Amit Shah just snuffed out Kashmir's statehood. Could he do the same with your state?

Two days was all it took for Parliament to end Jammu and Kashmir’s seven decade long position as a state within the Indian Union. Over Monday and Tuesday, the BJP pushed through a bill that both partitioned the state of Jammu and Kashmir and also demoted both halves to the status of a Union territory. While Union Territories – which are ruled directly from New Delhi – have been upgraded to the status of states, this is the first time since the concept of a Union Territory was created in 1956 that things have moved the other way.

Remarkably for a decision so momentous, the people actually affected were not even asked for permission (the state is under President’s rule with no democratic government or legislature).

Is this legal? And if so, can it be done to other states?

Short answer to both questions: yes. The Indian Constitution adopted in 1950 envisaged a unique system: a federation so centralised that its units could be unilaterally wiped out by the federal government.

Unitary bias

The weak constitutional backing for Indian federalism was sought to be explained by BR Ambedkar, the chairman of the drafting committee in the Constituent Assembly, by arguing that “the [Indian] federation was not the result of an agreement by the states to join in a federation”. Rather than states which have independent identities like in the American or German federations, Ambedkar argued that in his opinion “the country is one integral whole, its people a single people living under a single imperium derived from a single source” and states only exist “for convenience of administration”.

While Ambedkar disagreed with the Congress on many issues, on creating a centralised state the two were on the same page. Unsurprisingly, the Constituent Assembly passed what is currently Article 3 in the Indian Constitution, giving the Union Parliament full rights when it came to creating new states or altering, in any way it deems fit, the boundaries of an existing state. No permission from the state actually being affected was to be required

Constituent Assembly

The last bit did create small ripples in the Constituent Assembly. KT Shah, a socialist Congressman from Gaya commented that “the general trend of the Draft Constitution, as I view it, seems excessively and unnecessarily to place power and authority in the Centre”. Going against the grain of mainstream politics of the time, Shah had an unusually decentralised view of India and even tried to (unsuccessfully) insert the word “federal” into Article 1 of the Constitution. Shah desired that the boundaries of a state should only be altered “by a consultation of the [state] legislature, rather than that the change be imposed from above” given “that you should, in a democratic regime, consult the peoples affected”.

Ambedkar disagreed on awarding this right to the states but did agree that such a right could be awarded to princely states (remember a significant portion of the Indian Union at the time consisted of the latter). Here, Ambedkar was not driven by any federal notion of state’s rights but simply the legal notion that since the princely states had acceded to the Indian Union by agreement, the latter could not “encroach upon the territories of the Indian States”.

Eventually though, the centralising views of HN Kunzru, a liberal and member of the National Liberation Federation, held sway when he argued that “the Central government should have adequate powers to arrive at decisions and to execute them in the interests of the entire territory of India”. Whether states or princely states, Kunzru argued that the Central government should be able to deal with territorial reorganisation “in any manner they like”.

Dehli nazdik ast

The Supreme Court has also backed up the views of the Constituent Assembly, holding that it was well within Parliament’s powers, as per the Constitution, to overrule a state legislature when chopping and changing the territory of the state in question.

Since then, the Andhra Pradesh assembly expressly rejected plans to partition the state in 2014. However, it did not make any difference and Parliament simply went ahead and carved out the new state of Telangana anyway.

In 2014, legal scholars Alok Prasanna Kumar and Arghya Sengupta argued that what Parliament did in the case of Andhra was constitutional – however, a new form of federalism was needed which placed more emphasis on the views of a state legislature when it came to territorial reorganisation.

Speaking to Scroll.in, Faizan Mustafa, the Vice-Chancellor of NALSAR University of Law, Hyderabad also expressed concern over Article 3. “This is one of the weakest parts of our federation,” explained Mustafa, “that the territorial integrity of units is not guaranteed and depends wholly on the will of Parliament.”