The Supreme Court on Wednesday raised a significant question regarding the Parliament’s authority to enact the Jammu and Kashmir Reorganisation Act, which divided the erstwhile state into two Union Territories, during the imposition of President’s Rule in 2018-2019.
A five-judge Constitution bench, headed by Chief Justice of India (CJI) DY Chandrachud, asked whether Parliament could pass such a law while Jammu and Kashmir (J&K) was under President’s Rule. The question was posed to senior advocate Rajeev Dhavan, who represented the Jammu and Kashmir People’s Conference, which is challenging not only the abrogation of Article 370 but also the imposition and extension of President’s Rule in the region.
The Jammu and Kashmir Reorganisation Bill was introduced and passed in the Rajya Sabha on August 5, 2019, followed by the Lok Sabha on August 6. It received presidential assent on August 9, 2019, formalizing the bifurcation of the state into the Union Territories of Jammu and Kashmir, and Ladakh.
Supreme court’s query on parliamentary power during president’s rule
Chief Justice Chandrachud posed the critical question: “Can Parliament enact a law (Jammu and Kashmir Reorganisation Act) during the subsistence of a proclamation under Article 356 in exercise of its power?” Article 356 of the Indian Constitution allows the imposition of President’s Rule in a state in case of a failure of the constitutional machinery.
Responding to the question, Dhavan stated that Parliament does possess the authority to pass laws, but these laws must adhere to the limitations set out in Articles 3 and 4 of the Constitution. Article 3 pertains to the formation of new states or changes to existing states’ territories, while Article 4 allows for consequential amendments to the First Schedule (naming the states and Union Territories of India) and the Fourth Schedule (allocating seats in the Rajya Sabha).
Article 3 and 4 in focus
Dhavan explained that Article 3 mandates that any bill affecting a state’s area, boundaries, or name must be referred to the concerned state’s legislature for its views. This referral is a constitutional requirement before Parliament can proceed with such legislation. The Jammu and Kashmir Reorganisation Act, according to Dhavan, violated this mandatory provision as J&K was under President’s Rule at the time, and the state legislature was dissolved.
He emphasized that the reorganization of J&K could not have been legally executed while the region was under President’s Rule. “Parliament cannot substitute itself for the state legislature, nor can the president act in place of the governor,” Dhavan argued, asserting that the mandatory provision for referring the bill to the state legislature had been suspended in a manner that violated the Constitution.
Suspension of constitutional provisions
Dhavan contended that the Centre’s move effectively amended the Constitution by overriding the requirement to consult the state legislature. He warned that this approach was “subversive” of the Constitution, as it undermined the federal structure and the safeguards built into the system.
“If the suspension of the mandatory provision under Article 3 fails in the eyes of the law, the imposition and subsequent extension of President’s Rule also fails,” Dhavan argued. He maintained that the Jammu and Kashmir Reorganisation Act was unconstitutional because it violated the procedural safeguards laid down in Articles 3 and 4, as well as Article 370, which had granted special status to J&K before its abrogation.
Presidential powers under article 356
During the hearing, CJI Chandrachud further asked whether the president could suspend constitutional provisions under Article 356 during President’s Rule. Article 356(1)(c) allows the president to make necessary provisions, including suspending parts of the Constitution, to achieve the objectives of the proclamation of President’s Rule.
Dhavan acknowledged that the president has the power to suspend constitutional provisions but argued that this power is limited. “The president cannot expand his authority to the extent of suspending mandatory provisions, such as those under Article 3,” he said. He cautioned that allowing such an interpretation would give the president unchecked power to amend any part of the Constitution.
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The bench, also comprising Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant, pressed Dhavan on the potential for expanding presidential powers. CJI Chandrachud noted that the Constitution’s language, which includes the terms “incidental” and “supplemental,” could be read to widen the president’s authority in certain cases. Dhavan, however, maintained that these powers should be interpreted narrowly to prevent the erosion of constitutional safeguards.
Conclusion of arguments
Dhavan concluded his arguments by asserting that President’s Rule could not override the procedural requirements of Articles 3 and 4, nor could it be used to bypass the special provisions of Article 370. He stressed that any action taken during President’s Rule must respect the constitutional boundaries established to protect federalism and democratic processes.
The hearing on the constitutionality of the abrogation of Article 370 and the reorganization of Jammu and Kashmir remains ongoing, and the case will continue on Thursday. The court’s decision is expected to have profound implications for the legal and political future of the region.
On August 10, the Supreme Court had remarked that the accession of Jammu and Kashmir to India in 1947 was “complete,” and questioned whether Article 370, which provided special status to the region, was ever intended to be permanent. The case has reignited debates over state autonomy, federalism, and the limits of parliamentary power during President’s Rule.
