The Supreme Court on Wednesday asked whether Parliament could have enacted the Jammu and Kashmir Reorganisation Act, which divided the erstwhile state into two union territories, during the subsistence of President's Rule in 2018-2019.

The Jammu and Kashmir Reorganisation Bill was tabled and passed by the Rajya Sabha on August 5, 2019 and was tabled and passed by the Lok Sabha the next day. It received presidential assent on August 9, 2019.

A five-judge bench headed by Chief Justice DY Chandrachud posed this question to senior advocate Rajeev Dhavan, appearing for Jammu and Kashmir People's Conference, which has, apart from challenging the abrogation of Article 370 of the Constitution, contested the imposition of President's Rule in the erstwhile state on December 19, 2018 and its extension on July 3, 2019 for six months.

"Can Parliament enact a law (Jammu and Kashmir Reorganisation Act) during the subsistence of a proclamation under Article 356 in exercise of its power?" the chief justice asked Dhavan.

Dhavan replied Parliament can pass a law, subject to all limitations described in Article 3 and 4 of the Constitution.

Article 3 says Parliament can by law form a new state by separation of territory from any state or by uniting two or more states or parts of states or by uniting any territory to a part of any state. It can increase the area of any state, diminish the area of any state, alter the boundaries of any state, alter the name of any state:

"Provided that no Bill for the purpose shall be introduced in either House of Parliament except on the recommendation of the President and unless, where the proposal contained in the Bill affects the area, boundaries or name of any of the States, the Bill has been referred by the President to the Legislature of that State for expressing its views thereon within such period as may be specified in the reference or within such further period as the President may allow and the period so specified or allowed has expired."

Article 4 allows for consequential changes in the Ist Schedule i.e. names of the States in the Union of India and IVth Schedule i.e. the number of seats allotted in the Rajya Sabha for each state.

CJI Chandrachud asked Dhavan, "How do we deal with Art 356 (1)(c) of the Constitution? Does the president have the power to suspend certain provisions of the Constitution during the operation of proclamation under Article 356?"

Article 356 (1)(c) of the Constitution says in case of failure of the constitutional machinery in state, the president on receipt of report from the governor of the state, may issue a proclamation to make such incidental and consequential provisions which according to him is necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending in whole or in part, the operation of any provisions of the Constitution relating to any body or authority in the State.

Yes," Dhavan replied, adding "The president can suspend a provision of the Constitution but it has to supplement the proclamation. Here, in this case, this goes beyond supplementing and a mandatory provision under Article 3 is actually taken out.

The hearing remained inconclusive and will continue on Thursday.