J&K bifurcation: Top lawyers divided over move’s validity

New Delhi: Eminent legal eagles are divided over the bifurcation of Jammu and Kashmir into two Union territories — J&K and Ladakh; with one section contending that it goes against the constitutional provisions, and other justifying it as wholly in conformity with the Constitution.

Describing it as “unconstitutional”, Prashant Bhushan told this newspaper: “The bifurcation of J&K and the allocation of subjects can’t be done in the absence of an elected Assembly. It can’t be done by the President with the consent of the governor.”

“Both the bifurcation of J&K and the amendment to Article 370(1) relating to the subjects that the Centre can deal with now are unconstitutional as the reorganisation of the state cannot be done without the consent of the state Assembly”, he said.

Similarly, “amending Section 370(1), that defines the subjects on which the Centre would have control and the subjects over with state would have jurisdiction, can’t be altered without the consent of the state legislature,” he added.

Mr Bhushan said: “The bifurcation of J&K requires the consent of the elected Assembly of the state. Also, any amendment through Article 370 to the subjects the Union can deal with in J&K also requires the consent of the J&K Assembly. Can’t be done by just (the) President or the governor’s consent. Unconstitutional.”

Article 3 of the Constitution, that provides for formation of new states and alteration of areas, boundaries or the names of existing states, says: “Provided that no bill for the purpose shall be introduced in either House of Parliament except on the recommendation of the President and unless... the bill has been referred by the President to the legislature of that state for expressing its views thereon....”

Sub-clause (b)(i) of Clause (1) of Article 370 says that the power of Parliament to make laws for the said state shall be limited to only to those matters “in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India …”

While Mr Bhushan is relying on these two provisions of the Constitution to question the validity of the Centre’s decision, former Lok Sabha secretary-general Subhash Kashyap says that “technically and constitutionally” the bifurcation decision does not offend any provision of the Constitution.

“The absence of the J&K Assembly is no impediment to the requirement of taking the consent of the state Assembly before altering the boundaries of the state or reorganising it. Under President’s Rule, the powers of the state government gets vested in the Central government and similarly the powers of the Assembly get vested in Parliament”, says Dr Kashyap.

If the state is under President’s Rule, the former Lok Sabha secretary-general says, then the role of the state government and that of the state legislature would be discharged by the Central government and by Parliament respectively.

Former chief information commissioner and Minorities Commission chairman Wajahat Habibullah says that the bifurcation of the state was not going to solve the problem or achieve greater peace. Any reorganisation of J&K had to be done in consolation with the people of the state and its elected representatives, he said.

Describing the action as politically-driven but unwise, former attorney-general Soli Sorabjee, who served in the Atal Behari Vajpayee government, said it was a “very complicated legal issue”. Senior counsel Rakesh Dwivedi welcomed the decision, asserting that it was “long overdue” and “completely legal ... with no chance of any challenge to it succeeding”.