New Delhi: In its judgment upholding the nullification of Article 370 Monday, the five-judge bench of the Supreme Court steered clear of giving a definite answer to the challenge raised against the Jammu and Kashmir Reorganisation Act, 2019, which bifurcated the state into two Union territories (UTs).
The bench led by Chief Justice D.Y. Chandrachud refrained from determining whether the reorganisation of the state of Jammu and Kashmir into the UTs of Ladakh and J&K is permissible under Article 3 of the Constitution, which deals with formation of new states, alteration of areas, boundaries or names of existing states.
It, however, added a word of caution on converting a state into a Union Territory, noting that such a change would result in the state losing its character that can alter the division of powers between the Union and this state.
The majority opinion, authored by CJI Chandrachud, wondered if Parliament could alter the division of power between the Union and a state in the absence of a constitutional amendment, which would require ratification by the state concerned.
“If Parliament cannot alter the division of powers between the Union and all states absent a constitutional amendment, can it logically alter the division of powers between the Union and one state by extinguishing its territory (and hence existence) under Article 3?” the bench observed.
Quoting a 2011 division bench judgment, the verdict replied in negative to the above framed question, while leaving it open for the court to hold further deliberations on it in an appropriate case. The bench did not delve deeper into this because the Centre had assured the court that statehood of J&K would be restored.
The 2011 judgment which the bench referred to dealt with a dispute between Punjab and Himachal Pradesh over the sharing of power from a hydro-electric plant between the two states.
Himachal Pradesh argued that it was entitled to 12 percent free power based on its status as the mother-state of the power project. Punjab repelled this argument by contending that Himachal’s demand was based on the notion that it had some pre-existing rights over the land and water, which could not be accepted as the territory of the states owed their existence to parliamentary legislation under Article 3.
Rejecting Punjab’s argument, the SC held in 2011 that though Parliament has the power to form a new state by separation of territory from any state or by uniting two more states or parts of states, increase or diminish the area of a state, it cannot under Article 3 take away the state’s executive power or legislative power in matters that are enumerated in List II of the seventh schedule of the Constitution that relate to subjects which fall under the state’s jurisdiction.
State losing its character
The bench also discussed B.R. Ambedkar’s address to the Constituent Assembly on the division of executive and legislative authority between the Union and the States, which is the hallmark of a federal constitution. As a result of this, the court said, the Union cannot alter the division of powers between the Union and the States without a constitutional amendment.
Justice Sanjiv Khanna, one of the five members on the bench, pointed out that “conversion of a State into Union territory has grave consequences, among others, it denies the citizens of the State an elected state government and impinges on federalism”.
Writing a three-page concurring opinion, Justice Khanna added that creation of a UT from a state has to be justified by giving very strong and cogent grounds and must be in “strict compliance” with Article 3 of the Constitution.
According to Chandrachud’s opinion, there is a difference between extinguishing a state and extinguishing the character of a constituent unit as a state.
“A particular State may cease to exist because it is divided to create two (or more) new States. Similarly, a particular State may cease to exist because it is divided to create a State (or more than one State) and a Union territory (or more than one Union Territory),” the bench observed. But in both cases, the alteration of area does not result in the state losing its character.
However, a constituent unit can “be said to lose its character as a state only if it’s converted into a Union Territory in full, with no part of it retaining statehood,” the verdict opined.
A state’s character, the bench said, is derived not from its name or boundaries but from its relationship with the Union government — one characterised by constitutional autonomy that confers legislative and executive powers on the state. These characteristics are not usually lost when its boundaries, size or name are changed.
In this backdrop, the bench upheld the carving of Ladakh as a UT.
The court also analysed the historical context for the creation of federating units, and its impact on the principles of federalism and representative democracy. It noted that post-Independence, the constitutional classification of the constituent units in India mirrored the classification done by the colonial power.
Hence, Article 3, the court said, was intended to “subserve” reclassification of states, according to the needs of the local population and based on careful evaluation of administrative, cultural, linguistic, financial and other relevant considerations, rather than on the expediency of the colonial government.
On creation of Ladakh as UT, the bench said the Constitution envisaged UTs to be governed by the Union government. UTs were created when certain areas were not viable administrative units and did not have requisite resources to sustain themselves.
“In addition, strategic, security, or other compelling reasons could play a role in the decision to create a Union Territory,” the bench said.
Assembly’s view not binding
The SC’s judgment Monday was delivered on a batch of petitions filed in August 2019, soon after the central government abrogated Article 370, virtually rendering it an ineffective provision of the Constitution.
The petitioners had argued that the 2019 Act was enacted without fulfilling one of the prerequisites of Article 3, which is there was no consent of the state assembly approving the division of the state.
The bench, however, rejected the contention that Parliament could not have broken the state into two UTs without the consent of the state legislative assembly, which was missing in this case.
It also rejected the petitioners’ challenge to the 2019 reorganisation Act on procedural grounds.
The petitioners had argued that the President could not have assumed to himself all the functions of the state government and all the powers exercised by the Governor of J&K. It was their case that the division of the state could not have happened without the consent of the state legislative assembly, which was dissolved when the law was enacted.
On the state assembly’s view, the bench said it was not binding under Article 3. The bench referred to a 1959 decision of a constitution bench of the SC that held that there was nothing to indicate in Article 3 that Parliament must accept or act upon the views of the State Legislature.
“The views of the Legislature of the State under the first proviso to Article 3 are recommendatory to begin with,” the bench declared Monday.
The 1959 judgement was delivered on a petition challenging the States Reorganisation Bill, 1956, that proposed formation of three separate entities — Union Territory of Bombay, state of Maharashtra, including Marathwada and Vidharbha, and the state of Gujarat, including Saurashtra and Kutch.
The petitioner challenged the creation of three entities on the ground that the legislature of the State of Bombay had no opportunity of expressing its views on the formation of a composite state instead of three separate units as proposed in the Act.
With regard to the President assuming powers of the state government, the bench said the same was an exercise of power under President’s Rule in J&K, which cannot be restricted to only lawmaking powers.
(Edited by Nida Fatima Siddiqui)
Very good judgment
Judgement is welcomed.