Decode Politics: How Article 370 verdict expands the scope of Article 356

While the petitioners argued that the President couldn’t have done so unilaterally, without consulting the state Legislature (which did not exist at the time), the Court, in its 476-page ruling, referred to the landmark nine-judge ruling in S R Bommai v Union of India, 1994, which had held that such unilateral actions are permissible as long as they are not “mala fide” or in bad faith.

What does Article 356 state?

Article 356 contains provisions “in case of failure of constitutional machinery in states”, including those for imposition of President’s Rule.

For the President to issue a proclamation under Article 356, two pre-conditions have to be fulfilled: the satisfaction of the President that a situation has arisen in which the government of a state cannot function as per constitutional provisions; and the satisfaction that such a situation has arisen must be formed based on a report sent by the state Governor or otherwise.

If these two conditions have been fulfilled, the President, by a proclamation, may: (a) assume “all or any” functions of the state government and “all or any” powers vested in or exercisable by the Governor or another authority in the state; (b) declare that powers of the state legislature shall be exercisable by or under the authority of Parliament; and (c) make “incidental and consequential” provisions that are “necessary or desirable” for giving effect to the object of the proclamation.

This includes the power to suspend, wholly or partly, constitutional provisions relating to any body or authority in the state. However, the President is barred from exercising the high courts’ powers or suspending constitutional provisions related to them.

The latter half of Article 365 prescribes further conditions, including that every proclamation must be laid before both Houses of Parliament and approved by them, otherwise it shall cease to operate within two months. A proclamation approved by both Houses has a shelf life of six months, but this can be extended up to three years under exceptional circumstances, such as the imposition of a “national emergency” under Article 352 or the Election Commission certifying its necessity owing to difficulties in holding general elections.

In its December 11 ruling, Chief Justice of India D Y Chandrachud said that only in exceptional situations does the Constitution contemplate the exercise of such unitary powers. “Constitutional and judicial safeguards have been imposed to ensure the exercise of powers during an emergency is not unfettered and absolute,” he said, adding the imposition of emergency is subject to judicial review as per the 1994 and 2006 rulings in S R Bommai and Rameshwar Prasad v Union of India.

This means that courts can still assess the material forming the basis of the advice to the President to impose an emergency.

What the top court previously ruled?

In Bommai, which drew a redline for Centre-state relationships, a nine-judge bench of the Supreme Court interpreted Article 356 of the Constitution to define the limits of President’s Rule.

While all nine judges unanimously upheld the provision, the Court ruled that the President’s decision would be subject to judicial review on grounds of illegality, mala fide, extraneous considerations, abuse of power, or fraud.

While the President’s subjective appraisal of the issue cannot be examined, the Court said the material relied on for making the decision can be reviewed.

The verdict also made parliamentary approval necessary to impose President’s Rule. Only after the proclamation is approved by both Houses of Parliament can the President exercise the power. Till then, the President can suspend the state legislature. If Parliament does not approve the proclamation within two months, then the dismissed government would automatically stand revived, the court said.

In Rameshwar Prasad, a five-judge SC bench said, “Proclamation under Article 356 is open to judicial review, but to a very limited extent. Only when the power is exercised mala fide or is based on wholly extraneous or irrelevant grounds, the power of judicial review can be exercised.”

How do these provisions apply to the present case?

An important question in the Jammu and Kashmir case was whether Article 370 could have been abrogated when the state was under President’s Rule. The former state had been under President’s Rule since 2018, and the question before the court was whether the President could give consent to the revocation of the state’s special status.

Relying on the Bommai ruling, the court held that the President’s actions were constitutionally valid. The Court said the Bommai ruling held that the actions taken by the President after issuing a proclamation are subject to judicial review, but the judges had adopted varying standards to test the validity of the executive orders.

The Court cited two standards set by Justices P B Sawant and B P Jeevan Reddy. Sawant had set the standard of whether the exercise of power was mala fide or palpably irrational, while Reddy observed the advisability and necessity of the action must be borne in mind by the President.

“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 ruled.

Ironically, while the Supreme Court relied on the Bommai ruling to expand the powers of the Union, the 1994 ruling actually placed restraints on the exercise of power by the President under Article 356.