New Delhi: The State’s recommendation is not binding on Parliament when creating a new state, the Supreme Court has ruled as it upheld the Centre’s 2019 move to carve out Ladakh as a Union Territory out of the erstwhile state of Jammu and Kashmir.
The erstwhile state was bifurcated into two Union Territories — J&K with an assembly, and Ladakh, without an assembly, directly under the Centre — following the abrogation of Article 370.
While upholding Ladakh’s creation as a UT, the question dealt by the top court was whether under Article 3 of the Constitution requires agreement of the State Assembly before a State’s boundary is redrawn or divided or a UT is created.
The Monday verdict upheld the creation of Ladakh as a UT, but left the question of whether a state’s character can be extinguished by downgrading it to a UT open for deliberations.
In the present case, the top court ruled, the said question is not required to be decided as the Centre has promised to restore statehood to J&K.
Article 3 provides power to Parliament for formation of new states, alteration of boundaries, and name changes. Such a change can only be introduced after it has been referred to the State Legislature for its views.
It may be recalled that before the abrogation of Article 370 in 2019, J&K did not have an assembly. Jammu & Kashmir governor Satya Pal Malik had dissolved the assembly a year earlier. Parliament had then used its emergency powers to substitute its own views for that of the assembly.
To answer the question of whether Ladakh’s redesignation as a UT could be constitutionally permitted, the top court referred to a 1959 judgment of the Supreme Court in the case of Babulal Parate, who challenged the division of the then State of Bombay as it was done without the views of the state, as required under Article 3.
In the Babulal case, a bench of five SC judges headed by then Chief Justice of India S.R. Das, considered the issue of whether the State Reorganisation Act, 1956, which attempted to divide the then State of Bombay into three entities was unconstitutional due to a violation of Article 3.
The top court had held that there was no violation of the Constitution as the State Government’s views are not binding on Parliament. This means that a mere reference to the State is enough, and Parliament is not bound to accept the State’s views.
More than 70 years later, the SC has relied upon this decision to hold that the Centre could replace the assembly’s views as acceptance of such views was not mandatory in nature. ThePrint explains.
Post Independence, there were over 500 disjointed princely states in India and a need was felt to reorganise them, which led to the constitution of a State Reorganisation Commission under Justice Fazl Ali, K.M. Panikkar, and Hridayanath Kunzru in 1953.
On the basis of the Commission’s report in 1955, the State Reorganisation Act, 1956 was passed to reorganise these princely states. It proposed the formation of three separate entities — the Union Territory of Bombay, the State of Maharashtra including Marathwada and Vidharbha, and the State of Gujarat including Saurashtra and Kutch.
This move was challenged by Babulal that led the Supreme Court to interpret Article 3, whether the provisions in it made a state Legislative Assembly’s consent mandatory for the purposes of redrawing boundaries of a State, its division or integration of two States.
Under the Constitution’s Chapter on Union and its Territory, Article 3 provides five special and wide ranging powers to Parliament to form a new State, increase the area of an existing State, diminish such area, alter boundaries of any State, or alter the name of any State.
The article has two provisos — President’s consent and State Government reference. First, the Centre can only introduce a bill to perform any of the five powers under this article on the recommendation of the President. Second, it requires that the impugned bill should first have been referred to the State Legislature for expressing its views before it is introduced in Parliament.
Before the State Reorganisation Act, 1956 was introduced, the matter was recommended by the President and even referred to the State Assembly, and on its recommendation, incorporated some changes. It was then passed without further reference to the State of Bombay.
Babulal’s contention was that Parliament did not meet the second requirement of Article 3 as the State did not get a chance to express views to the amended act as passed. Therefore, the action was void, he contended.
The Bombay High Court did not agree and dismissed Babulal’s case, who then moved the top court.
Avoiding ‘endless loops’
The SC upheld the high court’s opinion, reasoning that the two conditions contemplated (of presidential introduction and state reference) does not mean that even after the Act is amended to include views of the State, it must be referred “back” to the State for its views. This would lead to an endless loop where the States would keep sending in comments, the top court opined.
It had pointed out various practical difficulties such as contradictory views of States would lead to an interminable and infinite process for consultation, which was not possible. “If Parliament were to accept the views of one of the Legislatures and not of the other, a fresh reference would still be necessary by reason of any amendment in the original proposal contained in the Bill,” the court had said.
There was no violation of Article 3 as the State Assembly’s views were only of a recommendatory nature, the court said. It was perfectly valid in law to reorganise without such views. “Nor is there anything in the proviso (of Article 3) to indicate that Parliament must accept or act upon the views of the State Legislature,” the court had added.
It had refused to consider an argument by the petitioner which had used United States provisions to interpret Article 3, which required consent of the people and considered the State to be an amalgamation of the people.
In the US, the State’s “consent” is required to make such changes, which is not the case in India, the court said.
The bench noted the difference in the provisions of the two countries and held that the Indian Constitution was exhaustive on this matter, which clearly defined the words in Article 1 of the Constitution.
“That provision [Article 4, Cl. 3 of the US Constitution] is quite different from the proviso we are considering: the former requires the consent of the State Legislature whereas the essential requirement of our proviso is a, reference by the President of the proposal contained in the Bill for the expression of its views by the State Legislature,” it said.
“Indian Union was sovereign and independent in the sense the American colonies or the Swiss Cantons were before they formed their federal unions. The Constituent Assembly of India, deriving its power from the sovereign people, was unfettered by any previous commitment in evolving a constitutional pattern suitable to the genius and requirements of the Indian people as a whole,” it added, noting the difference in the two structures.
The petitioner had also contended that an amendment or substantial change must be referred back to the State for its views, but the apex court had rejected this, noting that Article 3 does not provide for any such reference again once the State had been asked for its views once.
Akshat Jain is a student of the National Law University, Delhi, and an intern with ThePrint.
(Edited by Tony Rai)