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In Article 370 Case, Supreme Court Set A Worrying

Precedent For Federalism
Manu Sebastian
(/manusebastian)
12 Dec 2023 10:34 AM

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The Court's view that a State's nature can be altered unilaterally by the
Centre during the President's rule does not portend well for federalism.

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Certain propositions laid down in the Supreme Court's judgment
(https://www.livelaw.in/tags/in-re-article-370-of-the-constitution), which upheld the
abrogation of Jammu and Kashmir's special status under Article 370, cast a shadow
on the prospects of federalism in India, which is recognised as a basic feature of our
Constitution.

Firstly, the Court approved the power of the Union Government to make irreversible
and fundamental changes to a State's polity when it is placed under the President's
rule. Secondly, the Court evaded a decision on a core issue in the case: whether the
Parliament can downgrade a State into a Union Territory. This avoidance was based
on the Union Government's assurance, albeit without a specified timeframe, that the
statehood of Jammu and Kashmir would be restored. Thirdly, the Court held that the
Parliament has the authority to carve out a Union Territory from a State, without the
consent of the State. In any case, the Court added, the views of the State are merely
recommendatory and not binding on the Parliament. Let's analyze how the Court
arrived at these conclusions, as they have the potential to set a concerning
precedent.

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Lasting changes during the President's rule

The significant executive and legislative alterations concerning Jammu and Kashmir
—such as the repeal of its special status, the separation of Ladakh, and its conversion
into a Union territory—all transpired during a period of President's rule. This condition
meant the absence of a State Legislature or Government when these lasting changes
were enacted, with all decisions unilaterally made by the Union.

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In a certain sense, the Presidential proclamation under Article 356 facilitated these
decisions by empowering the Union Government to act on behalf of the State,
eliminating the necessity to forge a political consensus at the State level. Additionally,
the Presidential proclamation suspended the operation of the provisos to Article 3,
which mandated the concurrence of the J&K assembly to pass a reorganization Act.
Consequently, the Parliament could bifurcate J&K and downgrade it to a Union
Territory without soliciting the views of the elected body representing the people of
J&K.

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A primary argument raised by the petitioners posited that the powers under Article
356 should only be employed to restore normalcy in the State and should not be
wielded to institute fundamental and enduring changes (referred to by the petitioners
as 'irreversible changes'). This contention stemmed from the perception of Article
356 as an emergency provision, designed for use solely in exceptional circumstances
to reinstate democracy in a State facing a breakdown of the Constitutional
machinery. The question posed by the petitioners was: How can this emergency
provision be employed to fundamentally alter the nature of the State?

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In its judgment, the Court also acknowledged that Article 356 can be used only to
meet the exigencies of the governance. In Paragraph 205 of the judgment authored
by Chief Justice of India DY Chandrachud, it is stated :

“Actions which are taken during the subsistence of a Proclamation must bear a
proximate relationship with the need to discharge the exigencies of governance
during the period over which the Proclamation continues to remain in force in the
state. The exercise of the power under Article 356 is necessitated by the failure of the
constitutional machinery in the state. The ultimate object and purpose of the
constitutional arrangement envisaged in the article is to restore the functioning of the
constitutional machinery in the state. The tenure of the Proclamation is limited in
terms of time so that the federal constitutional mechanism is eventually restored.
Hence, legislative and executive action must be geared towards ensuring that the
required tasks of governance are carried out during the tenure of the Proclamation.
Legislative and executive action has to bear a proximate relationship to the object
and purpose underlying the suspension of the constitutional machinery in the
state”(emphasis supplied).

A natural corollary of the above understanding of Article 356 would have been that
the President's rule can be used only for the day-to-day administration of the State for
a temporary period till the situation becomes conducive. However, the Court shut out
the petitioner's proposition by adopting a literal reading of the provisions. While the
Constitution does empower the Union Government and Parliament to act on behalf of
the State during the President's rule, the crux before the Court was to delineate the
boundaries of that power in a manner conducive to democracy and federalism.

If the ultimate aim of the proclamation under Article 356 is to restore the functioning
of the constitutional machinery in the State, as stated by the Supreme Court itself in
the judgment, how can taking away the Statehood bear a "proximate relationship" to
the underlying object and purpose of the proclamation?

In the SR Bommai case, the Court demonstrated astute wisdom by imposing certain
limitations on the imposition of the President's rule, acknowledging the perils of
unchecked powers. The doctrine of implied limitations was invoked. Unfortunately,
such foresight seemed to be lacking in the Court's approach to the Article 370 case.
The Court's rationale also appeared to rely on a straw man argument. The judgment,
in paragraph 218, observed, “Challenging the exercise of power on the ground of
irreversibility would open the way for challenging every day administrative actions
against which we have cautioned above. Hence, we cannot accept the proposition
which has been urged on behalf of the Petitioners that the exercise of power by the
President under Article 356 of the Constitution can be challenged on the ground that
it has given rise to irreversible consequences.” The concern here wasn't about routine
administrative decisions during the President's rule but rather core, fundamental
changes like the bifurcation and conversion of a State.

It's noteworthy that, while the Court acknowledged the potential of the petitioner's
argument to challenge everyday decisions during the President's rule, it failed to
recognize a more stark consequence of not accepting the petitioner's argument—
strengthening the Union's power to make fundamental changes to a State using the
avenue of President's rule.

On conversion of State as Union Territory

The Court's refusal to answer the issue whether a Parliamentary law passed under
Article 3 can convert a State into a Union Territory can only be termed as an
abdication of the judicial power. This was an issue which arose directly and
substantially in this case. It was an important point of Constitutional interpretation.
How can an empty promise made by the Government, without any binding
commitment, obviate the need for a judicial determination on a substantive issue?
The Court's avoidance seems to imply an implicit endorsement of the action, raising
apprehensions about the potential misuse of such a method by a future government,
especially when dealing with another State governed by a political opponent. A
precedent has been established, wherein a future executive may make decisions
seemingly at odds with the constitution, enjoy the benefits of those choices for an
extended period, and obstruct judicial review by promising to restore the status quo
ante.

The Court's ruling that Parliament has the power to carve out a Union Territory from a
State seems to be backed by a textual reading of Article 3 of the Constitution. It was
also bound by the dictum in the judgment in Babulal Parate v. State of Bombay (1959)
that the views of the State legislature regarding the reorganisation of that State were
not binding on the Parliament. However, when this proposition is read with the
 proposition that the Union can make fundamental changes to a State under the
President's rule, it becomes a potent mix. This would mean that a portion of a State
can be made into a UT, even without seeking its views, when it is placed under the
President's rule.

Justice Sanjiv Khanna, in his separate but concurring judgment, sounded a word of
caution, by saying :

"Conversion of a State into Union Territory has grave consequences, amongst others,
it denies the citizens of the State an elected state government and impinges on
federalism. Conversion/creation of a Union Territory from a State has to be justified
by giving very strong and cogent grounds. It must be in strict compliance with Article
3 of the Constitution of India".

Overall, it appears that the Court adopted a strained logic and narrow interpretation of
the powers under Article 356, oblivious to the dangerous consequences it holds for
federalism.

The author is the Managing Editor of LiveLaw. He can be reached at manu@livelaw.in

Tags In Re Article 370 of the Constitution (https://www.livelaw.in/tags/in-re-article-370-of-the-

constitution)

CJI DY Chandrachud (https://www.livelaw.in/tags/cji-dy-chandrachud)

Federalism (https://www.livelaw.in/tags/federalism)

Article 370 (https://www.livelaw.in/tags/article-370)

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