Reorganization Of Jammu And Kashmir Under Presidential Order 2019: Constitutionally Wobble

Article 1 defines the territory of India in accordance with Schedule 1 of the Constitution, which in turn defines the territory of the State of Jammu and Kashmir as “the territory which immediately before the commencement of this Constitution was compromised in the Indian State of Jammu and Kashmir”. Article 3 allows the Parliament to form new states and alter area, boundary or name of an existing state by law provided where the proposed Bill “affects the area, boundaries or name of any of the States”, the Bill is Constitutionally required to be referred to “by the President to the Legislature of that state for expressing its views thereon within such period as may be specifies in such reference or within such further period as the President may allow,” and it is only after the expiration of this period that such Bill can be scheduled in the Parliament.

The special status of Jammu and Kashmir notwithstanding, Article 3 burdens consultation with the state legislature, which is democratically elected legislative body, concerned in every case where the area, boundary or the name of a state is to be altered by law. The prerequisite is ingrained in the federal character of the Constitution, which is part of the Basic Structure of the Constitution as the 13- Judge Constitution Bench of the Supreme Court held in Kesavanandan Bharti vs. State of Kerala, (1973) 4 SCC 225. Therefore, acting under Article 3 to alter area, boundary or the name of a state when the State Assembly is not in session and there is President’s Rule in the Concerned State, is contrary to the letter and spirit of Article 3 because then it’s the President on both the sides, and, in effect, its President consulting President, which is an illogical arrangement and constitutionally vulnerable. This is specifically what has been done in Jammu and Kashmir by the Jammu and Kashmir Reorganisation Act, 2019, which is clearly unconstitutional, being in contravention of the directive of Article 3 even if we pay no attention to the special status of Jammu and Kashmir under Article 370, the Sub-clause (c) of Clause (1) of which bars the application of Article 3 to the State of Jammu and Kashmir by obligatory implication, and the bar can only be detached by a constitutional amendment to Article 370 under Article 368, which has not been carried out with soul.

Therefore it is a double contravene of the constitutional provisions in the reorganization of the State of Jammu and Kashmir. First, the implied bar of Article 370 (1)(c) has been ignored and, second, the necessary requirements of the Article 3 has not been abided by. Instead what has been done in name of compliance is nothing short of a fraud on the Constitution, the far-reaching outcomes can only be devastating for the federal character of the Indian polity enshrined in the constitution as a part of its sacrosanct Basic Structure.

Constitution of India allows the Union to have an upper hand in certain matters, but it also makes states autonomous in their own domains which is what the constitutional courts have consistently held, and which is also in the best interests of a society as diverse and heterogeneous as India.

True and an unadulterated federalism is the soundest guarantee against local dissatisfaction festering into local political disturbances, which, in a bad case, might threaten national integrity. Thus, the federal structure preserved in the Constitution is not a trifle to be intervening with. It is a part of the Basic Structure for sound practical reasons rooted in the most elemental principles of good governance.

Therefore, the power under Article 370(1) cannot be construed to authorize the Union Executive to erode and/or circumvent the provisions of Article 370 itself because that would make article 370 a self-obliterating provision, and no provision of law, constitutional or otherwise can be misread to that effect, which means that in so far the 2019 Presidential Order issued under Article 370 (1) seeks to have the “Constituent Assembly of the State” read as the “Legislative Assembly of the State” under Article 370(3), it exceeds the power conferred upon the President under the Article 370(1) and is thus ultra vires the provision it invokes.

The assertions  hereinabove makes it quite clear that the 2019 Presidential Order and reorganization of the State of Jammu and Kashmir is inconsistent with and in contravention of the scheme, spirit and language of Article 370 and, is thus, constitutionally unsound. The 1954 Presidential Order with all changes made to it time to time through other Presidential Orders is on a different footing simply because it does not seek to extend the whole of the Constitution to Jammu and Kashmir, and by not doing so it remains within the ambit of Article 370 (1).

S Swati Shet

Assistant Professor, Department of Law, Kalinga University,

Email: swati.shet@kalingauniversity.ac.in

Reference/Citation

1. https://www.icnl.org/research/library/india_consitutionindia2004/
2. https://ijcl.nalsar.ac.in/wp-content/uploads/2020/08/9IndianJConstL106_Mahajan.pdf