Jammu & Kashmir Case | Constitution Does Not Allow Changing Whole State Into Union Territory : Sibal Tells Supreme Court [Day 3]

Arguing before the Supreme Court Constitution bench, which is hearing the batch of petitions challenging the dilution of Article 370 of the Constitution of India, Senior Advocate Kapil Sibal on Tuesday questioned the constitutionality of converting the State of Jammu and Kashmir (J&K) into a Union Territory (UT). 

Sibal is representing National Conference MP Mohammed Akbar Lone who has challenged the Presidential Orders scrapping the special status of J&K and the J&K Reorganization Act 2019 which bifurcated and downgraded the State into Union Territories of J&K and Ladakh.

Through his arguments, Sibal highlighted that the exercise of 'majoritarian power' to alter the character of J&K had grave implications for the constitutional values of federalism, separation of powers, and democracy. He then asserted that while Article 3 of the Indian Constitution provides for the reorganization of states, it does not extend to erasing the fundamental character of a state by converting the whole of if into a UT. Sibal argued that this would run counter to the principles of a representative form of government and the basic tenets of constitutional democracy. He said–

"The power under Article 3 does not extend to effacing a character of a State into a Union Territory. It is the interaction of the values of constitution of federalism, separation of powers, democracy that has to be taken."

Sibal also questioned whether the power vested in the Union government could be utilized to downgrade a state into a UT without the necessary consultation with the people of that region. He expressed concern that this exercise of power without proper consultation and consideration of the people's views could undermine the democratic process and the principles of representative governance. He contended–

"Can a state be downgraded to a Union Territory by Union on its own whim without consultation with the people? Those are the constitutional parameters to be applied on this momentous change bought by exercise of majoritarian power."

Drawing attention to the historical misuse of Article 356, Sibal also emphasized that its original intent was not to facilitate such sweeping changes to a state's constitutional status. He highlighted the necessity of adhering to constitutional parameters and respecting the will of the people, especially when making significant alterations to the governance structure.

Furthermore, Sibal argued that the essence of representative democracy was compromised when Parliament becomes the sole spokesperson for a region's wishes, disregarding the constitutional requirement to consider the views of the state. He pointed out that substituting the term "Union Territory" for "state" in the relevant constitutional clauses would render the provisions contrary to democratic norms.

The senior advocate also questioned the potential implications of this approach if extended to other states within the country. He argued that such a precedent could pave the way for the arbitrary conversion of other states into Union Territories, eroding the foundations of the representative form of government. 

"You can carve a UT out of a State but it does not allow the extinguishment of a state. You can carve out a UT if you have two or more states come together. But you can't create two UTs in a state. Essentially, there are two aspects to that. The text of the constitution doesn't allow you to do that and the fundamentals of constitutional democracy do not allow. Otherwise this power can be exercised any time," he argued.

Sibal warned that if this is permitted, it can happen to any State. "If you can do it to one, you can do it to all", he said saying that this can mean that tomorrow a state like Madhya Pradesh or any other state can be converted into a union territory.