The Limits of Parliamentary Power Under Article 3

The provision may seem complicated on a first reading as it offers a number of permutations and combinations by which States and Union Territories may be combined to create a new entity.

Violation of Principle of Federalism

The federal structure of the country means that States are autonomous units, and that control over matters fundamental to the governance of the State such as public order, police, public health, agriculture, water, and communication are exercised by the legislature elected by the people of that State. Voters often choose different Governments at the Centre and in their State based on their evaluation of which party is better suited to serve national issues and which party is better suited to handle issues of local governance. The Central Government cannot, unless there is a breakdown of constitutional machinery in the State, interfere with powers reserved to the State.

Has This Ever Been Done Before?

If the downgrading of a State to a Union Territory were permissible, it would have become the modus operandi of all Central Governments with strong majorities to take over control of the States that they did not control electorally. Yet, while the country has gone through its share of reorganization of States, a State has never been extinguished by converting it into one or more Union Territories for the Central Government to control. One may seek to counter this statement with the example of Delhi, which was a “State” and was made a Union Territory in 1956 under the State Reorganization Act, 1956. However, Delhi was a State in “Part C” of the First Schedule of the original Constitution. States included in Part C were effectively similar to Union Territories and were not given the same status as other States. This can be understood by seeing how both States in Part C of the original Constitution and most of the Union Territories included in the amended Constitution were to be “administered by the President”, acting through an administrator appointed by her. In 1956, Parliament amended the First Schedule of the Constitution through the Seventh Constitution Amendment Act , whereby it removed “Part C” and introduced the concept of Union Territories. Section 17 of the Act tellingly stated that the heading of Part C of the First Schedule would be changed to Union Territories. Thus, the conversion of any Part C State into a Union Territory is no precedent for the Bill pertaining to Jammu & Kashmir.

Has the Supreme Court Ever Dealt With This Issue?

In seeking to defend the Bill against this objection, the Central Government may attempt to rely on a judgment of the Supreme Court passed in 1963, where the Court observed that “ Parliament is … invested with the authority to alter the boundaries of any State and to diminish its area so as even to destroy a state with all its powers and authority. ” This observation was made by the Court in the case of State of West Bengal v. Union of India , where the State of West Bengal had challenged the competence of Parliament to enact a law authorizing the Central Government to acquire land within the territory of States for the purpose of mining coal.

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Parliament Doesn’t Have the Power to Downgrade J&K’s Status To UT

All citizens should be worried about the precedent this move sets for the future of federalism in India.

Jahnavi Sindhu and Vikram Aditya Narayan

Updated: 08 Aug 2019, 5:07 PM IST

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With the passage of the Jammu and Kashmir Reorganization Act, 2019, the number of States in the Union of India will reduce from 29 to 28 and the number of Union Territories will increase from 7 to 9. The Act, by splitting the State into two Union Territories of Ladakh and Jammu & Kashmir, extinguishes the State of Jammu and Kashmir.

This is not merely a change of nomenclature or mere semantics, but a move that raises grave and fundamental questions about the nature of India’s constitutional democracy, which is founded on a principle of federalism.

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Topics: Jammu and Kashmir Federalism unconstitutional

Published: 08 Aug 2019, 5:04 PM IST