The Central Government resolving to do away with the special Constitutional status granted to the State of Jammu and Kashmir passed a Bill abolishing J&K from being a State and sought the creation of two Union territories of J&K and Ladakh respectively. The government of the day through a Presidential order exercised under clause 1 of Article 370 has made the Constitution of India applicable through 'the Constitution (application to Jammu and Kashmir) order 2019 to the people of J&K. The question that has come to the fore ever since the Presidential order was issued is the validity of the Presidential Order which has bypassed the proviso to Article 370 which mandates consultation with the State Assembly. The issue at large also seems to be the legality of the dichotomization/bifurcation and subsequent christening of the places into Union Territories. The Center while using plenary powers under Article 3 of the Constitution of India has passed the J&K reorganization bill which proposes to bifurcate the State of J & K into two Union Territories.
Article 92 of the Jammu and Kashmir Constitution provides for the imposition of Governor's rule if at any time a situation has arisen where the government cannot be carried on in accordance with the provisions of the J&K Constitution. If a situation arises where the Indian central government has to impose President's rule, the Governor's rule has to be imposed for 6 months and thereafter President's rule may be imposed under article 356 of the Indian Constitution. The Jammu and Kashmir Legislative Assembly may be suspended by the Governor. Suspension of the assembly renders toothless the legislative powers of the members of the Legislative Assembly.
Accordingly, on the 21st of November 2018, Governor's rule was imposed in Jammu and Kashmir, a day after the Chief Minister of Jammu and Kashmir resigned. The Governor, Hon'ble Satya Pal Malik Dissolved the Legislative Assembly on the 21st of November 2018. President's rule was imposed on the 3rd of January 2019 after approval of the Union Cabinet and again on expiry after 6 months on the 3rd of July 2019 an extension of the President's rule was approved and imposed under the proviso to Article 356(4) of the Constitution of India by the Union Cabinet.
That the bifurcation of a State is done under Article 3 of the Indian Constitution, various questions have cropped up like whether a State can be bifurcated without due consultation of the legislative assembly? When a bill for bifurcation of States is sent to the particular State Legislature and the Bill is rejected unanimously or amendments are proposed, does the Parliament have the onus of considering the demands put forth by the State? If the particular State's assembly that is to be bifurcated is dissolved does the Constitution provide for bifurcation without ascertaining 'the will of people' by consulting the stakeholders? Is such a move by the Parliament antithetic to democratic values? or should the will of the people be upheld by offering participation of the State Assembly?
There also seems to be a conflict emerging out of the two Articles - one that grants powers to a union to take over the state versus one that is the 'will of the people'. The imposition of President's rule under Article 356 versus the President referring the bill to bifurcate a State under Article 3 to the State legislature for its views. As all reorganization bills affect the people as the physiography is altered is it time the 'will of the people' should be sought before such bifurcation is done by the Parliament? Apart from Article 3, Article 370 also under clause 3 under its proviso grants the right to the Constituent Assembly of Kashmir to abrogate Article 370 which now is an impossible endeavor as the constituent Assembly of J & K dissolved itself in the year 1957. So the question is whether the President through a Presidential Order has such plenary powers to repeal article 370 without due consultation of the people of J & K?
Renowned Jurist , Nani Palkhivala in his book,'We the People' while writing extensively on Center-state relations posits that the Constitution expressly provides for a 'Union government' rather than the 'Central government' and a further perusal of Article 3 brings to light the all-pervasive dominance of the 'CENTER' while exercising its powers which is inconsistent with the Constitutional scheme of the 'Union of States'. Several Articles within the Constitutional scheme expressly provide for a strong 'center'. For example under Article 246-254 -legislative power is heavily in favor of the Union, Entry 97 of List 1 of Schedule 7, residuary power is with the Parliament, Articles 352-360 Emergency powers lie with the center and also under Article 3 plenary powers lie with the center as held by the Hon'ble Supreme Court in the Mullaperiyar case (2006) that:
"..The powers under Articles 3 and 4 are paramount and are not subjected to nor fettered by Article 246 and Lists II and III of the Seventh Schedule".
Thereby expressly providing that only a consultative role of the States is sought and the Parliament has the plenary power with regard to the bifurcation of the states. The adoption of the consultative role of the States had been debated several times over the years since the adoption of the Constitution. The Supreme Court in as early as 1959 clarified in Babulal Parate vs The State of Bombay that;
"...All that is contemplated is that the Parliament should have before it the views of the State Legislatures as to the proposals contained in the Bill and then be free to deal with the Bill in any manner it thinks fit, following the usual practice and procedure prescribed by and under the rules of business."
The Supreme Court again in Pradeep Chaudhary and Ors v. Union of India defined the meaning of the word 'expression of its views',
"….While the power to introduce the Bill is kept with the Parliament, 'consultation' with the State Legislature although is mandatory but its recommendations are not binding on the Parliament".
Through these judgments, it is clear that Article 3 of the Constitution clearly confers the power to bifurcate in the exclusive domain of the Parliament. The state legislature is accorded only a consultative role meaning 'to express its views' which has no binding on the Parliament.
Though under Article 3 Plenary powers are given to the Parliament for bifurcation, shouldn't the matter be dealt with differently today? The situation is different unlike what it was during the framing of the Constitution where there existed 560 princely states and the suggestions and approvals of all those 560 States would have defeated the spirit of independence and reorganization of States and therefore plenary powers under Article 3 was given to the Center. There is a need today to consider whether the Constitution should be interpreted in the light of it being a living document. Such transformative Constitutionalism espouses guaranteeing the dignity of the individual by upholding Civil, political and socio-economic rights of the citizens through the 'spirit of the law' rather than the 'Letter of the law'. Whether the Bifurcation of a State against the 'Will of the People" can be justified? Whether the imposition of the Constitution of India on the people of J&K by the creation of a Union Territory is against their will as the state is not consulted? The most important question to delve into is to inquire whether Article 3 that accords plenary powers to the Parliament to bifurcate and form States or UTs violates federal principles and if it does violate then is it time that Article 3 be amended making the consent of the State Assembly mandatory and binding on the Parliament? or continue maintaining status quo and let political whims satisfy electoral prospects by misusing article 3.
Though statutes are considered a primary source of law, precedents based on the principle of stare decisis have played a vital role in developing constitutional morality in India over the years with the Judiciary playing a role in promoting transformative constitutionalism. Several important outcomes from S.R.Bommai v UOI deserve mention:
1. " ...Democracy and federalism are the essential features of our Constitution and are part of its basic structure".
2. "...The very enormity of this power undoing the will of the people of a State by dismissing the duly constituted Government and dissolving the duly elected Legislative Assembly must itself act as a warning against its frequent use or misuse, as the case may be…"
3. "...If only one keeps in mind the democratic principle underlying the Constitution and the fact that it is the Legislative Assembly that represents the will of the people and not the Governor the position would be clear beyond any doubt".
(Babitha N.S is an adjunct faculty of law at the University Law College, Bangalore University)
[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]