This article is Part III of the series to summarise the arguments presented by parties in the Article 370 hearings before the Supreme Court that have concluded on September 5, 2023. The court has reserved its judgement, in the case. This part is about the arguments for and against the reorganisation of Jammu and Kashmir into the Union Territories of Jammu & Kashmir, and Ladakh. Before we discuss the arguments, it is important to know some provisions of the Constitution that deal with this issue.
Provisions of the Constitution
Part I of the Constitution deals with the Union and Its Territory. Article 1 declares that India, that is Bharat, shall be a Union of States. Article 2 states that the Parliament may admit new states, by law, on such conditions as it thinks fit. Article 3 deals with the ‘formation of new states and alteration of areas, boundaries or names of existing states’. Article 3 becomes important in this context since it allows the Parliament to 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, or increasing the area of any state or diminishing the area of any state, or altering the boundaries of any state or altering the name of any state.
First proviso to this article states that a bill introduced for the purpose of this article in the parliament should/can only be done after the bill has been referred by the President to the legislature of the state for expressing its views. It essentially means that before the parliament decides about changing the territory of the state are making any alterations, the legislature of the state should be given an opportunity to express its views. There are two explanations to this article.
Explanation 1 states that the referral to the legislature is not required in case of a Union Territory; Parliament can do to Union Territories all those things that it can do to States, as stated above. This means, the word State in the power of Parliament to ‘form a new State by separation of territory from any State or by uniting two or more State’ could be read as ‘form a new Union Territory by Separation of territory from any State or by uniting two or more Union Territories.’
The explanation two states that Parliament has the power to form a new State or Union Territory by uniting any part of the state or Union Territory to any other State or Union Territory. Essentially, Parliament can change/alter the territory of the States and Union territories, but for States, it will have to obtain the views from the legislature of the state.
Article 4 states that if there is a law made under Article 2 or 3 i.e., if India adds a State to its territory or if it changes the territory of the States, it should make the necessary changes in First and Fourth Schedules-the former dealing with territorial extent of States and Union Territories and the latter with the number of seats from the state in the Rajya Sabha. Article 4 also states that the law made under Articles 2&3, will not be considered as an amendment under Article 368.
What does this mean? These laws under Article 2&3 will not have to be passed by a Special Majority of the houses of Parliament.
Why is this Article important?
A December 2018 proclamation was issued by the President announcing suspension of the proviso to Article 3 in the state of Jammu Kashmir; the president had exercised his powers under Article 356. Article 356(1)(b) states that the President, by his proclamation can make such incidental and consequential provisions as appear to the President to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending in whole or in part the operation of any provisions of this Constitution relating to anybody or authority in the State.
The 2018 proclamation suspended the proviso to Article 3 which requires the referral of the territory amendment/reorganisation bill to the legislature by the President. After abrogation of Article 370 on August 6, 2019- the Parliament passed the Jammu and Kashmir Reorganisation Act, 2019, resulting in the creation of Jammu & Kashmir, and Ladakh as separate Union Territories, without having to refer it to the Legislature of the state since the proviso to Article 3 was in suspension.
Arguments of the petitioners
Senior Advocate Rajeev Dhavan argued that the 2018 order was not supposed to be done under Article 356. When the bench asked if there are any restriction as to what could be done by the President under Article 356, he answered that the proclamation must relate to the pre-conditions specified under Article 356 and to whatever is required to materialise Article 356.  He also took the line that Articles 3 & 4 of the Constitution cannot be invoked during a President’s rule since the articles require participation of State Legislature performing a non-legislative function, which is not the function of Parliament even under Article 356.
This means that, if Jammu Kashmir legislature was to express its views on reorganisation of the state, it would not be making a law- a legislative function. It would be giving its views, a non-legislative function representing the view of the people in the state. However, since the state was under President’s rule, the legislature’s views had no possibility of being expressed, thus depriving the people of the opportunity to express their views. Therefore, he argued that restrictions should be there on the exercise of Article 356 and Articles 3 & 4. The Bench remarked that such proposition would be broad and that it would make it harder for Centre to intervene in some necessary scenarios.
Dhawan also argued that there are different provisions for different states. Taking example of states such as Chhattisgarh, Jharkhand, Odisha and Madhhya Pradesh, he argued that the requirement to have a Tribal Welfare Minister under Article 164 cannot be taken away under Article 356.
Senior Advocate Dushyant Dave argued that Article 356 was not to be used to suspend the proviso to Article 3 which would have an effect of amending it to not apply to Jammu and Kashmir. He relied on the Berubari Union case to argue that the process should have been via Article 368 rather than Article 357.
Senior Advocate Shekhar Naphade argued that Articles 1, 2 & 3 will have to be read together, and a clear limitation is placed in Article 3 that a state’s status cannot be taken away. Article 356 can be used for bringing normalcy to a state where constitutional machinery has broken down, but it cannot be used to abolish the state as an entity, altogether, he argued.
He also argued that it should be absurd for the Governor to suggest the President uses Article 356 and suspend constitutional provisions from applying to the State of J&K when the legislative assembly has already been dissolved and the Governor- appointed by the President himself- has assumed powers. He also cited the judgement in the case of KN Rajagopal vs. Karunanidhi which states that a failure of constitutional machinery cannot be viewed under Article 356 when the legislative assembly is dissolved. Essentially, he stated that if Governor had already assumed the powers, on what basis did the President issue his December 2018 proclamation under Article 356?; and even if the Article 356 proclamation is issued, it does not have the power to suspend Constitutional Provisions that are unrelated to bringing normalcy to the state.
Senior Advocate Dinesh Dviwedi argued that, since Parliament can make a law for any territory other than the territory of a State and on any subject other than those mentioned in the State list under article 246(4), the taking away of Jammu and Kashmir status as a State results in parliament being the sole legislature for the State. The dual polity Jammu and Kashmir is this destroyed by the reorganization act, he argued.
Senior Advocate CU Singh also argued on similar lines with respect the limitations on President’s power with respect to Article 356, to suspend the proviso to Article 3. He argued that the 2018 Presidential proclamation was void. He also argued that States were never meant to be converted into Union Territories as a whole but the Union territories were being converted into States as they became stable political units. He argued that the reorganisation was not permissible under Article 3. He argued that the conversion of State into Union Territory violates basic structure, and it cannot even be done under Article 368 but if it all it could be done, it could be only under Article 368. 
Arguments by the State
Solicitor General Tushar Mehta argued that the federal system in the country has been accepted as one that leans towards a unitary feature and that there are several considerations for Jammu and Kashmir which has very strategic importance, its nature of being a border state and with the history of terrorism, infiltration, outside influence etc. When the Bench remarked that an argument based on border states is a problem and that we have many states on the border, the solicitor argued that there is the history of the state which should be taken into consideration regarding the number of deaths of security forces and the number of attacks, and the paralysing of schools, hospitals, banks, business houses etc. He cited the remarks by Minister in the Parliament saying that the government does not have a problem in putting things back as they were once normalcy is restored in the region.
He also relied on State of West Bengal vs. Union of India and Babulal Parate vs. State of Bombay to argue that the Parliament has supreme power to carve out Union Territories from states and the current government has carved out the UTs of Jammu and Kashmir, and Ladakh from the state of Jammu and Kashmir, albeit for a temporary period.
When the bench remarked that the suspension of proviso to Article 3 led to representation of the state getting represented by the will of people of the larger country, he relied on the case of SR Bommai vs Union of India to argue that the Parliament could change the territory of the states without their concurrence and that the proviso only enables the expression of the views of the state which are left to the Parliament to later decide on. This scheme, he argued, makes Parliament paramount in the constitution of States and it is a different system from the system established in the USA. Provided there is a broader compliance- namely the entire nation since the issue affects the entire nation according to him, Parliament could make the decision, he argued. He then argued, on the basis of the Reorganisation Act as to why the status of the Jammu Kashmir, despite being a UT, has not considerably reduced as many other privileges of a state were still given including the provision for a legislative assembly.
Petitioners argued that a state cannot have its statehood taken away as Article 3 does not allow such procedure. When the requirement for taking views of a state before it is reorganised was in suspension that too under President’s powers, the state cannot be reorganised.
Respondents argued that Parliament have absolute power to constitute and reconstitute states. Although that might not be done, this is a special case which would not arise again since there is no state like J&K. This reorganisation does not aim to let J&K be UT forever and has been done for progress.
(The author is a legal researcher with the organisation)
(To be concluded –Part 4 to follow)
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