Several statements made in the Supreme Court's ruling, which supported the revocation of Jammu and Kashmir's special status under Article 370, raise concerns about the future of federalism in India. Federalism is considered a fundamental aspect of our Constitution.
Initially, the Court sanctioned the authority of the Union Government to enact permanent and essential modifications to a State's political system when it is subjected to the President's administration. Furthermore, the Court avoided making a ruling on a fundamental matter in the case: whether the Parliament has the authority to demote a State to the status of a Union Territory. The avoidance was motivated by the Union Government's guarantee, although without a set timeline, that the statehood of Jammu and Kashmir would be reinstated. Furthermore, the Court ruled that the Parliament possesses the jurisdiction to establish a Union Territory by separating it from a State, even without the State's permission. Regardless, the Court emphasised that the State's views are only advisory and do not have legal authority over the Parliament. Let us examine the Court's reasoning behind these judgements, as they possess the capacity to establish a worrisome precedent.
Enduring transformations within the tenure of the President's governance
The substantial modifications in the executive and legislative aspects of Jammu and Kashmir, including the revocation of its special status, the division of Ladakh, and its transformation into a Union territory, all occurred when the region was under President's control. During the implementation of these enduring changes, there was no State Legislature or Government in place, resulting in all decisions being decided solely by the Union.
The Presidential proclamation under Article 356 effectively enabled the Union Government to make these choices on behalf of the State, so avoiding the need to establish a political agreement at the State level. In addition, the Presidential proclamation halted the implementation of the conditions stated in Article 3, which required the approval of the J&K legislature to approve a reorganisation Act. As a result, the Parliament has the power to divide J&K into two separate parts and reduce its status to that of a Union Territory, without seeking the opinions of the elected body that represents the people of J&K.
The petitioners argued that the powers granted by Article 356 should only be used to restore normalcy in the State and should not be used to implement long-lasting and significant changes (referred to as 'irreversible changes' by the petitioners). This argument arose from the belief that Article 356 is a measure intended for use only in extraordinary situations, with the purpose of restoring democracy in a State when the Constitutional system is on the verge of collapse. The petitioners inquired about the manner in which this emergency option can be utilised to fundamentally transform the essence of the State.
The Court's judgement recognised that Article 356 can only be utilised to address the urgent needs of government. Paragraph 205 of the judgement written by Chief Justice of India DY Chandrachud states:
Actions undertaken when a Proclamation is in effect must be directly related to the necessary tasks of government throughout the duration of the Proclamation in the state. The invocation of the authority granted by Article 356 is required due to the breakdown of the constitutional system in the state. The primary objective and intention of the constitutional arrangement described in the article is to reinstate the operation of the constitutional system in the state. The duration of the Proclamation is restricted to ensure the eventual restoration of the federal constitutional framework. Therefore, it is necessary for legislative and executive measures to be focused on ensuring that the necessary duties of governance are fulfilled throughout the duration of the Proclamation. The legislative and executive action must have a direct and close connection to the reason for suspending the constitutional machinery in the state.
An inherent consequence of the aforementioned interpretation of Article 356 would imply that the imposition of President's rule is limited to the routine governance of the State for a temporary duration till the circumstances become favourable. Nevertheless, the Court rejected the petitioner's request by employing a strict interpretation of the clauses. The key issue before the Court was to define the limits of the Union Government and Parliament's authority to act on behalf of the State during the President's rule, in a manner that promotes democracy and federalism, as granted by the Constitution.
If the primary objective of the proclamation under Article 356 is to reinstate the operation of the constitutional apparatus in the State, as explicitly stated by the Supreme Court in its ruling, then how can the revocation of Statehood be considered to have a "close connection" to the fundamental intention and purpose of the proclamation?
In the SR Bommai case, the Court shown sagacious discernment by setting certain restrictions on the implementation of the President's rule, recognising the dangers of unrestrained authority. The concept of implied constraints was invoked. Regrettably, the Court's approach to the Article 370 issue appeared to lack such foresight. The Court's reasoning seems to be based on a fallacious straw man argument. In paragraph 218 of the judgement, it was noted that questioning the use of power based on its irreversibility would create an opportunity to challenge routine administrative actions, as previously warned. Therefore, we cannot agree with the argument put forward by the Petitioners that the President's use of power under Article 356 of the Constitution can be contested on the basis that it has led to irreversible effects. The focus here was not on ordinary administrative decisions made under the President's administration, but rather on significant and essential modifications such as the division and transformation of a State.
It is important to mention that although the Court acknowledged the petitioner's argument's potential to challenge routine decisions made during the President's rule, it failed to acknowledge a more significant consequence of rejecting the petitioner's argument - the reinforcement of the Union's authority to make significant alterations to a State through the implementation of President's rule.
Regarding the changeover of a state into a union territory
The Court's decision not to address the question of whether a Parliamentary law enacted under Article 3 can change a State into a Union Territory can only be described as a relinquishment of judicial authority. This matter emerged prominently and significantly in this particular situation. It held significant significance in the realm of Constitutional interpretation. How can a non-binding promise given by the Government, without any legal obligation, eliminate the necessity for a court decision on a significant matter? The Court's avoidance appears to suggest an implicit approval of the conduct, causing concerns about the possible abuse of this approach by a future government, particularly when dealing with a State run by a political adversary. A precedent has been set, wherein a future executive could make decisions that appear to contradict the constitution, reap the advantages of those actions for a prolonged period, and impede court review by pledging to restore the original state of affairs.
The Court's decision affirming Parliament's authority to establish a Union Territory by separating it from a State appears to be supported by a literal interpretation of Article 3 of the Constitution. The judgement in Babulal Parate v. State of Bombay (1959) established that the Parliament was not obligated to follow the State legislature's opinions on the reform of the State. Nevertheless, when this argument is combined with the notion that the Union has the power to enact significant alterations to a State during the President's governance, it creates a powerful combination. Consequently, a segment of a State might be designated as a Union Territory, even without soliciting its opinions, when it is subjected to the President's governance.
Justice Sanjiv Khanna, in his distinct although concurring verdict, expressed a note of warning by stating:
The conversion of a State into a Union Territory has significant repercussions, including the denial of an elected state government to its population and a violation of federalism. The conversion or formation of a Union Territory from a State must be justified by providing compelling and persuasive reasons. The requirement is to adhere strictly to Article 3 of the Constitution of India.
In general, it seems that the Court employed a convoluted reasoning and limited understanding of the authorities outlined in Article 356, without considering the potentially harmful implications it has for federalism.
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