The Supreme Court on December 11 held that the declaration of State emergency under Article 356 and the subsequent actions of the President should have a “reasonable nexus”.
If so, the petitioners could question whether the object of the President, while declaring State emergency on the ground of failure of constitutional machinery in Jammu and Kashmir in December 2018, was to ultimately abrogate the special status of Jammu and Kashmir and bifurcate the full-fledged State to two union territories.
Crisis began in Jammu and Kashmir when Chief Minister Mehbooba Mufti resigned on June 19, 2018 after the Bharatiya Janata Party withdrew support. The Governor, the very next day, had issued a Proclamation under Section 92 of the Constitution of Jammu and Kashmir, which entrusted him with the powers and functions of the State government “in the event of a failure of the constitutional machinery in the State”. On November 21, 2018, the Governor dissolved the State Legislative Assembly. Barely a month later, the President invoked Article 356 based on a report from the Governor. The President’s rule was extended on July 3, 2019.
New provision
On August 5, 2019, the President issued the Constitution (Application to Jammu and Kashmir) Order which applied all the provisions of the Indian Constitution to Jammu and Kashmir and also inserted a new provision, Article 367(4), in the Indian Constitution to replace the expression ‘Constituent Assembly of the State’ in the proviso to Article 370(3) with ‘Legislative Assembly of the State’. This was done to cross the hurdle of getting a prior recommendation from a non-existent Jammu and Kashmir Constituent Assembly to abrogate Article 370.
The very same day saw the Parliament abrogate Article 370 and pass the Bill to reorganise the State of Jammu and Kashmir. The next day saw Article 370 cease to exist.
The question whether the object of the proclamation of Article 356 in December 2018 has a “reasonable nexus” with the subsequent actions of the President and Parliament in August 2019 lies open. Article 356 was revoked in Jammu and Kashmir only in October 2019.
The court said the actions of the President during the subsistence of a State emergency was open to judicial scrutiny.
“The court while judicially reviewing the exercise of power can determine if the exercise of the constitutional power of the Legislature of the State by Parliament has a reasonable nexus with the object sought to be achieved by the Proclamation,” Chief Justice Chandrachud observed on December 11.
Chief Justice Chandrachud, in his lead opinion, said the onus is on the person challenging the actions of the President during emergency to prima facie establish they were a “mala fide or extraneous exercise of power”.
The Bench laid down that, if a prima facie case is made out, the onus would shift from the person complaining to the Centre to justify that the exercise of power had a reasonable nexus with the object of the proclamation of President’s rule under Article 356.
