the context of J&K where the Constitution of India applied with modifications and exceptions through a mechanism provided under Article 370 itself.

While what the Court would ultimately do in the matter remains to be seen, I identify three critical points why the Reorganisation Act is riddled with illegalities, and therefore, patently unconstitutional.

How Much Power Does Parliament Have?

First, a plain reading of Article 3 (Formation of new States and alteration of areas, boundaries or names of existing States) together with Article 1 (Name and territory of the Union) of the Constitution of India clearly establishes that the Parliament doesn’t wield an absolute power to abolish a ‘State’ and reduce it to a UT.

Although allowing the Parliament to ‘form a new State by uniting two or more States’, Article 3 does not provide any leverage for it to fully abolish, destroy, or annihilate a State. The obvious implication would be that there are some inherent limitations on the Union Parliament's power to alter ‘States’ under Article 3 despite a sweeping phraseology it employs.

The text and context of Article 1, which states that ‘India, that is Bharat, shall be a Union of States’, is of particular significance, highlighting the federal principle. Interesting to note here is the explicit emphasis on ‘States’ and States alone.

It follows that the Parliament, by no stretch of imagination, has the unrestricted power to convert States into UTs.

What Article 3 seems to allow is the creation of a new State by ‘uniting the existing two or more States’. Abolishing a State, and to be precise, reducing it to a UT, as has happened in the case of J&K, violates the federal principle on which the Constitution rests.

The Consent of the State Legislature

Second, and the most significant of all, the Constitution (Application to Jammu and Kashmir) Order, 1954 (the Basic Order) had put a further check on the GoI’s power to make any changes to the ‘State’ of J&K. The Basic Order of 1954 under Article 370 extended the Constitution of India to J&K with modifications and exceptions.

Among other things, Section 2 of the Basic Order had added a proviso to Article 3 which reads: ‘Provided further that no Bill providing for increasing or diminishing the area of the State of Jammu and Kashmir or altering the name or boundary of that State shall be introduced in Parliament without the consent of the Legislature of that State’.

The proviso unambiguously makes the ‘consent’ of the State legislature mandatory for any changes to be effected by the GoI with regard to the State of J&K under Article 3.

Aptly, the phraseology of the proviso is different from the one used in the proviso to Article 3 itself which uses the words ‘where the proposal contained in the Bill affects the area, boundaries or name of any of the States, the Bill has been referred by the President to the Legislature of that State for expressing its views…’

It is true, as the Constituent Assembly Debates and some Supreme Court rulings show, the views expressed by the legislature of the State are not binding on the Parliament.

Yet, in the context of J&K, the proviso in the Basic Order clearly required the consent of the State legislature of J&K for a Bill to be introduced in the Parliament under Article 3. On the contrary, the larger gamut of events of 5 August 2019, including the State’s reorganisation, was justified by the GoI by passing off Governor’s consent as the consent of the State legislature.

Cut to 2019, the GoI cleverly used the Presidential Order of 2019 to supersede the Basic Order and other subsequent Orders, therefore nullifying the force of the proviso in the Constitution of India as applicable to J&K (the Basic Order).

The move singularly highlights the GoI’s blatant disregard of the ‘political’ in the form of the requirement of the consent of the State legislature of J&K for effecting any changes under Article 3. The Basic Order codified the Delhi Agreement of 1952 which was negotiated between J&K and the Union after the codification of the Instrument of Accession (IoA) into Article 370.

Interestingly, even in the absence of an additional bar in the Basic Order, Parliament could still not have abolished the ‘State’ of J&K as Article 3 requires ‘consultation’ with the ‘legislature of the State’. J&K did not have an ‘elected government’ at the time when the Reorganisation Act was passed.

An Erroneous Interpretation of Article 3

Third, Article 3 has been subjected to an erroneous interpretation by the Supreme Court from time to time implying that the Union Parliament has sweeping powers to alter States. The ruling in West Bengal v. Union of India (1963) is a case in point. The Supreme Court observed that Parliament has ‘wide power to alter the boundaries of States, and even to extinguish the existence of a State’.

The judgment doesn’t hold ground for two reasons, particularly in the context of J&K.

The first is that the Court’s observation on Article 3 is clearly an obiter (that which is said in passing by the Court) as the original question before the Court pertained to the Central Government’s power to acquire coal bearing areas owned by the State of West Bengal. Chief Justice BP Sinha made the above observation in order to reject West Bengal Government’s argument that it enjoyed unqualified sovereignty over its property.

The second is that even if a wider interpretation is given to Article 3 to imply that the Parliament has the power to abolish a State, the peculiar constitutional exceptionalism as reflected in the IoA, Article 370, and the Basic Order in favour of J&K could still help the Court to hold otherwise.

Having said this, it is for the Court to seize the opportunity to not only settle the ambiguity of Article 3 but also scrutinise the J&K Reorganisation Act as also the effective abrogation of J&K’s special constitutional status. The federal principle, which has been held as the Basic Structure of the Constitution by the Court in S R Bommai v. Union India (1994), must serve as a guiding framework.

(Burhan Majid is an Assistant Professor of Law at the School of Law, Jamia Hamdard, and a doctoral fellow at NALSAR University of Law, Hyderabad. This is an opinion piece and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)