In the context of the hearing in the Supreme Court on the scrapping of Article 370, a crucial question that should have been dealt with is the power of the Indian Parliament to convert a state to a Union territory. The emphasis in the elaborate arguments senior counsels on both sides advanced in the court was on the constitutionality of the changes made in Article 370 by Parliament. So, whether Parliament can convert a state to a Union territory has remained unaddressed.
Article 3 of the Constitution defines the powers of Parliament to effect changes in states’ physical form and status. For example, Parliament can enact a law to form a new state by separating a particular territory from an existing state, uniting two or more states or parts of states, or uniting any territory to a part of any state. Parliament also has the power to increase or diminish any state’s area and alter a state’s boundaries or name. Explanation 2 of Article 3 clarifies that Parliament can also form a new state by uniting a part of any state to another state.
Similarly, a part of a Union territory can be united to another Union territory and form a new Union
territory. Thus, Article 3 exhaustively deals with the dimension of Parliament’s power to alter the physical form of a state or Union territory. The conversion of the state of Jammu and Kashmir into two Union territories has brought into focus for the first time the power of Parliament to convert a state into a Union territory. There is an apprehension in some quarters that the Union government can, with its large majority in both Houses of Parliament, convert any state into a Union territory and thus take over the control of that state. After Kashmir’s conversion, it is no longer an impossibility.
Moreover, there is a general perception that Parliament has all the power to change the status of a state in any manner it likes. It is, therefore, necessary to take a closer look at the provisions of Article 3 of the Constitution to understand the extent of Parliament’s power to change the shape and status of the Indian states. A closer examination of Article 3 would reveal that Parliament does not possess the power to convert a whole state into a Union territory. There are three points to validate this proposition. Firstly, Article 3 sets the limit on Parliament’s power to change the status of a state. It would mean that Parliament cannot change the status of a state beyond what Article 3 permits.
Explanation 1 under Article 3 says that the ‘state’ mentioned in that Article, except the proviso, includes Union territory. Thus, according to this explanation, Parliament can form a new Union territory by separating a part of a state. This explanation shows that Parliament can form a Union territory only by separating a territory from an existing state. In other words, Parliament cannot convert a whole state into a Union territory.
If the Constitution makers had intended to confer on Parliament the power to convert an entire state into a Union territory or two, then Article 3 would not have used the words “separation of territory from any state”. These words make it abundantly clear that a new Union territory can be formed by separating a territory from a state and not by converting the whole state into a Union territory. If the whole state were to be so converted, then this part of Article 3 would become redundant, which is not the constitutional scheme.
Secondly, Article 1 says that India shall be a Union of States. Some judicial comments that India has an indestructible Union with a destructible State remain in judicial records. But it must be stated here that India can remain only a Union of States. The destructible State does not square with the idea of India being a Union of States. If Parliament is empowered to convert one state into one or two Union territories, logically, it will have the power to convert all the states into Union territories. Then, India will be a Union of Union territories. Is it possible under the Constitution? The simple answer is that the Constitution has not vested such power in the Indian Parliament. The position under the Constitution is that Parliament does not possess the power to convert a whole state into a Union territory.
Thirdly, although the Constitution of India does not use the term ‘federation’, India is called a federal country. Moreover, the Indian federal system is a part of a basic structure, which means Parliament cannot amend the Constitution or pass a law that would alter the Republic’s federal character. Converting a whole state into a Union territory amounts to negating the federal structure. We must not forget that the doctrine of basic structure propounded in the Kesavananda Bharati judgment has saved the constitutional system and parliamentary democracy in India. But for this epoch-making judgment, the Indian political class would have changed the Constitution beyond recognition.
Article 368 makes it too easy for politicians who control Parliament to amend the Constitution. The facile argument that since Parliament reflects the will of the people it must have the absolute power to change the Constitution ignores the fact that Parliament is controlled by the majority party that runs the government. Since the members of Parliament are not free to deviate from the party line, they approve whatever changes the executive wants in the Constitution without question. That makes it possible for Parliament to approve a bill that seeks to convert a full-fledged state into a Union territory or a bill that seeks to take away the essential powers of a federal unit.
The Indian Parliament always reflects the views of the executive. India’s parliamentarians are not lawmakers, as this term is understood in the West, but only law-approvers because most of them approve what the draftsmen produce.
P D T Achary
Former Secretary-General, Lok Sabha
(pdt.achary@gmail.com)