A Hard Year For Federalism— Part 4 of the interview with P.D.T. Achary

In the fourth part of this The Leaflet exclusive interview, one of India's foremost constitutional and parliamentary procedure experts, P.D.T. Achary, says that the Supreme Court's stance on Article 356 In Re Article 370 judgment may open a can of worms.

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Read Part 1 here.

Read Part 2 here.

Read Part 3 here.

Aakritee Raj: Since we are discussing Kashmir, I want to bring up Article 370 as it reverberates with the political landscape.

Jammu and Kashmir historically moved in the opposite direction of Delhi. Delhi seeks to lift itself from being a Union territory to a state while Jammu and Kashmir have been brought down from a 'super' state to two paltry Union territories.

What are your thoughts on the implementation of the Jammu and Kashmir Reorganisation Act, 2019, in light of Article 3 of the Indian Constitution and its proviso?

P.D.T. Achary: I would like to say that Article 3 grants substantial powers to the Parliament, allowing it to change state boundaries, change state names, alter state sizes (either decrease or increase them), and create new states and Union territories.

However, a crucial and unanswered question is whether Parliament possesses the authority to convert a state into a Union territory.

Sadly, the Supreme Court did not address this fundamental question in the specific case related to the conversion of Jammu and Kashmir into a Union territory. Despite its relevance, the court deferred the decision, awaiting a more suitable case in the future.

This choice allows the government to repeat similar actions in different states, creating a big concern.

Upon examining Article 3, I find no explicit provision granting the Parliament the power to convert a state into a Union territory. Two primary reasons support this assertion.

Also read: Article 370 verdict: A missed opportunity to rein in an unrestrained exercise of power

Firstly, there is no clear mention of a state's conversion into a Union territory within the Article. The first part of the Article empowers the Parliament to form a new state, with an explanation including Union territories in the definition of a state.

The main aspect here is that the Parliament can create a new Union territory by separating a portion of a state. If the intention was to convert an entire state into a Union territory, the Constitution would have explicitly stated so.

Therefore, Article 3 specifies the formation of a Union territory by separating a part of a state, not the conversion of an entire state.

Therefore, my conclusion is that Article 3 does not provide for that. Article 3 does not confer this power on the Parliament to convert a state to the whole Union territory. It can create a Union territory by separating a part of a state.

A.K.: So is the Supreme Court's affirmation of Ladakh being made into a Union territory valid according to you?

P.T.D.A.: It is valid. The Parliament has the power to carve out a Union territory from a state. However, it cannot convert an entire state to a Union territory.

The second point is if the Parliament has the power to convert an entire state to a Union territory, can it convert all states to Union territories?

Doing so will go against Article 1, which says that India shall be a union of states, not a union of Union territories.

Therefore, India has to remain a union of states only.

So long as the Constitution remains in operation, one cannot convert the whole state to a Union territory, but you can create a Union territory out of a state.

A.K.: So what stops the Union government from creating or bifurcating Union territories out of every other state? One can just take 75 percent of Punjab and make it into a Union territory.

P.T.D.A.: Theoretically, it is possible, but practically, nobody will do that.

Also read: In Re Article 370 judgment: Supreme Court ratifies one vidhan, pradhan and nishan

A.K.: So moving to Article 356, which states: "The President may declare that the powers of the legislature of the state shall be exercised by or under the authority of the Parliament."

Now, petitioners in the Article 370 case had suggested that there is a difference between lawmaking and non-lawmaking powers of the state legislature, arguing that only legislative and not constituent power is transferred to the Parliament under the President's rule, as Article 356 pertains to President's rules.

The Chief Justice of India Dr D.Y. Chandrachud stated that there is no such distinction in Article 356. He further noted that interpreting the phrase "powers of the legislature to allow Parliament to exercise all constitutional powers of the legislative assembly" would limit the power of the state.

However, he continued to state that the constitution recognises such reduction of federal power when a proclamation under Article 356 is in effect.

A.K.: What is the import of this statement?

P.D.T.A.: If we examine Article 356 closely, the first clause specifies that the President can exercise the powers and functions of the government and the governor.

In the case of the state government, the governor holds the powers and functions of the government. As the governor is part of the government, these functions and powers are transferred to the President for exercise.

However, when it comes to the legislature, the term "functions" is missing. The Article mentions only the powers of the legislature taken over by the President, not the functions.

The two primary powers of the legislature are lawmaking and passing the budget. Other activities fall under these functions.

Another inherent aspect of the legislature is the authority to punish individuals breaching the house's privilege. The issue here pertains to the advisory function of the state legislature.

The question is whether the legislature can provide advice, and if the President, having taken over the legislature's administration, can exercise this particular function. However, holding the latter view is incorrect because the President has not assumed the functions of the legislature.

Also read: In re Article 370 hearings: A blow-by-blow account

Giving advisory opinions is solely a function of the legislature, not a power. Power implies a necessary exercise, while functions may or may not be exercised.

For example, in the case of a Bill altering the state's name or boundaries, the President must seek the legislature's opinion. However, the President is not bound by that opinion. If the state legislature chooses not to provide an opinion, there is no mandatory provision or power; it remains a function of the legislature.

A.K.: You are making a very subtle but important distinction here.

P.T.D.A.: Therefore, the formulation by the Supreme Court, in my humble view, is not correct.

The President cannot exercise the function of the legislature, namely, to give advisory opinions. That has not been taken over by the President. It is clear from a plain reading of the Article.

If you read it carefully, you will find it. This aspect has not been explained or dealt with by the Supreme Court as the Solicitor General of India Tushar Mehta stated that statehood will be restored in due course. But it is yet to be restored.

A.K.: As we wrap our discussion, the picture of our federal system that emerges from this discussion seems to be a considerably strained one. The wall separating the Union and the state seems to be riddled with cracks and is getting thinner by the month.

Any last words on the prospects for 2024?

P.D.T.A.: In 2024, we are going to have the general elections and we will have a new government. So let us look forward to having a good government in place. That is what every citizen hopes for.

A.K.: Thank you so much for joining us. 

Read Part 1 here.

Read Part 2 here.

Read Part 3 here.

Transcribed by Shrikha Gowri.