The Jammu & Kashmir Reorganisation Bill 2019 that is pending in Parliament seeks to bifurcate the state into two Union Territories—Jammu and Kashmir with a legislature and Ladakh without one. The 2019 Bill was introduced in Parliament after the issuance of the Constitution (Application to Jammu and Kashmir) Order, 2019 by the President under Article 370(1) of the Constitution.
In this article, I’ll confine myself to the legal issues entailed by the 2019 Bill, as I have long maintained that the genesis of the Kashmir issue or its resolution is not located in Article 370 for reasons detailed in my book Unravelling the Kashmir Knot.
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It is well settled that the Constitution does not guarantee the territorial integrity of Indian states. Article 3 of the Constitution provides that Parliament may, by law, form a new state and alter the areas, boundaries or names of any state. The proviso to Article 3, however, inter alia provides that no Bill for such a purpose will be introduced in Parliament unless it has been referred by the President to the concerned state legislature for expressing its views.
So far, the only exception to this was the state of Jammu & Kashmir. Article 370 applies Article 1 to J&K, thereby recognising it as a constituent State within the Indian Union. The constitutional relationship of J&K with the Indian Union was, however, contemplated to be one of an autonomous republic within the Indian Union as crystallised in the Delhi Agreement, 1952, which was ratified by both Parliament and the state Constituent Assembly.
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The President, with the concurrence of the J&K government, then issued the Constitution (Application to Jammu & Kashmir) Order, 1954, under Article 370(1) which inserted into the Constitution provisions to give effect to the Delhi Agreement, 1952, and also applied further Articles of the Constitution to J&K (with modifications). These included Article 3 of the Constitution with an additional proviso that mandated that “no Bill providing for increasing or diminishing the area of the State of Jammu and Kashmir or altering the name or boundary of that State shall be introduced in Parliament without the consent of the Legislature of that State”. In other words, not only did J&K not merge its territory into the Indian Union but it explicitly preserved its territorial integrity as also identity.
Now, the 2019 Order supersedes the 1954 order and applies all the provisions of the Constitution to J&K. The validity of the 2019 order is debatable, but there is no doubt that it is in force unless and until it is struck down. Hence, the position that emerges is that by virtue of Article 3 of the Constitution, Parliament may by law alter the areas, boundaries and name of J&K without the consent of the state legislature. However, it is still a requirement of Article 3 for the 2019 Bill to be referred to the state legislature for expressing its views thereon.
But then, with J&K at present under President’s rule, there is no state legislature that can express its views on the 2019 Bill. And as all the provisions of the Constitution have been made applicable to J&K by the 2019 Order, Parliament can exercise the functions of the state legislature during President’s rule by virtue of Article 356 of the Constitution. Now the real question here is: should Parliament do so?
Now, Article 356 is not meant to be used to take far-reaching decisions but is an emergency provision to be resorted to sparingly in a situation where there is the breakdown of constitutional machinery in a state. The exercise of power under Article 356 is limited by time as provided in the article itself. It is a temporary arrangement only until the government of the state can be carried on in accordance with the Constitution.
While the Constitution does not guarantee territorial integrity of a state, it has been held by the Supreme Court to be federal or at least quasi-federal in nature. The 13-judge bench decision in Keshavananda Bharati (1973) has gone to the extent of viewing the federal character of the Constitution as part of its basic structure. Would it then be justifiable for Parliament to exercise the function of the state legislature (whilst the state is under President’s rule) in matters that profess to dismember the state itself as well as its identity? The obvious answer is no. Should the 2019 Bill become law in the present circumstances, it may be open to legal challenge on this front alone.
