Guest Post: In Re Article 370 and Problems of Federalism

[This is a guest post by Jai Brunner.]

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[Editorial Note: The present editor represents some of the petitioners in the In Re: Article 370 case, which is set down for hearing from August 2, 2023.]

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In In Re: Article 370, the Supreme Court will have the opportunity to not only rule on the amendments to Article 370, but also determine the constitutionality of the Jammu and Kashmir Reorganisation Act, 2019. Much has already been written about whether the Centre’s indirect abrogation of Article 370 is constitutional (see the excellent pieces on this blog here, here, here and here). Less attention has been paid to the Reorganisation Act. Whether the Union Parliament has the power to abolish a State and divide it into two Union Territories, has crucial implications for India’s federal arrangement. Article 1(1) of the Constitution states that “India, that is Bharat, shall be a Union of States”. If Parliament has the unrestricted power to destroy any State, then we might ask, can it simply convert India into a unitary state (i.e., on the lines of this case, a “union of union territories”)?

In this brief blogpost, I would like to tackle this issue by asking: is there any implied restriction in Article 3 on the Union Parliament’s power to alter the boundaries of existing States? Does this power extend to abolishing States entirely? The plain text of Article 3 never expressly uses words such as abolish, destroy, or extinguish. Article 3(a) does say that Parliament “may by law…form a new State by…uniting two or more States”, which implies that these two former States would be destroyed. Thus, a literal reading of Article 3 suggests that Parliament is vested with some power to enact laws that abolish States. Whether this power is unfettered is the contentious question. If there are no restrictions, then the Union Parliament could simply abolish India’s federal structure without even passing a constitutional amendment. Parliament could pass a law under Article 3 abolishing all States and, as per Article 4(2), this would not amount to a constitutional amendment. Surely this is impermissible, given that the Supreme Court has held that federalism is a basic feature of our Constitution (e.g. see SR Bommai), implying Parliament can never reduce India to a unitary state, not even via a constitutional amendment.

It is highly unlikely that the Supreme Court would uphold a law passed under Article 3 that abolishes all States. However, we are still left with the question of whether Parliament can destroy a single State, such as Jammu and Kashmir (“J&K”). In what follows I will examine the landmark case West Bengal v. Union of India (1963), which appears to advance a case for upholding the 2019 Reorganisation Act. I will attempt to show that West Bengal has, in truth, very little bearing on the present controversy. Turning to the Supreme Court’s jurisprudence on federalism, I will show how the petitioners in In Re: Article 370 could challenge the constitutionality of the 2019 Act.

Contextualising West Bengal v. Union of India

In the landmark judgment on Union-State relations in West Bengal v. Union of India (1963), the Supreme Court observed that Parliament has “wide power” to “alter the boundaries of States, and even to extinguish the existence of a State”. Authoring the majority opinion, Chief Justice BP Sinha observed that Parliament has the power under Article 3 to “alter the boundaries of any State”, including diminishing “its area so even to destroy [it]”.  Nevertheless, writing in 2016, eminent jurist MP Singh concluded that “it does not even seem to be a theoretical possibility” that Parliament could “put out of existence” a State (Mahendra Pal Singh, “The Federal Scheme” in The Oxford Handbook of the Indian Constitution [OUP 2016]). So, why does West Bengal set such a weak precedent for arguing that Parliament can freely abolish States?

Firstly, it is crucial to recognize that CJI BP Sinha did not make these observations while ruling on the correct interpretation of Article 3. The controversy in West Bengal had nothing to do with diminishing West Bengal’s boundaries. The Court was deciding if the Union could unilaterally acquire coal bearing areas owned by West Bengal. CJI BP Sinha made his observation that Parliament may “extinguish the existence of a State” in the context of rejecting West Bengal’s argument that it enjoyed absolute sovereignty over its property. Thus, we should view CJI BP Singh’s observations on Article 3 as obiter, i.e. non-binding (as Jahnavi Sindhu and Vikram Aditya Narayan have argued here).

Furthermore, a careful reading of Chief Justice BP Sinha’s observations, reveals that he never expressly states that there cannot be implied restrictions on Parliament’s power to destroy states. He merely observes that States enjoy “no constitutional guarantee against alteration of the boundaries of States”. He never goes on to say that this lack of constitutional guarantee extends to instances where a State is abolished.

Finally, one cannot apply West Bengal to the context of J&K, without acknowledging the (former) special status of the State. In his majority opinion, CJI BP Sinha largely ignores the asymmetric features of Indian federalism. CJI Sinha generalizes that India lacks the features of a “truly federal form of Government”. To demonstrate this, he says that the Indian Constitution is not an “agreement between independent and sovereign units to surrender partially their authority in their common interest and vesting it in a Union” – instead, the Indian Union was formed when sub-units “constituting a unitary State [in British India] which were non-sovereign were transformed by abdication of power into a Union”. To buttress this further, he says that in a truly federal arrangement “each constituent unit [ordinarily] has its separate Constitution by which it is governed in all matters except those surrendered to the Union” – Indian States of course do not have their own constitutions. While CJI Sinha is broadly correct, he ignores the exception created by the former State of Jammu & Kashmir. Not only did it have its own Constitution, but it was also a sovereign and independent State that partially surrendered its authority to join the Union, as is evidenced by the Instrument of Accession. Article 370 of the Indian Constitution expressly recognized this special status of J&K. What CJI Sinha ignores is that Indian federalism is asymmetric. The “Indian Constitution grants differential rights to certain States” (Louise Tillin, “Asymmetric Federalism” in The Oxford Handbook of the Indian Constitution [OUP 2016] chpt. 30). Thus, we cannot blindly apply CJI Sinha’s observations in West Bengal to J&K, given that J&K enjoyed special federal status.

Federalism restricts Parliament?

As is well-known, Parliament cannot enact any law that abrogates the basic structure of the Constitution (see Kesavananda Bharati). The Supreme Court has repeatedly recognized that federalism is a basic feature of the Indian Constitution, most famously in SR Bommai. Federalism necessarily requires that sovereign powers be distributed between the Union and the States. What this implies is that Parliament cannot enact laws that entirely abolish the sovereignty of States. Let us examine whether it follows that there ought to be an implied restriction on Parliament’s powers under Article 3.

Recently, in Gov’t of NCT Delhi v. Union of India, the Supreme Court clarified the nature of Indian federalism, while holding that the NCT Government has control over Delhi’s civil servants, rather than the Union. Authoring the judgment, Chief Justice DY Chandrachud observed that “any federal Constitution, at a minimum”, requires “two sets of government operate”. Such a model vests a minimum amount of sovereignty in the States. This is reflected in Dr. B.R. Ambedkar’s observations in the Constituent Assembly Debates, cited by CJI Chandrachud: “…Dual Polity under the proposed Constitution will consist of the Union at the Centre and the States at the periphery each endowed with sovereign powers…” (CAD 4 Nov 1948, 7.48.202). Inherently, if States enjoy sovereignty vested in them by the People, then the Union cannot have absolute power to extinguish them.

The State of J&K enjoyed even more autonomy than other States. The Instrument of Accession, whereby J&K acceded to the Union of India, specifies that J&K does not accept to be entirely subject to the Constitution of India. Further, the Schedule to the Instrument clearly delineates the limited domains in which the Union Parliament is competent to make laws for J&K – defence, external affairs, communications, and certain ancillary matters – which is further cemented by (unamended) Article 370(1)(b). Since the State of J&K entered the Union on the condition that it retain a minimum amount of sovereign autonomy, it follows that the Union Parliament cannot enact an ordinary law under Article 3 that entirely strips J&K of this sovereign autonomy.

Canvassing other case-law

In my view, the petitioners in In Re: Article 370 have a strong case to argue that federalism imposes an implied restriction on Parliament’s power to alter States under Article 3, preventing Parliament from destroying States entirely. However, they may have to work hard to convince the Court, as the existing case-law on Article 3 grants very expansive powers to the Union Parliament under Article 3. They will have to show that while Parliament may have expansive powers, these powers are nevertheless not absolute.

I have already addressed the six-judge bench ruling in West Bengal. While the Court did observe that Parliament may abolish States, this observation was arguably obiter. Further, the observation does not necessarily commit CJI BP Sinha to the view that there are no restrictions on Parliament’s power to abolish. Lastly, West Bengal cannot be blindly applied to J&K, given its (former) special constitutional status.

The other landmark judgment on Article 3 is Babulal Parate v. State of Bombay, delivered by  a three-judge bench of the Supreme Court. Babulal Parate merely confirms the vast power of the Union Parliament under Article 3 and offers no specific ruling on the abolishment of States. The Bench clarified the meaning of the Proviso to Article 3. While the Union must give the State Legislature an opportunity for “expressing its views” on any alteration to the area/boundary/name of the State, the Parliament is not legally bound by this advice. The Court has re-affirmed this position in Pradeep Choudhary. Hence, we may conclude that merely because a State objects to being abolished, this objection will not restrict Parliament’s law-making powers. However, it does not follow that there are no other restrictions on Parliament’s powers under Article 3 – and, as I have argued above, the basic feature of federalism ought to impose one such restriction.

Finally, the petitioner may have to address the precedent set by Mullaperiyar Environmental Protection Forum. In Mullaperiyar, a three-judge Supreme Court bench held that “law-making power under Articles 3 and 4…is not subjected to or fettered by Article 246 and Lists II and III of the Seventh Schedule”. In short, one cannot challenge the legislative competence of Parliament to enact a law under Article 3 with reference to the Seventh Schedule. The respondents in In Re: Article 370 may seek to use this precedent to buttress the view that other provisions of the Constitution cannot restrict Parliament’s power under Article 3. It should be relatively easy for the petitioners to counter. Firstly, the argument that the basic feature of federalism restricts Parliament’s power under Article 3, does not stem from any specific constitutional provision, but rather emerges from the structure of the Constitution as a whole. Parliament cannot enact any law that abrogates this basic structure of the Constitution. Secondly, Mullaperiyar is a weak precedent, which may need to be revisited – it has been contradicted by the two-judge bench judgment in Himachal Pradesh v. Union of India (2011): “under Article 3, Parliament cannot take away the powers of the State…in respect of matters enumerated in List II”.

The Supreme Court will hopefully resolve many of these issues when it delivers its judgment In Re: Article 370. It will have the opportunity to delineate the boundaries of Parliament’s powers under Article 3 and, in doing so, would clarify the nature of Indian federalism. This would have far reaching consequences not only for J&K, but also for the future of Centre-State relations for years to come.