Can Parliament enact law to divide J-K during central rule, SC wants to know

The Supreme Court on Wednesday asked whether Parliament could have enacted the Jammu and Kashmir Reorganisation Act, which divided the erstwhile state into two Union territories, during the subsistence of President's rule in  2018-2019.

The Jammu and Kashmir Reorganisation Bill was tabled and passed by the Rajya Sabha on August 5, 2019, and was tabled and passed by the Lok Sabha the next day. It received presidential assent on August 9, 2019. 

A five-judge bench headed by Chief Justice DY Chandrachud posed this question to senior advocate Rajeev Dhavan, appearing for Jammu and Kashmir People's Conference which has, apart from challenging the abrogation of Article 370 of the Constitution, contested the imposition of President's rule in the erstwhile state on December 19, 2018, and its extension on July 3, 2019, for six months.

"Can Parliament enact a law (Jammu and Kashmir Reorganisation Act) during the subsistence of a proclamation under Article 356 in exercise of its power?" the chief justice asked Dhavan. 

Dhavan replied that Parliament can pass a law, subject to all limitations described in Article 3 and 4 of the Constitution.

Article 3 says Parliament can by law 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. It can increase the area of any state, diminish the area of any state, alter the boundaries of any state, alter the name of any state:

"Provided that no Bill for the purpose shall be introduced in either House of Parliament except on the recommendation of the President and unless, where the proposal contained in the Bill affects the area, boundaries or name of any of the states, the Bill has been referred by the President to the legislature of that state for expressing its views thereon within such period as may be specified in the reference or within such further period as the President may allow and the period so specified or allowed has expired."

Article 4 allows for consequential changes in the Ist Schedule, ie, names of the states in the Union of India and IVth Schedule, ie, the number of seats allotted in the Rajya Sabha for each state.

Dhavan told the bench, also comprising Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai and Surya Kant, that there is a mandatory condition under Article 3 and 4 of the Constitution dealing with the formation of new states and alteration of areas, boundaries or names of existing state where the President has to refer the matter to the state legislature. 

Dhavan, who was arguing on the sixth day of hearing on the batch of pleas challenging the Centre's decision to abrogate Article 370, said reorganisation of the state could not have been done when the state was under the proclamation of Article 356 (imposition of President's rule).

He said Parliament could not have substituted itself for the state legislature or the President for the governor. 

"The notification pertaining to Jammu and Kashmir's Reorganisation of 2019 created a constitutional amendment in Article 3 by suspending the mandatory provision of Article 3 (a reference by the president to the state legislature). It is a constitutional amendment which is subversive of the Constitution itself.

"If this suspension of mandatory provision fails in the eyes of law, the President’s rule will fail and its extension in July, 2019 also fails," Dhavan said. 

He asserted the Centre virtually amended the Constitution and that the entire Jammu and Kashmir Reorganisation Act emanates from Article 3 and 4 of the Constitution.

CJI Chandrachud asked Dhavan, "How do we deal with Art 356 (1)(c) of the Constitution? Does the President have the power to suspend certain provisions of the Constitution during the operation of proclamation under Article 356?" 

Article 356 (1)(c) of the Constitution says in case of failure of the constitutional machinery in state, the President on receipt of report from the governor of the state, may issue a proclamation to make such incidental and consequential provisions which according to him is necessary or desirable for giving effect to the objects of the proclamation, including provisions for suspending in whole or in part, the operation of any provisions of the Constitution relating to any body or authority in the state. 

”Yes," Dhavan replied, adding "The President can suspend a provision of the Constitution but it has to supplement the proclamation. Here, in this case, this goes beyond supplementing and a mandatory provision under Article 3 is actually taken out.” 

The CJI then asked Dhavan that normally when the legislature uses the word ”means” and ”includes” it is actually an indication of expanding the power.

”So, when the Constitution says 'make incidental and supplementary provisions' and then says 'including', this seems to widen the ambit of the earlier part. 'Including' would mean that what was otherwise not a supplementary or incidental provision, it is within the ambit of presidential proclamation. Isn't it?” the bench told Dhavan. 

CJI Chandrachud told Dhavan if the President in a proclamation suspends the operation of any provision of the Constitution, then whether it is amenable to adjudication in a court of law on the ground that it is not incidental or supplemental.    

The senior lawyer replied, ”I have never seen a provision which actually takes away a mandatory provision. This is exceptional. If you expand the ambit of Article 356(1)(c), then you will say that the President has a card to amend any part of the Constitution. Article 356(1)(c) has to be read with a mandatory provision which it cannot dilute. 

”The words 'necessary' or 'desirable' are not carte blanche powers of the President. Could he have suspended Part III of the Constitution (that relates to fundamental rights) under Article 356 of the Constitution? It has to be given a limited meaning,” the senior lawyer said, adding that Article 356 is an exception which overrides federalism and it brings down democracy in a state.

Dhavan, who argued for nearly four hours, said during the President's Rule, Articles 3 and 4 and Article 370 cannot be invoked.

"Why? Because they have conditionalities. The conditionality is specific to the legislature of the state...neither Parliament nor President can substitute the legislature or the governor,” he said.

Dhavan concluded his argument saying President's rule cannot override Article 370 or Articles 3 and 4 or substitute the executive and legislature of the Union for the executive and legislature of Jammu and Kashmir.

”Articles 3 and 4 of the Indian Constitution have special application to Jammu and Kashmir and require the consent of the Jammu and Kashmir legislature. President's rule provisions cannot obviate the provisions of Article 3 and 4 as also those of Article 370(1) as the requirements of consent, consultation, and concurrence therein are mandatory,” he asserted. 

The hearing remained inconclusive and will continue on Thursday.

On August 10, the top court had said the surrender of Jammu and Kashmir's sovereignty to India was "absolutely complete" with the accession of the former princely state in October 1947, and it was "really difficult" to say that Article 370 of the Constitution, which accorded special status to the erstwhile state, was permanent in nature.

Several petitions challenging the abrogation of the provisions of Article 370 and the Jammu and Kashmir Reorganisation Act, 2019, which split the erstwhile state into two Union territories -- Jammu and Kashmir, and Ladakh -- were referred to a Constitution bench in 2019.