Parliament Doesn’t Have the Power to Downgrade J&K’s Status To UT

All citizens should be worried about the precedent this move sets for the future of federalism in India.

The J&K Reorganisation Act passed by Parliament violates India’s federal structure.

(Photo: Erum Gour/The Quint)

With the passage of the Jammu and Kashmir Reorganization Act, 2019, the number of States in the Union of India will reduce from 29 to 28 and the number of Union Territories will increase from 7 to 9. The Act, by splitting the State into two Union Territories of Ladakh and Jammu & Kashmir, extinguishes the State of Jammu and Kashmir.

This is not merely a change of nomenclature or mere semantics, but a move that raises grave and fundamental questions about the nature of India’s constitutional democracy, which is founded on a principle of federalism.

In our view, the Act jeopardizes India’s federal structure in two primary ways:

• First, it proceeds on a manifestly incorrect interpretation of Article 3 of the Constitution to extinguish a State altogether; and
• Second, its disregard for the State legislative assembly disrupts the balance between the Union and States provided for in the Constitution.

Parliament Does Not Have the Power to Extinguish a State

The power of Parliament to form a new State or Union Territory or alter the boundaries of a State is provided for and curtailed under Article 3 of the Constitution. Article 3 states:

(Photo: Arnica Kala/The Quint)

(Photo: Arnica Kala/The Quint)

The Limits of Parliamentary Power Under Article 3

The provision may seem complicated on a first reading as it offers a number of permutations and combinations by which States and Union Territories may be combined to create a new entity.

However, a careful reading makes it clear that Parliament does not have the power to extinguish a State altogether: a Union Territory or State may be formed by “separating a territory from any State”, thus implying that the State must still remain in existence after such separation.

Similarly, the Parliament may “diminish” i.e. reduce the area of the State. Logically the word diminish cannot be equated with reducing the State to nothing. In the same vein, a State may be created by a union of States or of a union of a State or Union Territories or a union of two Union Territories and so on, but Article 3 does not contemplate the division of the State into two Union Territories such that nothing of the State remains.

The Framers carefully and exhaustively enumerated the powers vested in Parliament with respect to changing of boundaries and creation of States under Article 3. If it was the intention of the Framers (and even Parliament which subsequently amended Article 3) to allow for the possibility of extinguishing a State by converting it into one or more Union Territories under Article 3, the wording of Article 3 would have been clear to that effect.

Violation of Principle of Federalism

The federal structure of the country means that States are autonomous units, and that control over matters fundamental to the governance of the State such as public order, police, public health, agriculture, water, and communication are exercised by the legislature elected by the people of that State.

Voters often choose different Governments at the Centre and in their State based on their evaluation of which party is better suited to serve national issues and which party is better suited to handle issues of local governance. The Central Government cannot, unless there is a breakdown of constitutional machinery in the State, interfere with powers reserved to the State.

On the other hand, a Union Territory does not have the same autonomy, it is controlled by the Central Government through an administrator appointed by the Government and do not typically have a legislative assembly elected by its people.

Even the Union Territories that have elected legislative assemblies (Delhi and Puducherry) do not have complete autonomy – disputes arising out of both Union Territories about the extent of independent power vested in the legislative assemblies and the governments of the Union Territories have been taken to Court.

Both these disputes have adversely affected governance in the Union Territories. In this context, any move by the Centre to take control of it by converting it into a Union Territory or multiple Union Territories amounts to a subversion of the principle of federalism that respects the autonomy of States.

Has This Ever Been Done Before?

If the downgrading of a State to a Union Territory were permissible, it would have become the modus operandi of all Central Governments with strong majorities to take over control of the States that they did not control electorally.

Yet, while the country has gone through its share of reorganization of States, a State has never been extinguished by converting it into one or more Union Territories for the Central Government to control.

One may seek to counter this statement with the example of Delhi, which was a “State” and was made a Union Territory in 1956 under the State Reorganization Act, 1956. However, Delhi was a State in “Part C” of the First Schedule of the original Constitution. States included in Part C were effectively similar to Union Territories and were not given the same status as other States.

This can be understood by seeing how both States in Part C of the original Constitution and most of the Union Territories included in the amended Constitution were to be “administered by the President”, acting through an administrator appointed by her.

In 1956, Parliament amended the First Schedule of the Constitution through the Seventh Constitution Amendment Act, whereby it removed “Part C” and introduced the concept of Union Territories. Section 17 of the Act tellingly stated that the heading of Part C of the First Schedule would be changed to Union Territories. Thus, the conversion of any Part C State into a Union Territory is no precedent for the Bill pertaining to Jammu & Kashmir.

Has the Supreme Court Ever Dealt With This Issue?

In seeking to defend the Bill against this objection, the Central Government may attempt to rely on a judgment of the Supreme Court passed in 1963, where the Court observed that “Parliament is … invested with the authority to alter the boundaries of any State and to diminish its area so as even to destroy a state with all its powers and authority.”

This observation was made by the Court in the case of State of West Bengal v. Union of India, where the State of West Bengal had challenged the competence of Parliament to enact a law authorizing the Central Government to acquire land within the territory of States for the purpose of mining coal.

However, the Court made this observation to illustrate Parliament’s power in theory, and thereby demonstrate why the argument of the State of West Bengal – that the State was a sovereign body – must be rejected. It was not however based on any detailed analysis of the text of Article 3, as that provision was not directly involved in the case.

The observation cannot therefore be regarded as a binding view on the meaning of Article 3, especially on the question of whether States can be downgraded into Union Territories to be controlled by the Central Government. In legal terms, this non-binding observation would be known as obiter dicta.

All things considered, Article 3 cannot be read as conferring upon Parliament the power to extinguish a State and convert it into one or multiple Union Territories, and for this reason the Jammu & Kashmir Reorganisation Act 2019 is patently unconstitutional.

The State Legislative Assembly Cannot be Ignored

The second manner in which the Bill violates India’s federal setup is that the State legislative assembly has been completely disregarded while passing it.

While Article 3 confers upon Parliament the power to create States and alter State boundaries, the proviso to the provision clarifies that no bill that affects the boundaries of a State can be initiated unless a resolution is first tabled in the legislative assembly of the State that would be affected. During the discussion over Article 3 in the Constituent Assembly, Dr. Ambedkar explained,

“I have not the least doubt about it that the method of consulting, which the President will adopt, will be to ask either the Prime Minister or the Governor to table a resolution which may be discussed in the particular State legislature which may be affected,<b> so that ultimately the initiation will be the local legislature and not by the Parliament at all.</b>”

(emphasis supplied)

Dr. Ambedkar was thus clear that to prevent the Parliament from unilaterally misusing its power under Article 3, any proposal to change the boundaries of a state would have to initiate from the State legislatures, as it is they who represent the will of the people.

In the present case, the State legislative assembly of the State of Jammu and Kashmir was dissolved a year ago, owing to the Governor declaring a breakdown of constitutional machinery in the State, followed by a Proclamation of President’s rule bringing the State under the control of the Central Government as per Article 356.

However, the onus is on the Central Government to explain how the Governor or President or Parliament can be an effective substitute for the will of the people for the purposes of Article 3.

The Framers of the Indian Constitution were clear that reorganization of a State could only happen after the elected representatives of the people of the State discussed the issue. They never envisaged that the proviso in Article 3 would be bypassed by maintaining President’s rule in a State so as to avoid any discussion in the concerned State legislative assembly.

Such an approach is clearly contrary to the spirit and purpose of the proviso to Article 3. Every citizen of India, including those who voted in favour of the Bill, should be worried about the precedent this move sets for the future of federalism in the country.

(Jahnavi Sindhu and Vikram Aditya Narayan are are advocates based in Delhi. This is an opinion piece and the views expressed above are the authors’ own. The Quint neither endorses, nor is responsible for them. )