Bifurcation of Jammu and Kashmir

The Jammu And Kashmir Reorganisation Act, 2019 provided for the reorganisation of the existing State of Jammu and Kashmir into two union territories: Ladakh without legislature and Jammu and Kashmir with legislature. The abrogation of Article 370 along with the bifurcation of the state led to a lot of controversies and varied legal opinions. This article would serve as an earnest contribution towards the analysis of the legality and constitutionality of the said parliament action.

Introduction

The law making power of the Parliament or State legislature is bound by the concept of constitutional limitation[1]. No law inconsistent with the constitution is acceptable. Article 3 of the Indian constitution is the supreme law that forms the basis of bifurcation of any state. Therefore consistency with the procedure enshrined under Article 3 becomes mandatory while making any significant alterations to the boundary of states.

Constitution is the supreme law of the land. Any legislation that transgresses the constitutional values or principles deserves to be struck down. Federalism is one among the basic principles enshrined under the constitution. There are certain aspects where the concurrence of state becomes necessary as per the law. Unilateral decision making in such key areas can cause chaos and inconvenience to the citizens in general.

Major changes brought about by the Jammu and Kashmir Reorganisation Act, 2019

  • The Act reorganises the erstwhile state of Jammu and Kashmir (J&K) into:the Union Territory (UT) of J&K with a legislature,
  • The UT without a legislature,
  • The UT of Ladakh will comprise Kargil and Leh districts, and the UT of J&K will comprise the remaining territories of the existing state of J&K,
  • The UT of J&K will have a legislature like Puducherry and will be headed by a Lieutenant Governor,
  • Ladakh will not have an Assembly and will be directly governed by the Union Home Ministry through the Lieutenant Governor (LG) like in case of Chandigarh,
  • The Indian Constitution and the Indian laws would be applicable in the UTs[2].

Constitutionality of the bifurcation of Jammu and Kashmir

What is the constitutional mechanism related to bifurcation as under Article 3 of the Indian Constitution?

Article 3 of the Constitution[3]provides for the procedure with regard to alteration of boundaries- Formation of new states and alteration of areas, boundaries or names of existing States:  Parliament may by law

  • form a new State by separation of territory from any State or by uniting two or more States or parts of States or by uniting any territory to a part of any State;
  • increase the area of any State;
  • diminish the area of any State;
  • alter the boundaries of any State;
  • alter the name of any State; Provided that no Bill for the purpose shall be introduced in either House of Parliament except on the recommendation of the President and unless, 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 thereon within such period as may be specified in the reference or within such further period as the President may allow and the period so specified or allowed has expired.

Explanation I: In this article, in clauses (a) to (e), State includes a Union territory, but in the proviso, State does not include a Union territory.

Explanation II: The power conferred on Parliament by clause (a) includes the power to form a new State or Union territory by uniting a part of any State or Union territory to any other State or Union territory.

Article 3 authorises the formation of new States, and the alteration of areas, boundaries or names of existing States, but it does not authorise “the degradation of the status” of an existing state into a union territory[4]. This is made even clearer by Explanations I and II to Article 3, where the word “state” is to be read to include a “union territory”, and parliament’s power is deemed to include “the power to form a new State or Union territory by uniting a part of any State or Union territory to any other State or Union territory.”Also, Article 3 provides that any bill altering the name/ boundary of the State shall not be introduced in the Parliament without the consent of the state legislature.

In Pradeep Choudary case[5]  it was reiterated that, the relevant state legislature must have a chance to debate the proposal to alter state boundaries, and that its views must be considered. This highlights the importance given to the views of the state in such matters. Therefore, Article 3 could not have been intended to authorise the degradation of a state into a Union Territory.

Principle of non-retrogression

“The State should not take measures or steps that deliberately lead to retrogression on the enjoyment of rights either under the Constitution or otherwise.[6]”  This is the basic idea of the principle of non-retrogression. Crucial right at stake here is the right to representation, and to be governed by one’s elected representatives[7].

India: A union of states

Article 1[8] of the Constitution of India stipulates that “India, that is Bharat, shall be a Union of States.” Article 1(3) of the Constitution further stipulates that the territory of India shall comprise –

  • The territories of the States
  • The Union territories specified in the First Schedule. Therefore, for the purposes of Article 1, “states” and “union territories” are treated differently, and “states” remain the constituent units of the Indian Union. Article 3 of the Constitution cannot be read to grant the power to the Union to convert the status of states into Union Territories, as this power carries with it the necessary implication that the Union could convert India into a “Union of Union Territories” instead of a “Union of States”.

The Indian federal scheme

 Article 1 and Article 3 of the Constitution – does not permit Parliament to retrogressively downgrade statehood into a less representative form such as a Union Territory. Interpretation of Articles 1 and 3 is buttressed by the holding of this Hon’ble Court in S.R. Bommai v Union of India[9], where it has been clearly held that “the Courts should not adopt an approach, an interpretation, which has the effect of or tends to have the effect of whittling down the powers reserved to the states, let it be said that the federalism in the Indian Constitution is not a matter of administrative convenience, but one of principle – the outcome of our own historical process and a recognition of the ground realities.”

What can be inferred?

In the India, the constitution carries paramount importance. According to Article 1 and Article 3, the mechanism that was supposed to be executed was not done in this case. Most importantly, the views of the state were not considered. The views of the representatives of the state necessarily amount to the opinion of the citizens of that state.

Therefore, wherever the law mandates to consult the state, the opinion of public becomes crucial. Moreover, Jammu and Kashmir enjoyed statehood since a long time and a sudden degradation into a union territory necessitates ensuring that there are valid reasons for the same. There must be reasonable justifications as to why the action was considered to be positive.

Conclusion

It is a fundamental principle of our constitutional scheme that every organ of the State, every authority under the Constitution, derives its power from the Constitution and has to act within the limits of such power[10]. Two areas focussed on this issue were: consultation with the state government and degradation of status. It is indeed true that the state of Jammu and Kashmir was under presidential order at the time when such decisions taken. But the author opines that such practical difficulties should not result in ignorance of basic constitutional principles and values.


[1]Kalpana Mehta AndOrs. vs Union Of India And Ors. AIR 2018 SC 2493,¶17

[2] https://www.iastoppers.com/flashcard/jammu-and-kashmir-reorganisation-act-2019-contains-which-main-provision-2/#:~:text=On%20August%205%2C%202019%2C%20Indian,effect%20from%20October%2031%2C%202019.

[3] Article 3, Constitution of India

[4] https://www.livelaw.in/pdf_upload/pdf_upload-363037.pdf

[5]PradeepChaudhary&Orsvs Union Of India &Ors, (2009) 12 SCC 248 90, 188, 459

[6]NavtejJohar v Union of India, (2018) 10 SCC 1, ¶201, ¶202

[7] State(NCT of Delhi)v. Union of India,(2018)8 SCC501, ¶50 to ¶54

[8] Article 1, Constitution of India

[9]S.R.Bommai v. Union of India,(1994) 3 SCC1

[10]Minerva Mills Ltd. & Others v. Union of India and Ors.[1981] 1 S.C.R. 206.

References

MOHD AKBAR LONE&Anrv.UNION OF INDIA &Ors.available at https://www.livelaw.in/pdf_upload/pdf_upload-363037.pdf

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