SC Verdict on Abrogation of Article 370: A Tilt in Federal Balance Towards Centre

What’s in Today’s Article?

• Why in News?
• The Indian Constitution on Formation of New States
• Case of Jammu and Kashmir
• The SC’s Verdict
• What the SC Said on the Centre-State Relations?
• How will the SC's Verdict Affect the Federal Balance of Power?

Why in News?

• The SC's decision to uphold the abrogation of Article 370 of the Constitution by stating that Parliament can unilaterally alter the status of a state to a UT (if the state is under President's rule) may tilt the federal balance in favour of the Union.

The Indian Constitution on Formation of New States

• Article 3 of the Constitution:
  • It deals with formation of new states and alteration of areas, boundaries or names of existing states, and requires the President to necessarily refer such a law to the state legislature concerned for “expressing its views.”

Case of Jammu and Kashmir

• In the case of J&K, 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.”
• The Parliament cleared the Jammu and Kashmir Reorganisation Bill 2019, which reorganises the state of J&K into: the UT of J&K with a legislature, and the UT of Ladakh without a legislature.
• The petitioners had challenged the removal of statehood of J&K on the grounds that the President could not have unilaterally made such a move.

The SC’s Verdict

• 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.”
  • The 1994, 9-judge bench ruling had placed restraints on the exercise of power by the President under Article 356.
• The Court relies on two standards from the Bommai ruling 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 above standard 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.
  • The principal challenge was 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.
• 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.

What the SC Said on the Centre-State Relations?

• Under the scheme of the Indian Constitution, greater power is conferred upon the Centre vis-a-vis the states.
• However, it 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 specifically, the courts should not interpret the law in a way that has the impact of or tends to have the effect of reducing the powers reserved to the states.

How will the SC's Verdict Affect the Federal Balance of Power?

• The verdict is undoubtedly a political boost to the ruling government and an endorsement of its audacious move to strip Kashmir of its special status and bring it on a par with other States.
• However, it is also a verdict that legitimises the subversion of federal principles, fails to appreciate historical context and undermines constitutional procedure.
• The most potent attack on federal principles is the Court’s conclusion that Parliament, while a State is under President’s Rule, can do any act, and even one with irreversible consequences.
• This alarming interpretation comes close to undermining a basic feature of the Constitution as enunciated by the Court itself.

Q1) What is Article 356 of the Constitution of India?

Article 356 is based on the Government of India Act 1935. According to Article 356, President's Rule can be imposed on any state of India on the grounds of the failure of the constitutional machinery.

Q2) Which judgement declared 'federalism' as a basic feature of the Constitution of India?

The SC, in the Kesavananda Bharati case (1973) included federalism as part of the basic structure of the Constitution. Later, in the SR Bommai case (1994), the court held that federalism is part of the basic structure of the Constitution.

Source: Between the lines: A tilt in federal balance towards Centre