The most significant bit in the Supreme Court judgement on Kashmir’s special status is not what it said—but what it chose to remain silent on. Specifically, the Court refused to place any limit on a union government’s power to hack a state into Union Territories—at will. That ought to worry all of us.
Researched by: Nirmal Bhansali & Aarthi Ramnath
Editor’s note: This is the second part of a two-part series on the Supreme Court ruling on the abrogation of Article 370—which stripped Kashmir of its special status. ICYMI: Part one has everything you need to know about the ruling—and what it said about Kashmir.
Remind me again about UTs & states…
The Constitution divides India into two kinds of entities: states and Union Territories. UTs are defined as territories that are “economically unbalanced, financially weak and administratively and politically unstable”—and therefore needed to be ruled directly by the union government.
In 1956, the States Reorganisation Act carved out 14 states and six Union Territories. Of the six, Manipur, Tripura and Himachal Pradesh became full-fledged states—and larger states have since been carved up to create smaller ones. As a result, we now have 28 states and 8 Union Territories.
UTs vs states: States have far greater independence. They have their own legislature and make their own laws. There are two types of UTs—with or without a legislature. Chandigarh, for example, has none—and is entirely governed by a Lt Governor appointed by the Centre.
Others like Puducherry or Delhi have their own Assembly—but the balance of power is firmly established: “The Central Government has not only full executive authority but also regulation-making power.” Hence, a UT is primarily administered by the Lieutenant Governor who makes “regulations for the peace, progress and good government”—even if there is an elected government in power.
The downgrade of J&K: The Jammu and Kashmir Reorganisation Bill—passed on August 5, 2019—marked the first time that a state was turned into Union Territory—and a toothless one at that. This is what the bill achieved:
- It divided the state into two Union Territories: Ladakh and J&K.
- Ladakh would not have a legislature—like Chandigarh, for example.
- J&K would have a legislature headed by a Chief Minister who can “advise” the Lieutenant Governor—who typically has far greater powers than a state’s governor in a UT.
- In J&K’s case, however, the Lt Governor will exercise far more discretion—including the right to veto any bill passed by the state legislature.
The challenge: As we noted yesterday, the petitioners argued that the government had no constitutional grounds to change the status of Jammu & Kashmir to a Union Territory:
[T]hey contend that the Jammu and Kashmir Reorganisation Act, 2019 was unconstitutional under Article 3. This Article empowers the Parliament to form new States and alter or modify the boundaries of existing states. The petitioners argue that Article 3 does not give the Parliament powers to downgrade federal democratic states into a less representative form such as a Union Territory.
By doing so in the case of Kashmir, the government violated the fundamental right to “autonomous self-government”—which “cannot be taken away without the due procedure established by the law.”
Alright, so is it unconstitutional?
There are two Articles at play here—Article 3 and Article 356.
Article 3: empowers the Parliament to basically redraw the boundaries of a state—or create a new one. It can:
- 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.
But, but, but: The Article also specifies that the views of the state legislature must be consulted—even if they are not binding on Parliament. And it makes no mention of downgrading a state to a Union Territory—which will result in not just loss of area but also power.
Article 356: is invoked when imposing President's Rule in a state. It allows the President of India to assume the powers of a state’s legislature and all functions of government. He can also declare that the Parliament will exercise the powers of the legislature. But it must be done only “in case of failure of constitutional machinery” in a state:
If the President, on receipt of report from the Governor of the State or otherwise, is satisfied that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of this Constitution, the President may by Proclamation [assume the powers specified above]
Point to note: President’s Rule is not intended to be endless—but is time-bound and tasked with a specific purpose. It must restore that failed constitutional machinery so the state can once again rule itself, as Gautam Bhatia underlines:
In simpler terms, Article 356 kicks in when governance in a state cannot be carried on in accordance with the provisions of this Constitution. The task of the union – under 356 – is to restore the state to situation where, once again, governance may be carried on in accordance with the provisions of this Constitution. This necessarily confines the powers exercised by the union to within the four corners of the constitutional scheme, and with a view to restoration.
What the government did: On December 19, 2018, a Presidential Order placed Jammu & Kashmir under President’s Rule. It declared that the powers of the J&K legislature will be “exercised by or under the authority of Parliament.” Fast forward, nine months later: On August 5, the Rajya Sabha—acting on behalf of the legislature—passed a resolution accepting the “reorganisation” of the state. QED. The government did a complete runaround Article 3’s requirement that the state legislature must be consulted—by first imposing President’s Rule.
Ok, wow, and what did the Court say about this?
Not very much. The ruling only said the following:
One: The government has the right to carve a Union Territory out of a state—under the powers vested by Article 3. The Court, therefore, upheld the creation of Ladakh as a UT.
Two: It shockingly ducked the question as to whether the government can turn a state into a Union Territory. CJI Chandrachud blithely declared "in view of the submission made by the solicitor general that statehood would be restored, we do not find it necessary to determine whether the reorganisation of the state of Jammu and Kashmir into two Union Territories… is permissible under Article 3.”
LiveLaw Managing Editor Manu Sebastian writes:
How can an empty promise made by the Government, without any binding commitment, obviate the need for a judicial determination on a substantive issue? The Court's avoidance seems to imply an implicit endorsement of the action, raising apprehensions about the potential misuse of such a method by a future government, especially when dealing with another State governed by a political opponent.
Critics say the ruling almost encourages future governments to use President’s Rule to do this again—and get away with it by vaguely promising to restore statehood at its own convenience.
Point to note: Only Justice Sanjiv Khanna flagged the consequences in his separate concurring judgement:
Conversion of a State into Union Territory has grave consequences, amongst others, it denies the citizens of the State an elected state government and impinges on federalism. Conversion/creation of a Union Territory from a State has to be justified by giving very strong and cogent grounds. It must be in strict compliance with Article 3 of the Constitution of India.
Three: It seemed to greenlight the misuse of President’s Rule. The petitioners argued that President’s Rule cannot be used to make fundamental and irreversible changes to a state—since the aim of Article 356 is to “restore” the state’s constitutional machinery—not change it. The CJI, however, seemed to wilfully misunderstand the argument:
Challenging the exercise of power on the ground of irreversibility would open the way for challenging every day administrative actions against which we have cautioned above. Hence, we cannot accept the proposition which has been urged on behalf of the Petitioners that the exercise of power by the President under Article 356 of the Constitution can be challenged on the ground that it has given rise to irreversible consequences.
The ruling clubbed the power to make administrative changes with “core, fundamental changes like the bifurcation and conversion of a State.”
As The Hindu notes, the ruling opens the door to all sorts of misuse:
A future regime at the Centre could impose President’s rule to carry out extraordinary actions through its own parliamentary majority that an elected government in a State may never do. Some examples could be ratification of Constitution amendments, abrogation of inter-State agreements, withdrawal of crucial litigation and bringing about major policy changes. The view that some of these may be restored by a subsequently elected government or House is of little consolation if actions taken under the cover of President’s Rule cause great damage to the State’s interests.
The bottomline: Power in India collects in the Centre—for all the talk of federalism. Union governments have mostly been able to do as they wish—running roughshod over state governments ruled by rivals (see: the queen of President’s Rule, Indira Gandhi). The Supreme Court surely doesn’t need to offer excuse for more of the same.
Reading list
LiveLaw Managing Editor Manu Sebastian’s critique of the judgement is a must-read. Balance it with a cautiously optimistic interpretation of the ruling by Gautam Bhatia. The Hindu’s editorial is scathing in calling out the Court’s abdication of duty. This pre-ruling Scroll piece lays out the Framers’ intent regarding Article 3—and the creation of states. The Hindu explains why we have UTs and states.
