IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

PUBLIC INTEREST LITIGATION

IN RE: ARTICLE 370 OF THE CONSTITUTION

WRIT PETITION (CIVIL) NO. 1062 OF 2019

IN THE MATTER OF:

Inder Salim @ Inderji Tickoo and Satish Jacob … Petitioners

Versus

Union of India and Ors. … Respondents

AND

IN THE MATTER OF:

WRIT PETITION (CIVIL) NO. 1210 OF 2019

Mohammed Yousuf Tarigami … Petitioner

Versus

Union of India and Ors. … Respondents

WRITTEN SUBMISSIONS OF MR. CHANDER UDAY SINGH, SENIOR

COUNSEL ON BEHALF OF THE PETITIONERS
(TIME SOUGHT: 4 HOURS)

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 TABLE OF CONTENTS

I. INTRODUCTION ..................................................................................... 3
II. ARTICLE 3 DOES NOT EMPOWER PARLIAMENT TO ENACT A LAW WHICH HAS
THE EFFECT OF BYPASSING THE NECESSITY OF A CONSTITUTIONAL
AMENDMENT UNDER ARTICLE 368; THE RIGOURS AND SAFEGUARDS PROVIDED
TO THE STATES UNDER ARTICLE 368 CANNOT BE SKIRTED BY RECOURSE TO AN
ORDINARY LEGISLATION UNDER ARTICLE 3. ................................................ 10

III. THIS HON’BLE COURT OUGHT TO INTERPRET ARTICLE 3 IN A MANNER

THAT PRESERVES THE BASIC FEATURES OF FEDERALISM, DIVISION OF POWERS
BETWEEN THE UNION AND STATES, AND THE PRESERVATION OF DEMOCRACY14

a. The text and structure of Article 3................................................. 15

b. History and Practice ........................................................................ 20
c. The principle underlying Article 3 .................................................... 28
IV. IN THE ALTERNATIVE, THE POWER UNDER ARTICLE 3 IS SUBJECT TO
IMPLIED LIMITATIONS................................................................................. 34

V. THE DEGRADATION OF A STATE INTO A UNION TERRITORY AFFECTS

ENTRENCHED CONSTITUTIONAL POWERS UNDER ARTICLE 246 READ WITH THE
SEVENTH SCHEDULE ................................................................................ 37
VI. THE HISTORY OF INDIAN FEDERALISM AFFIRMS THE PETITIONERS’
READING OF ARTICLE 3 ............................................................................ 39
VII. CONCLUSION .................................................................................. 43

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 I. INTRODUCTION
1. These written submissions are filed in compliance with the order of

this Hon’ble Court dated 11th July 2023, in the matter now titled “In

Re: Article 370 of the Constitution.”

2. The petitioners in both these petitions have impugned, inter alia, the

Presidential Order number C.O. 272 dated August 5, 2019, the

addition of clause (4) to Article 367 of the Constitution of India as

applied to Jammu and Kashmir, the declaration under clause (3) of

Article 370 effected by C.O. 273 dated August 6, 2019, and have

challenged all other aspects of the abrogation of Article 370. In

addition, the petitioner in W.P. (C) No. 1210 of 2019, which was filed

after the enactment of the Jammu and Kashmir Reorganisation Act,

2019, has also challenged the said Act on diverse grounds set out

in the Petition.

3. However, in view of the suggestion by this Hon’ble Court that

counsel should divide up the various challenges and issues, counsel

in the present written submissions confines himself to issues

pertaining to the constitutionality of the said J & K Reorganisation

Act. On all other aspects the petitioners respectfully adopt the

written submissions filed by Mr. Raju Ramachandran, senior

advocate, and Mr. Gopal Sankaranarayanan, senior advocate, while

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 reserving their right to address oral arguments on any of the issues

contained therein, should the need arise.

4. In these written submissions, petitioners impugn the constitutional

validity of the Jammu and Kashmir Reorganisation Act of 2019 [“the

Reorganisation Act” or “the impugned Act”]. The Reorganisation

Act, in effect, purports to alter the constitutional status of Jammu

and Kashmir from a “state” within the Indian Union, to two union

territories: the Union Territory of Jammu and Kashmir (with a

legislative assembly) and the Union Territory of Ladakh (without a

legislative assembly).

5. The Reorganisation Act has been enacted in purported exercise of

Article 3 of the Constitution of India. The question, therefore, is

whether Article 3 of the Constitution authorises the union legislature

to pass a law altering the constitutional status of a state, and

reducing or degrading it to a union territory (or more than one union

territory).

6. A further question is whether Article 368 and the salutary safeguards

incorporated therein can be bypassed by the stratagem of enacting

an ordinary Parliamentary law under Article 3, even though the

effect of such law is: (i) to denude a state of its legislative powers by

making changes in the Lists in the Seventh Schedule as applicable

to that State; (ii) to deny a substantial part of a State its rights under

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 Articles 54 and 55, as has been done to Ladakh; (iii) to impose

Article 73 on a State and wipe out its executive powers under Article

162; and (iv) to change the representation of a large part of a State

in the Council of States in Parliament. In this behalf, clause (2) of

Article 4 makes it clear that Article 3 cannot supplant or obviate an

amendment to the Constitution, where one is required under Article

368.

7. In addition, a question arises whether in view of the Proviso to Article

3, the impugned Reorganisation Act is ultra vires the Constitution,

stillborn, and void ab initio. In this behalf it is submitted that though

the said Proviso was by a patent fraud on the Constitution purported

to be made inapplicable to the State of Jammu and Kashmir, the

Proviso must be deemed to have continued in force at all relevant

times, and the Reorganisation Act accordingly be treated as void.

8. All in all, it is respectfully submitted that the text of Article 3 grants

no power to degrade a State into a union territory, that the structure

and design of the Constitution militates against reading such a

power into Article 3, that the history and consistent state practice

militates against such a reading, and that, crucially, a contrary

reading would violate the basic feature of federalism. The impugned

Act, therefore, is beyond the competence of the union legislature,

and void ab initio.

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9. Petitioners respectfully submit that while the facts of this case

pertain to the challenge to the Reorganisation Act, its constitutional

implications go significantly further. This Hon’ble Court’s decision

about the scope and limits of Article 3 will have fundamental and far-

reaching consequences upon the federal compact, the balance of

power between the union and the states, and, therefore, the

character of constitutional democracy in India.

10. Petitioners preface their submissions with two caveats. First,

Article 3 - as it applied to the state of Jammu and Kashmir - required

not just consultation with, but the consent of, the legislative

assembly of Jammu and Kashmir. The proviso mandating consent

was purported to be suspended by a Presidential Proclamation

dated December 19, 2018, which also imposed Article 356 upon the

state. In view of the division of issues between counsel, these

written submissions do not address the validity of the said

Presidential Proclamation, but Counsel reserves his right to address

this Hon’ble Court on this aspect, to the extent that it dovetails into

and is essential for the challenge to the Reorganisation Act.

11. Second, the present writ petitions, as also others in this batch,

set out, in detail, the constitutional challenge to C.O. 272 and 273,

which purport to amend Article 370 of the Constitution. The validity

of the Reorganisation Act partially depends upon the validity of C.O.

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 272 and 273; should this Hon’ble Court hold the former to be invalid,

the invalidity of the Reorganisation Act shall necessarily follow. In

these written submissions, however, Petitioners impugn the validity

of the Reorganisation Act independently of C.O. 272 and 273; thus,

even if this Hon’ble Court were to uphold C.O. 272 and 273, the

Reorganisation Act will nonetheless be unconstitutional and void.

12. These written submissions are structured as follows. After the

Introduction (I), counsel respectfully submits, in section (II), that

Article 3 has no operation and confers no power to bypass the

rigours and safeguards of Article 368, in cases where the effect of

the law made by Parliament is to make changes in respect of the

matters set out in sub-clauses (a) to (e) of the Proviso to clause (2)

of Article 368, and that this is further borne out by Article 4(2) of the

Constitution.

13. It is then submitted in section (III) that Article 3 does not, either

explicitly or by necessary implication, grant the union legislature the

power to degrade or reduce a state into a union territory. Even if it

is assumed that the text of Article 3 is open to two possible readings

- one that authorises such a power, and one that does not - this

Hon’ble Court ought to choose the reading that preserves the basic

features of federalism and representative democracy, which are part

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 of the basic structure of the Constitution, and to abjure a

construction that destroys them.

14. It is submitted in section (IV) that the power under Article 3 is

subject to implied limitations flowing from Article 1 of the

Constitution, and the principles of federalism.

15. Further, the petitioners submit in section (V) that degrading a

state to a union territory entails the vitiation of constitutionally

entrenched legislative powers under Article 246 of the Constitution

read with the Seventh Schedule as was applicable to Jammu and

Kashmir, and a transfer of those powers from the state to the centre.

Such a reduction in status also entails denuding the State of its

executive powers under Article 162, and imposing instead the

executive powers of the Union under Article 73, in patent violation

of the Proviso to clause (1) of Article 73, which permits laws

extending only to matters falling within the Concurrent List of the

Seventh Schedule.

16. Unlike the other elements of Article 3, the accomplishment of

such a drastic transfer of legislative and executive powers through

mere Parliamentary legislation could not have been within the

contemplation of the framers of the Constitution, and is outside the

competence of the union Parliament.

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17. In section (VI) it is submitted that the historical context of

Indian federalism - especially with respect to the integration of the

“princely states”, and particularly the sovereign Jammu and Kashmir

which continued to have its own Constitution within the Union of

States – supports the Petitioners’ reading of Article 3.

18. Before proceeding further, it bears mentioning that a learned

two-Judge Bench of this Hon’ble Court in para 26 of its judgement

in Haji Abdul Gani Khan v. Union of India, 2023 SCC Online SC 138,

observed that a conjoint reading of Articles 3, 4 and 239A indicates

that Parliament can make a law to convert a State into one or more

union territories. However, it is submitted that this holding is in the

nature of obiter dicta, and in any event would have no bearing on

the present matters, as the learned Judges recorded that they “will

have to proceed on the footing that the 2019 Presidential Order, the

said declaration and the provisions of the J&K Reorganisation Act

are valid. It was recorded in para 7 that the petitioners therein were

not seeking to assail the abrogation of Article 370, and that the

challenge was confined to the exercise of delimitation undertaken

by Notifications issued in 2020, 2021 and 2022. It was further

recorded in paras 19 to 21 that though counsel for the petitioners

therein tried to question the validity of the J&K Reorganisation Act

2019, this could not be permitted as no foundation was laid in

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 pleadings. As such, the Petitioners respectfully submit that the

findings in the judgement have no bearing on the constitutional

challenge today.

II. ARTICLE 3 DOES NOT EMPOWER PARLIAMENT TO ENACT A LAW

WHICH HAS THE EFFECT OF BYPASSING THE NECESSITY OF A
CONSTITUTIONAL AMENDMENT UNDER ARTICLE 368; THE RIGOURS
AND SAFEGUARDS PROVIDED TO THE STATES UNDER ARTICLE 368
CANNOT BE SKIRTED BY RECOURSE TO AN ORDINARY LEGISLATION
UNDER ARTICLE 3.

15. There is no manner of doubt that the effect of the

Reorganisation Act is to denude the State of Jammu and Kashmir

of its legislative powers, as were guaranteed to it inter alia under

Article 246 read with the Lists in the Seventh Schedule, as modified

for the State by C.O. 48 dated May 14, 1954, and various other

Constitutional Orders which were passed after consultation with, or

with the prior concurrence of the State Legislature, under Article

370.

16. Nor can it be disputed that the Reorganisation Act imposes

Article 73 on the State, and completely erases its executive powers

under Article 162. This is done not only in respect of matters falling

within List III of the Seventh Schedule (the Concurrent List) to the

10
 extent applicable in Jammu and Kashmir, but also in respect of

matters falling within the State’s exclusive powers, and also all

residual matters which were exclusively within the State’s domain.

Similarly, it is clear that the Reorganisation Act denies the entire

vast territory of Ladakh, which formed a substantial part of the State,

its rights under Articles 54 and 55 of the Constitution of India.

Further, it is clear that the Reorganisation Act brings about a change

in the representation which a large part of the State formerly enjoyed

in the Council of States, as Ladakh is converted into a Union

Territory without a Legislative Assembly, and hence stands

excluded from the electoral college for the Rajya Sabha.

17. All these changes fall squarely within sub-clauses (a), (c), (d)

and (e) of the Proviso to clause (2) of Article 368, and could only

have been brought about by moving an Amendment to the

Constitution, after following the checks and safeguards contained in

Article 368(2). It is submitted that the rigours and safeguards which

the framers of the Constitution provided in Article 368 (which is now

clause (2) of the said Article), were clearly intended to protect the

States from unchecked Parliamentary actions that might

prejudicially affect the federal compact.

18. It is for this reason that such amendments can only be carried

by a majority of the total membership of either House of Parliament,

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 as also a two-thirds majority of those present and voting, with the

further safeguard that if the amendment purports to make any

change in sub-clauses (a) to (e) of the Proviso – in the words of the

original Constitution – it would require ratification by the Legislatures

of not less than one-half of the “States specified in Part A and Part

B of the First Schedule.” The text of the original Constitution – with

reference to Part A and Part B States – has been cited here to make

it clear that the framers intended the Union to have no say in the

ratification process through the Part C and Part D states that were

directly controlled by them at the time.

19. It is the settled legal position, and this must inform a reading

of the Constitution too, that where a direct and explicit provision

exists which deals with a particular course of action, with its own

scheme, provisions, checks and balances, the same cannot be

bypassed by taking recourse to a general provision which does not

directly deal with that subject matter. Further, clause (2) of Article

4 makes it clear that Article 3 cannot supplant or obviate an

amendment to the Constitution, where one is required under Article

368.

20. In the context of Articles 3 and 4 and Article 368, an eight-

Judge Bench of the Supreme Court had occasion to deal with this

dichotomy in Special Reference No. 1 of 1959, In re Berubari

12
 Union (I), (1960) 3 SCR 250; AIR 1960 SC 845. The Court held,

inter alia, that the effect of Article 4(2) is that laws relatable to

Articles 2 and 3 are not to be treated as constitutional amendments

which are required to be made under Article 368; and that where a

legislation is not competent under Article 3, the only recourse of

Parliament would be to effect a constitutional amendment under

Article 368.

21. The Supreme Court has also held that a legislation which

takes away the powers of State Legislatures guaranteed to them

under Article 246 read with List II of the Seventh Schedule is

incompetent under Article 3. In State of Himachal Pradesh v.

Union of India, (2011) 13 SCC 344, the Court held in paras 92 and

93 that Parliament has no power under Article 3 to enact a law which

denudes a State of its legislative powers. Reading this judgment

with In re Berubari Union (I), it is clear that the Reorganisation Act

is patently ultra vires the Constitutional scheme.

22. In addition, it is respectfully submitted that in view of

mandatory requirements spelled out in the Proviso to Article 3, as

applied to the State through the Presidential Order of 1954, the

impugned Reorganisation Act is patently ultra vires the Constitution.

Having not been referred by the President to the Legislature of the

State, the Act is stillborn, and void ab initio.

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23. In this behalf it is further submitted that though the said

Proviso was by a patent fraud on the Constitution purported to be

made inapplicable to the State of Jammu and Kashmir, such

Constitutional fraud must be disregarded for all purposes. The said

Proviso must be deemed to have continued in force at all relevant

times, and the Reorganisation Act accordingly be treated as void.

III. THIS HON’BLE COURT OUGHT TO INTERPRET ARTICLE 3 IN A MANNER

THAT PRESERVES THE BASIC FEATURES OF FEDERALISM, DIVISION OF
POWERS BETWEEN THE UNION AND STATES, AND THE PRESERVATION
OF DEMOCRACY

24. It is beyond cavil that federalism and representative

democracy are both part of the basic structure of the Constitution of

India. Six learned judges in S.R. Bommai v. Union of India, (1994)

3 SCC 1 so held, and Kuldip Nayar v. Union of India, (2006) 7

SCC 1, in paras 50 to 60, while acknowledging that the Union of

India enjoys certain sweeping powers over the States, nevertheless

cemented the principle of federalism as a basic and inalienable

feature of our Constitution.

25. In Glanrock Estate v. State of Tamil Nadu, (2010) 10 SCC

96, the Court in paras 25, 26 and 31 held that even the wide-ranging

powers of amendment of the Constitution in Article 368 cannot be

14
 used to make amendments that would abrogate the core

constitutional values and overarching principles that form the basic

structure of the Constitution. It necessarily follows that if the basic

features and structure cannot be changed even by a constitutional

amendment after following all the checks and balances of Article

368(2), that certainly cannot be done by an ordinary law enacted by

Parliament under Article 3.

26. It is respectfully submitted that the text and structure of Article

3, when interpreted and understood in the context supplied above

(a), and supplemented by past practice supports (b), leads to the

following conclusion: the underlying thrust of Article 3 is to support

and enhance representative democratic governance, and not to

degrade it (c). When understood this way, it becomes clear that the

Reorganisation Act is ultra vires Article 3, and unconstitutional.

a. The text and structure of Article 3

27. Article 3 of the Constitution is titled “formation of new States

and alteration of areas, boundaries, or names of existing States”

(emphasis supplied). Its scheme is as follows:

a. Article 3 has five sub-clauses. These sub-clauses authorise

Parliament, by law, to “form a new State by separation of

territory from any State or by uniting two or more States or

15
 parts of States or by uniting any territory to a part of any State,”

“increase the area of any State,” “diminish the area of any

State,” “alter the boundaries of any State,” and “alter the name

of any State.” (emphasis supplied)

b. The proviso to Article 3 requires consultation with affected

state legislatures as a necessary precondition.

c. Explanation I to Article 3 - which was introduced through a

constitutional amendment in 1966 - clarifies that the word

“State”, in each of the sub-clauses of Article 3, includes “union

territory.” It is important to note that the import of this

Explanation is purely clarificatory, as union territories - as a

concept - did not exist at the time of the framing of the

Constitution.

d. The scheme of Article 3 is completed by Explanation II, which

clarifies that the power to form a new State or Union territory

can be exercised by “uniting a part of any State or Union

territory to any other State or Union territory.”

e. Article 4 provides that any law under Article 3 shall amend the

1st and 4th schedules to the Constitution but shall not be

treated as a Constitutional amendment.

28. A close reading of Article 3 reveals that it carefully, specifically,

and exhaustively sets out the categories of powers that Parliament

16
 may, by law, exercise with respect to the States. There is no

explicitly vested power granted to Parliament to degrade the

constitutional status of a State to a union territory.

29. Nor is any such power inherent, or necessarily implied, within

any of the sub-clauses of Article 3, or within Explanation 2.

a. Sub-clauses (b) to (e) are concerned with areas, boundaries,

and names, all of which are qualitatively different from a

State’s constitutional position within the federal union.

b. Sub-clause (a) read with Explanation 2 sets out the more far-

reaching power of formation of a new State (or Union

Territory). However, crucially, even this power is not

unqualified: Article 3(a) does not stop with the words “form a

new State (or union territory).” It sets out the range of

permissible ways in which this can be done: i.e. by separating

an existing State (or union territory), engrafting existing State

(or UT) territories to each other. Notably, despite this

specificity, sub-clause (a) read with Explanation 2 does not list

the degradation of a State into a union territory as a method

of “formation” of a new political entity (whether State or UT).

Further, while Article 3 requires legislative views from the

State with respect to a change of name, boundary or area, it

does not require any such view regarding the much more

17
 fundamental issue of degradation of a state into a union

territory. Further, laws made under Article 3 are expressly

deemed not to be treated as an amendment to the Constitution

under Article 4(2).

30. From a textual perspective, all these factors taken together

are instructive, and ought to be determinative. The powers to alter

the name, area or boundary of a state in the Indian historical context

(detailed below) are qualitatively different from the power to decide

whether an existing state continues to deserve such status or

whether it ought to be degraded to a union territory. It is one thing

to state that a law that changes the name or boundary of a state is

not an amendment to the Constitution regardless of the changes it

makes to Schedules I and IV but quite another to claim that a law

by which a state can allegedly be converted to a union territory in

toto does not even require a Constitutional amendment. To

paraphrase Justice Scalia’s memorable phrase in Whitman v.

American Trucking, 531 US 457 (2001), to assume that laws that

convert states into union territories are covered by Article 3 requires

us to believe that our Framers hid elephants in mouseholes.

31. It is pertinent to note that in re Berubari Union, AIR 1960 SC

845 this Hon’ble Court did not read or imply into Article 3 a power to

pass a law by which territory could be ceded to the erstwhile East

18
Pakistan pursuant to a Treaty. It held that the same would require a

Constitutional amendment. It is respectfully submitted that, in

addition, no power to degrade a state to a union territory exists but

even if it does, such a drastic act of retrogression would require a

constitutional amendment and not a law under Article 3. This

understanding is buttressed by the judgement of this Hon’ble Court

in Mangal Singh v Union of India, AIR 1967 SC 944 which,

discussed the provisions of Articles 3 and 4 held:

“The argument that if it be assumed that the Parliament

is invested with this wide power it may conceivably

exercise power to abolish the legislative and judicial

organs of the State altogether is also without substance.

We do not think that any such power is contemplated by

Art. 4. Power with which the Parliament is invested by

Arts. 2 and 3, is power to admit, establish, or form new

States which conform to the democratic pattern

envisaged by the Constitution; and the power which the

Parliament may exercise by law is supplemental,

incidental or consequential to the admission,

establishment or formation of a State as contemplated

by the Constitution, and is not power to override the

constitutional scheme. No State can therefore be

19
 formed, admitted or set up by law under Art. 4 by the

Parliament which has not effective legislative, executive

and judicial organs.”

32. Indeed no commentary on the Indian Constitution has ever

indicated that Article 3 contains the power to democratically

retrogress a State to a Union Territory. For instance, H.M. Seervai

also discusses this power as being the power of Parliament to “alter

the boundaries of states, or to distribute the territories of a State

among other states” (Para 5.16 at p. 290 Volume I 4th edn, 1991

and para 6.24 at p. 312).

b. History and Practice

33. From a historical perspective, the case for reading an implied

power to degrade a state into a union territory is arguably even

worse than the textual case. At least in theory during the latter part

of British Raj (for example, see the Preamble to the Government of

India Act 1919), and in both theory and practice since

Independence, Indians have steadily moved towards greater self-

government in a federal structure and not lesser.

34. In the century between the Government of India Act 1919 and

the impugned Act in 2019, there has been no retrogression of a

20
 “Governor’s Province” to a “Chief Commissioners Province” under

British Raj or of a State to a Union Territory under our Constitution

(except when the concept of union territories was introduced in 1956

by the 7th amendment and some Part C and D states such as

Himachal Pradesh, Manipur and Tripura and were automatically

made Union Territories with elected Territorial Councils under the

Territorial Council Act 1956 – until the 14th amendment allowed

‘Union Territories with Legislature,' pursuant to which legislative

assemblies were set up under the Government of Union Territories

Act 1963).

35. The movement is strictly in the other direction, with territories

gaining more self-government or swaraj rather than the reverse. For

example, Bihar and Orissa, along with Assam, were first separated

from the Presidency of Ft. William Bengal by an Act of 1912 under

which Bihar and Orissa was one province under a Lt. Governor

while Assam was made a Chief Commissioner’s Province. Under

the Government of India Act 1919, Bihar and Orissa province and

Assam province both became Governor’s Provinces under Section

46. Bihar and Orissa were each constituted as separate provinces

by virtue of section 289 of the Government of India Act 1935. Under

the Constitution both Bihar and Orissa were admitted as Part A

states and have remained in Schedule I as states ever since.

21
36. Under section 52A of the Government of India Act 1915 (as

amended in 1919), the Governor General in Council had the power

to create new Governor Provinces but this power was to be

exercised after taking the opinion of the local government. The

Select Jt Committee Report on this section stated:

“The Committee have two observations to make on the

working of this Clause. On the one hand, they do not

think that any change in the boundaries of a province

should be made without due consideration of the views

of the legislative council of the province. On the other

hand, they are of opinion that any clear request made

by a majority of the members of a legislative council

representing a distinctive racial or linguistic territorial

unit for its constitution under this Clause as a sub-

province or a separate province should be taken as a

prima facie case on the strength of which a commission

of inquiry might be appointed by the Secretary of State,

and that it should not be a bar to the appointment of such

a commission of inquiry that the majority of the

legislative council of the province in question is opposed

to the request of the minority representing such a

distinctive territorial unit.”

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37. The power to create new Lt Governor Provinces was

contained in Section 53(2) of the Act. It is pertinent to state that

section 60 of the government of India Act 1915 gave the Governor

General in Council the power to alter boundaries of provinces in

British India.

38. Under the Government of India Act 1935, section 290

provided the Governor General with the Power to create new

provinces, diminish or increase the area of any province or alter the

boundaries subject to ascertaining the view of the Federal

Government and Legislature as well as the Province Legislature.

Provinces included both Governors Provinces and Chief

Commissioners Provinces. This is identical in structure to Article 3.

However, even under this law, powers were used only for the

alteration of boundaries of the provinces of Bombay and the State

of Hyderabad. No one asserted the right of the Governor- General

to abolish a Governor’s Province and convert it into a Chief

Commissioners Province.

39. With the integration of princely states into independent India,

Section 290A was added to the Government of India Act, 1935

which allowed States or groups of States to join the union of India

as Chief Commissioner’s Provinces or part of Governor’s Provinces.

Under the Constitution as adopted in 1950, there were Part A States

23
 having Governors and a Legislature (comprising mostly of the

erstwhile Governor’s provinces with some princely states), Part B

States with Rajpramukhs and elected legislatures (largely the

princely states who were integrated into India), Part C States with

Chief Commissioners (erstwhile Chief Commissioner provinces and

some princely states) and a Part D State, namely the Andaman and

Nicobar Islands governed by a Lt. Governor appointed by the Union.

40. It is pertinent to note the historical context as regards Indian

states, why re-organisation of states and alteration of boundaries

was always under contemplation in the Constituent Assembly, and

why such debates reverberate in the parliamentary records of the

1950s. The movement for linguistic based federalism began with

Orissa in 1895 under British rule and continued to gain steam. The

State of Andhra Pradesh was created in 1953, as a result of popular

agitation, by a secession of the Telugu speaking parts of Madras

State under the Andhra State Act, 1953.

41. The purpose of Article 3 can be understood by a combined

read of the States Reorganisation Report 1955 (which was the basis

of the States Reorganisation Act 1956) (“SR Report”) as well as the

7th Amendment.

24
(a) The provinces of British India were not based on any

rational or scientific planning but rather on military, political or

administrative exigencies of the moment. (para 14, and 21 of the SR

Report)

(b) In independent India, there were 3 categories of States

Part A , Part B and Part C in addition to Part D territories. Part A

corresponded to the provinces of British India. Part B states included

the former Princely States that merged with India and had

Rajpramukhs and were subject to additional supervision by the

Union of India. Part C states were governed by the Union in a unitary

manner. Andaman and Nicobar Islands constituted a Part D state

which had been a Chief Commissioner’s province under British India

under the Acts of 1919 and 1935. (para 28-31, 33 of the SR Report)

(c) The SR Report found that the disparate status of the

states as Part A, B, C and D was unsustainable and was contrary to

overwhelming public opinion. It proposed that the majority of Part C

states should be merged with other contiguous states while the

remainder, which could not be merged due to vital, strategic or other

considerations, be treated as territories. Following this paradigm,

the 7th Constitutional Amendment removed the distinctions between

states and introduced the concept of union territories in the place of

25
 non-merged Part C states and for Andaman and Nicobar Islands.

(para 236-268, 237, 285-286 of the SR Report)

(d) From 1955 onwards, Goa, Himachal Pradesh, Manipur,

Tripura, Arunachal Pradesh, and Mizoram were converted from

union territories to States. This was done through legislation under

Article 3. The 14th amendment provided for the creation of

legislatures for Puducherry and for other union territories of the time.

For Delhi, the 69th amendment Act provided for an insertion of

special provisions which brought it closer to a state. At no time post

the 7th Amendment has the status of any State been reduced to a

Union Territory.

42. Consistent practice from 1950 onwards shows that laws made

under the aegis of Article 3 have created new states (Andhra

Pradesh, Gujarat and Maharashtra, Kerala), or union territories that

have in time become states (Himachal Pradesh, Mizoram,

Arunachal Pradesh, Tripura, Manipur, Goa). As a natural

consequence of this the territory of parent states has shrunk: for

example Madras State post the creation of Andhra, Punjab post the

1966 Act created Haryana and transferred territories to Himachal.

43. Some historical states have been extinguished in this process

but it is pertinent to note that in each case the movement was

26
towards greater self-determination by joining a State due to

linguistic or other affinity. In no case has there been democratic

regression to a former stage in political evolution.

Historic State Date of Successor Change in

dissolution State (s) Status
Cooch Behar Constitutional West Bengal Part C state to
Order dated Part A state
28.12.1949
under s. 290 A
Government of
India Act, 1935
Bilaspur Bilaspur and Himachal Merged two
Himachal Pradesh Part C States.
(New State) Himachal
Act 1954 became a
union territory
in 1956, was
largely
expanded in
1966 under
the Punjab
Reorganisatio
n Act and
made a State
in 1971.
Hyderabad States Andhra Part B State to
Reorganisatio Pradesh (now successor
n Act 1956 also States
Telangana),
Maharashtra,
Madhya
Pradesh,
Karnataka
Vindhya “ Madhya Part C state to

27
 Pradesh Pradesh Successor
State
Madhya “ Madhya Part B State to
Bharat Pradesh successor
State
Bhopal State “ Madhya Part C State to
Pradesh successor
State
Ajmer State “ Rajasthan Part C State to
successor
State
Coorg State “ Karnataka Part C State to
(earlier known successor
as Mysore) State
Kutch and “ Bombay State Part C and
Saurashtra (now Gujarat) Part B States
States to successor
State
Travancore- “ Kerala, Tamil Part B State to
Cochin Nadu successor
State
PEPSU “ Punjab, Part B State to
Haryana successor
State

c. The principle underlying Article 3

44. It is respectfully submitted that (a) the lack of a categorical

mention of the right of the Union to degrade a State under Article 3,

and (b) consistent state practice across British India and

independent India is neither accidental, nor a matter of semantics.

There is an underlying theme that unites the several sub-clauses of

28
 Article 3 and Explanation 2. Each of these sub-clauses refer to a

situation where, as a result of Parliamentary legislation, a set of

citizens may find themselves living in a different State, or - in one

set of circumstances - citizens of an erstwhile UT may find

themselves living in an existing or new State. In each of these

situations, the form of federal representative democracy enjoyed by

these citizens is either constant, or enhanced.

45. The degradation of a State to a union territory, however,

entails a change of a qualitatively different kind from the situations

described above: that is, a diminishment or loss of representative

democracy that comes with an alteration of status from State to

union territory (whether with or without a legislature). This qualitative

difference is the reason why the power to degrade a State into a

union territory cannot be “read into” the existing sub-clauses of

Article 3.

46. It is respectfully submitted that the thematic unity described

above is founded upon two constitutional principles. These are:

a. The reason why Article 3 vests in the union parliament the

power that it does - and explicitly denies to the State

legislatures a veto over alterations of boundaries, areas etc. -

is because the framers recognised that the States - as formed

- were themselves culturally, linguistically, and otherwise

29
 heterogeneous entities. If, therefore, existing State

legislatures were granted a veto over alterations to existing

boundaries, it might frustrate the desires of distinct minorities

within these States for cultural and linguistic autonomy via

Statehood. This was explicitly discussed in the Constituent

Assembly [Constituent Assembly Debates, Vol. 7, 17-18

November, 1948; Constituent Assembly Debates, Vol. 10,

12-13 October, 1949).

b. Consequently, the principled reason underlying the scheme of

Article 3 was not to disempower States at the expense of the

Union, but to protect representative democratic aspirations

within States. As the history of State formation after

Independence has shown, this is how political reality has

worked in practice as well.

c. Explanation II to Article 3 is founded in the historical fact that

at the time of Independence, there were certain territories (at

the time, Commissioner’s Provinces) that were deemed to be

not yet ready for representative democracy through full

Statehood. Without taking a position on the merits of such a

view, Petitioners respectfully note that – as indicated above -

the march of constitutional history after Independence has

30
 been such that Commissioner’s Provinces - and, later, Union

Territories - have ascended to Statehood at various times.

i. Under the Government of Union Territories Act 1963

and the insertion of Art. 239A into the Constitution by the

14th amendment, the Union Territories got legislative

assemblies abolishing the earlier system of Territorial

Councils Act, 1956.

ii. After this the Union Territories acquired statehood:

Nagaland (1963), Himachal Pradesh (1971), Manipur

(1972), Tripura (1973), Goa (1987), Arunachal Pradesh

(1987), Mizoram (1987).

iii. Under the 69th Amendment Delhi has also been

accorded special democratic status. As on date the

union territories Daman and Diu, Dadra and Nagar

Haveli, Lakshadweep, Chandigarh and the Andaman

and Nicobar Islands exist as union territories because of

reasons such as size, history, viability as independent

units, and administrative expediency. There are no

significant political demands for statehood.

47. It is pertinent to note that the Indian state has dealt with

serious insurgencies (Punjab, Manipur, Mizoram, Nagaland), and

territorial threats (Arunachal Pradesh) without the need to

31
 contemplate a democratic retrogression. The emergency powers

provide sufficient basis for union involvement in a state on a

temporary basis.

48. Petitioners therefore submit that the text, design, history and

structure of Article 3 - and the powers it vests within the union

legislature - is based upon the core, normative principle of

enhancing representative democracy through federalism. This is

entirely consistent with this Hon’ble Court’s holding - across multiple

cases - that both representative democracy and federalism are a

part of the Constitution’s basic structure.

49. The Respondents’ reading on the other hand, runs contrary to

this core principle. Respondents’ position entails viewing the States

as nothing more than administrative units, where the nature of

democratic representation is entirely dependent on the will of the

union legislature. It is respectfully submitted that this has never been

the jurisprudential understanding of Indian federalism. While this

Hon’ble Court has noted previously that the Indian Constitution is

not a federation in the mould of the United States, and has a set of

provisions that are “skewed” towards the centre, it has also affirmed

that federalism is a part of the basic structure of the Constitution.

Treating the States as mere administrative units does violence to

the concept of federalism. The old adage that India is an

32
 “indestructible union of destructible states” merely implies that

states can be reorganised in consonance with the federal

democratic principle. It cannot imply that Article 3 is a charter for

Central despotism over whether some citizens deserve to live in

States or not.

50. In sum, therefore, Petitioners respectfully submit that:

a. The power to degrade an existing State - through union

legislation - into one or more union territories is not located

within the text of Article 3.

b. Such power is contrary to the thrust and the underlying

principles of Article 3, and should therefore not be “read into”

the provision.

c. At the highest, it may be argued that Article 3 can be

interpreted in two ways: to allow such a power, or to deny it.

In that event, it is respectfully submitted that - in line with its

prior jurisprudence - this Hon’ble Court should adopt an

interpretation that furthers representative democracy and the

federal principle, rather than denying it. Such an interpretation,

in this case, would mean that under Article 3, the union

legislature may not, by law, degrade a State into a union

territory.

33
IV. IN THE ALTERNATIVE, THE POWER UNDER ARTICLE 3 IS SUBJECT TO
IMPLIED LIMITATIONS

51. It is respectfully submitted that under a constitutional

democracy, there is no such thing as power unbounded. As this

Hon’ble Court noted in Raja Ram Pal v. Lok Sabha, (2007) 3 SCC,

184 para 431(b): the Constitutional system of governance abhors

absolutism. All power is limited, whether explicitly by the provisions

of the Constitutions, or by necessary implication, flowing from the

Constitution’s structure and principles.

52. In Miller v. The Queen, [2019] UKSC 41, the Supreme Court

of the United Kingdom set out a principled articulation of implied

limitations under constitutionalism, applicable across jurisdictions.

The Supreme Court noted that the exercise of power under one set

of constitutional provisions would be limited at the point at which

such exercise would have the effect of effacing a different

constitutional principle. Specifically, in Miller, the question before

the UK Supreme Court was whether the executive power of the

Prime Minister to prorogue Parliament was unlimited. The UK

Supreme Court held that it was not; it located the boundaries of this

power at the point where its exercise would efface the equally

important constitutional principle of parliamentary scrutiny over the

executive. In the case before it, the Supreme Court found that the

34
 timing of Prime Minister Boris Johnson’s prorogation had the effect

of depriving Parliament of a chance to scrutinise the Brexit

Agreement. The prorogation was, accordingly, set aside.

53. It is respectfully submitted that the present case entails a

similar clash of powers and principles. The relevant power is

Parliament’s power under Article 3. The relevant principle is the

principle of federalism in its most basic form: i.e., the existence of a

two-tiered system of governance involving the Union and the States.

54. The manner in which this clash occurs is as follows:

a. Article 1(1) of the Constitution stipulates that “India, that is

Bharat, shall be a Union of States.”

b. The federal principle - a part of the basic structure of the

Constitution - therefore requires, at a minimum, that there

must exist a Union, and there must exist States.

c. If Parliament’s powers under Article 3 were held to include the

power to degrade a State into a union territory, it must

necessarily follow that Parliament has the power to degrade

all States into union territories.

d. It therefore necessarily follows, on this reading, that Article 3

vests in Parliament the power, by law, to convert India from a

Union of States to a Union of Union Territories. It is crucial to

note that this is not a question of the abuse of Article 3, or

35
 whether Parliament will ever actually degrade all States into

union territories. The question is whether Article 3, as a

question of constitutional interpretation, can be read to vest in

Parliament the power to convert India into a Union of Union

Territories.

e. It is pellucid that the answer to the above question is “no”: the

power under Article 3 cannot entail the effacement of Article 1

and the erasure of the basic feature of federalism.

f. Consequently, it is respectfully submitted that the powers

under Article 3 carry an implied limitation: these powers are

limited at the point at which their exercise would entail the

erasure or effacement of federalism. As has been

demonstrated above, the power to degrade a State into a

union territory has precisely this effect. Therefore, it is

respectfully submitted that such a power does not exist under

Article 3.

g. It is pertinent to note that this suggestion is not new: this

Hon’ble Court read implied limitations in Article 2 in its

judgement in RC Poudyal v. Union of India, 1994 Supp (1)

SCC 324: AIR 1993 SC 1804.

36
 V. THE DEGRADATION OF A STATE INTO A UNION TERRITORY AFFECTS
ENTRENCHED CONSTITUTIONAL POWERS UNDER ARTICLE 246 READ
WITH THE SEVENTH SCHEDULE

55. It is respectfully submitted that - as has been pointed out

above - the degradation of a State to a union territory is qualitatively

different from other kinds of alterations explicitly authorised by the

text of Article 3. The distinction is grounded in the core constitutional

difference between States as federal units and union territories as

administrative units.

56. Article 246 of the Constitution constitutionally entrenches the

power of the States to make laws for enumerated matters under

Lists II and III of the Seventh Schedule. This power is the

characteristic and defining feature of Indian federalism.

57. The alterations entailed in sub-clauses (a) to (e) of Article 3 do

not involve any alteration of this constitutionally entrenched power

(the one exception is the engrafting of a union territory to a State, or

the “upgradation” of a union territory to a State, where an entity that

previously did not have direct Article 246 powers, now does).

58. Unlike these alterations, however, acts such as the

Reorganisation Act entail the transfer of constitutionally entrenched

Article 246 powers from a federal unit to the centre.

37
59. It is respectfully submitted that this cannot be done by mere

legislation, as it encroaches upon an existing, constitutionally

entrenched set of powers; it does not merely involve classificatory

changes to the First and Fourth Schedules of the Constitution, as

provided for under Article 4.

60. Petitioners’ submission is buttressed by the fact that in the

past, when Parliament has decided to vest additional law-making

powers in a union territory, it has done so via the route of

constitutional amendment (such as Articles 239A (introduced by the

14th amendment to allow for legislatures for Goa, Himachal

Pradesh, Tripura, Manipur, Pondicheri and Daman and Diu) and

239AA, (Introduced by the 69th amendment for Delhi), and not via

Articles 3 and 4.

61. It is therefore submitted that, as the specific manner of

alteration envisaged by the Reorganisation Act entails the transfer

of constitutionally entrenched powers between federal levels (and

not simply through reclassification or alteration of boundaries at the

same federal level), it does not fall within the scope of Article 3, and

cannot be accomplished simply through parliamentary legislation.

38
 VI. THE HISTORY OF INDIAN FEDERALISM AFFIRMS THE PETITIONERS’
READING OF ARTICLE 3

62. It is respectfully submitted that the issue before this Hon’ble

Court must be adjudicated keeping in mind the specific origins and

history of Indian federalism.

63. It is commonly argued - and has occasionally been observed

by this Hon’ble Court, albeit in obiter dicta - that, unlike the United

States, which was an example of “coming together federalism”,

where sovereign States pooled and divested themselves of power

to form a Union of States, in India, there was no prior conception of

the sovereignty of States. Power belonged to the British Crown,

from whence - at independence - it flowed into the hands of the

People of India, and was then - through the Constitution -

redistributed between the Union and the States.

64. It is respectfully submitted that this argument misses an

important historical nuance. Whatever the applicability of this

argument on its own terms to British India, it applies with limited

relevance to the so-called former Princely States, whose entry into

the Indian Union was accomplished through various Instruments of

Accession, which were effectively treaties between two sovereigns.

65. After accession, a two-step process of integration of the states

was carried out in respect of States other than J&K, as described in

39
 the Government of India White Paper on States, 1951 [Common

Compilation, Vol IV]. First, the States entered into merger

agreements by which the State was merged either with an existing

geographically contiguous Province [Common Compilation, Vol

IV, p. 607] or with the Union (into centrally administered areas)

[Common Compilation, Vol IV, p. 616], thus automatically

transferring power to the people. Alternatively, Princely States

entered into covenants for unionisation by which multiple States

joined in union by transferring power from the rulers to the people

[Common Compilation, Vol IV, p. 619], and later entered fresh

Instruments of Accession acceding in all matters specified in the

federal and concurrent lists of the time (barring financial fields)

[Common Compilation, Vol IV, p. para 175]. Next, the Princely

States were administratively integrated into the Indian Union by way

of merger orders issued under Cl. 290A of the Government of India

Act, 1935, providing for the representation of people of the States in

Provincial Legislatures, the extension of central laws to the newly

created Provinces and centrally administered areas and so on.

[Common Compilation, Vol IV, p. 639-642]

66. This two-step process of integration of the States effectively

rendered them equivalent to the Provinces [Common Compilation,

Vol IV, p. 642, para 172]. Under the Constitution of India, these

40
 Princely States were “full-fledged constituent units” of the Indian

union whose accession was no longer based merely on the

Instrument of Accession initially entered into. [Common

Compilation, Vol IV, p. 678, para 215] Thus, these Princely States

were subject to a process of “holding together”, after initially “coming

together” by way of Instruments of Accession.

67. In contrast, the State of J&K was not part of the above-

described two-fold integration process [Common Compilation, Vol

IV, p. 684, para 224]. Its constitutional relationship with India was

determined only by the Instrument of Accession initially entered into

[Common Compilation, Vol IV, p. 681-3, para 221].

68. Indeed, in Prem Nath Kaul, 1959 Supp (2) SCR 270; AIR

1959 SC 749, while considering the specific situation of Jammu and

Kashmir, this Hon’ble Court specifically held that all the way up to

its merger with the Indian Union, Jammu and Kashmir was a

sovereign State.

69. Consequently, at least as far as the princely State of J&K is

concerned Indian federalism is indeed an instance of “coming

together federalism”, along the United States model: that is,

federalism born out of a compact entered into between two or more

sovereigns.

41
70. It is respectfully submitted that in State of West Bengal v.

Union of India, (1964) 1 SCR 371 in the context of West Bengal,

the Supreme Court rejected the argument that the States enjoyed

sovereignty in their own domains on the basis that India was not an

example of “coming together federalism.” However, in that case, the

case of Jammu and Kashmir was not before the Court, and the

aspect of constitutional history advanced here was not considered

by the Court. As submitted earlier, due to the exceptional nature in

which the State of J&K’s constitutional relationship with the Union

of India was determined only by the Instrument of Accession, it

retained its internal autonomy unlike other states that acceded to

the Union and underwent the two- fold process of integration.

Consequently, State of West Bengal - and further cases that rely

upon it - cannot be considered to foreclose the argument advanced

here.

71. It is respectfully submitted that one essential aspect of

federalism as a model of shared and pooled sovereignty (as, it is

submitted, applies to Jammu and Kashmir) is that one federal unit

cannot permanently degrade the constitutional status of the other

without consent.

72. Consequently, Petitioners respectfully submit that the specific

history of Indian federalism - and the nature of its origin with respect

42
 to the State of J&K in the Instrument of Accession between the

States and the Indian Union - places an implied limitation upon the

exercise of Article 3 powers to unilaterally degrade such a State to

the status of a union territory.

VII. CONCLUSION

73. By way of conclusion, Petitioners respectfully submit that this

case requires the anxious consideration of this Hon’ble Court, not

simply because of the immediate facts (although those facts are

very important), but also because of its implications for the federal

compact that binds this Nation together. A reading of Article 3 that

would place the very concept of statehood at the mercy of the Union

Parliament would be utterly destructive of the federal compact as

we know it. It is precisely this reading that forms the basis of the

impugned Act, and it is for that reason that Petitioners respectfully

urge this Hon’ble Court to declare that the Jammu and Kashmir

Reorganisation Act of 2019 is ultra vires the Constitution.

Drafted By: Settled By:

Amjid Maqbool Mr. Chander Uday Singh, Sr. Adv.

Bidya Mohanty

Gautam Bhatia

43
Jahnavi Sindhu

Malavika Prasad

Dr. Saif Mahmood

New Delhi

July 27, 2023

44