J&K Case | Degradation Of State Into Union Territory Impermissible Under Article 3: Senior Advocate CU Singh To Supreme Court[Day 8]

On the eight day of the Indian Supreme Court's hearing in the batch of petitions challenging the dilution of Article 370 of the Constitution of India, Senior Advocate CU Singh argued that the degradation of a State into a Union Territory was impermissible under Article 3 of the Indian Constitution. 

The Constitution Bench comprising Chief Justice of India DY Chandrachud, Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant was hearing the matter. 

In today's arguments, Senior Advocate CU Singh, representing petitioners Inderjit Tikoo (a Kashmiri activist), journalist Satish Jacob, and Communist Party of India leader M.Y. Tarigami, argued on the Jammu and Kashmir Reorganisation Act, 2019. For context, the Act in question bifurcated the State of Jammu and Kashmir into the Union Territories of Jammu, Kashmir, and Ladakh. 

The Reorganisation Bill was enacted in exercise of Article 3 of the Constitution of India. Thus, Senior Advocate Singh argued on whether Article 3 of the Constitution authorised the Union to pass a bill which converted a State into a Union Territory (UT).

Eighteenth Amendment Did Not Apply To J&K 

At the outset, Singh argued that the Eighteenth Amendment of the Constitution of India amended Article 3 of the Constitution (which deals with the formation of new States and alteration of areas, boundaries or names of existing States) to also include within its ambit UTs. Here, he asserted that the Eighteenth Amendment was not applicable to J&K on 5th August 2019. Thus, the nature of J&K could not have been altered. He said–

"Article 3 was not amended till the Eighteenth Amendment when those two explanations were inserted. Now the explanations have become the tail which is dragging the dog. Now any permutation and combination is available to the parliament under Article 3. This fiction that you can convert a State into UTs was never applied to the State of J&K."

He then moved to the object of Article 3 and stated that the underlying thrust of Article 3 was to support and enhance representative democratic governance, and not to degrade it. He asserted–

"If this interpretation of Article 3 is upheld, then it is the thin end of the wedge for democracy and federalism and the country as a whole. Because then any party in power at the centre, which also happens to be a party in power in a state, can just convert the state by a simple majority in state legislature and simple majority in parliament."

Elaborating further, he contended that there was no explicitly vested power granted to Parliament to degrade the constitutional status of a State to a UT. 

The CJI asked him–

"Is the conversion of a state into Union territories severable from abrogation of Article 370?"

Singh replied by stating that "the two were completely separate.”

Historical Context Shows That Article 3 Has Always Been Used For Increasing Self Governance

To prove that a state could not be downgraded to a UT, Senior Advocate Singh took the bench through the historical context of the formation of UTs in India. In order to do so, he primarily relied upon the Government of India Acts of 1919 and 1935. He stated that at the time, the Union was divided into Governors' Provinces and the Chief Commissioners' Provinces. Referring to the mirroring provisions of Article 3 in both these acts, he asserted that powers were used only for the alteration of boundaries and none asserted the right of the Governor-General to abolish a Governor’s Province and convert it into a Chief Commissioners Province. 

He then moved to the independent India, which he stated had States divided in 3 categories - Part A , Part B and Part C. Part A corresponded to the provinces of British India. Part B states included the former Princely States that merged with India and had Rajpramukhs and were subject to additional supervision by the Union of India. Part C states were governed by the Union in a unitary manner. Andaman and Nicobar Islands constituted a Part D state which had been a Chief Commissioner’s province under British India under the Acts of 1919 and 1935. Owing to this arrangement being unfeasible, it was proposed that the majority of Part C states should be merged with other states and the ones which could not be merged due to strategic or other considerations should be treated as territories. Accordingly, the 7th Constitutional Amendment was passed and it removed the distinctions between states and introduced the concept of UTs. 

However, as the UTs became 'viable units', they eventually got the status of a State. Elaborating upon this, Singh said–

"That is what has happened historically. By 4th August, 2019, there were 7 UTs left in India. All other UTs - once they became viable units- they were converted into a state."

Thus, he stated that historical progression showed that Article 3 was utilised only for greater self governance in form of providing statehood to different territories. He added–

"History of Articles 3 and 4 emanating from 1919 and 1935 Acts shows that the power to alter boundaries, change names etc was always used to increase self representation and democratic self government. There was no case of retrogration...Today there are only 6 UTs if you keep aside J&K. Even Dadra and Nagar Haveli and Daman & Diu have been merged into one in 2020. They've been made into one UT. These small non viable territories have remained - which aren't viable as states."

Conversion Of State Can Only Be Done By Article 368

Singh stated that while conversion of a State into a UT was impermissible, if at all it could be done, it could only be done under Article 368 as it clearly impinged on various constitutional provisions. In this context, he said–

"So it would require both special majority and ratification by more that 50% states...For Ladakh, and J&K both- the exercise which has been done is one which is outside the purview of Article 3, even if it was rightly done. This is not the scope of Art 3. The state comes with property, lands, consolidated funds, rights, contracts- it has absolutely sacrosanct powers under Article 73 read with Article 2." 

Highlighting the effects of conversion of J&K into a UT, Singh pointed out that the following constitutional provisions affected by the conversion–

1. Legislative powers under Article 246 of the Constitution read with the Seventh Schedule as applicable to Jammu and Kashmir were affected by the transfer of such powers from the State to the Centre.

2. Executive powers with the State under Article 162 with respect to List II and III were also denuded.

3. Article 73 which had a specific provision stating that Union cannot exercise powers of the State List was also affected. 

Raising concern over the same, he said–

"By a simple ordinary majority and Art 3- all these constitutional rights, many of which are a part of the basic structure of the Constitution, are wiped out!"

Therefore, he stated that the conversion could only take place through Article 368.