Article 370 verdict | Between the lines: A tilt in federal balance towards Centre

In the case of Jammu and Kashmir, the President referred the Jammu and Kashmir Reorganisation Bill, 2019, to Parliament for its views since the state was under President’s rule.

Under the President’s rule, Parliament exercised the “powers of the Legislature.”

“That the President of India has referred the Jammu and Kashmir Reorganisation Bill, 2019 to this House under the proviso to Article 3 of the Constitution of India for its views as this House is vested with the powers of the State Legislature of Jammu and Kashmir, as per proclamation of the President of India dated 19th December, 2018. This House resolves to express the view to accept the Jammu and Kashmir Reorganisation Bill, 2019,” the resolution by the Lok Sabha and Rajya Sabha stated on August 5, 2019.

The petitioners had framed this key challenge against removing statehood to J&K on the grounds that the President could not have unilaterally made such a move.

However, the SC in its ruling falls back on the 1994 landmark ruling in SR Bommai v Union of India to hold that such unilateral action is permissible as long as it is not “mala fide.”

Waving a booklet on Article 370 outside the Supreme Court on Monday. (Express photo by Praveen Khanna)

The Court relies on two standards from the Bommai ruling by Justices PB Sawant and Jeevan Reddy to test the validity of the executive orders: whether the President’s actions were “malafide or palpably irrational” and that the “advisability and necessity of the action must be borne in mind” to clear the Centre’s actions.

“Applying the standard laid above to test the exercise of power after a Proclamation under Article 356 is issued, the petitioners must first prove that the exercise of power was mala fide. We have in the preceding section of this judgment held that the scope of the powers of Parliament under Article 356(1)(b) cannot be restricted to only law-making powers of the Legislature of the State. Thus, the exercise of power cannot be held mala fide merely because it is a non-law making power or that it furthers an important federal principle,” the Court said.

Paradoxically, while the SC relied on the Bommai ruling to expand the powers of the Union, the 1994 nine-judge bench ruling had, in fact, placed restraints on the exercise of power by the President under Article 356.

“The fact that under the scheme of our Constitution, greater power is conferred upon the Centre vis-a-vis the states does not mean that states are mere appendages of the Centre. Within the sphere allotted to them, states are supreme. The Centre cannot tamper with their powers. More particularly, the courts should not adopt an approach, an interpretation, which has the effect of or tends to have the effect of whittling down the powers reserved to the states,” Justice Reddy had said in the Bommai ruling.

CJI DY Chandrachud also noted in his opinion that the pleadings of the petitioners in the Kashmir petitions indicate that their principal challenge is to the abrogation of Article 370 and whether such an action could have been taken during President’s rule but not independently to President’s rule by itself. The Court cites this to sidestep the question whether the proclamation itself was valid.