Supreme Court Should Balance Drift Of 'Centralizing Tendency' In Constitution: Advocate Gautam Bhatia On Article 370 Verdict

Speaking at a conversation held by the Indian Law Institute (Kerala State Unit) and Kerala Judicial Academy on 'The Article 370 Verdict', Advocate and Writer, Gautam Bhatia remarked that over the years the Supreme Court has shown a centralizing tendency in a broad way, even when there are exceptions like the S R Bommai judgment. He said that this was not because of the Courts alone, but because the Constitution has a structural drift towards a 'Centralizing Tendency'. Advocate Bhatia noted that it was imperative for the Courts to balance this disproportion of power and to control the centralizing drift.

The conversation on the Article 370 verdict dealt mainly with three issues, firstly on the power exercised by the Parliament under Article 3. Secondly, the limitations under Article 356 and thirdly, on the unilateral powers exercised by the President.

Advocate Bhatia stated that the main issue was whether a state could be downgraded to the status of a Union Territory. He stated that the Court did not adjudicate upon it based on the submission of the Solicitor General that the Union would restore the statehood of Jammu & Kashmir. He also added that the Supreme Court upheld carving out of Ladakh as a Union Territory.

Advocate Bhatia opined that “There is no dispute upon the power of Parliament under Article 3 of the Constitution… Upholding Ladakh as a UT was not a problem. The issue is why Parliament has such excessive powers in a federal state. Why do states have no veto power?"

He mentioned that this was most probably because when the states were formed after independence, they were internally diverse. He added that if such powers were given to all states, minorities within these states would be outvoted, including in their demands for autonomy and statehood. That is why Article 3 provide wide-ranging powers to the Parliament.

Coming to the aspect of federalism, Advocate Bhatia stated that federalism in India is different from the federalism followed in countries like the United States. Referring to provisions in the Constitution, he added that our Constitution itself provides for federalism of this nature.

On reinstating the statehood of Jammu & Kashmir, Advocate Bhatia said that there is no time limit for it. However, he added that the time limit is only mentioned for conducting the elections. He said, “If the Election Commission of India cannot conduct an election, then contempt can be initiated based on the judgement in Article 370…”

Upon the extent of power that can be exercised under Article 356 of the Constitution for the President to declare an emergency, he said that the purpose of Article 356 was to achieve restoration. Advocate Bhatia said that “The extent of power under Article 356 must be understood based on the purpose of the provision. If things break down in a state and governance is not possible, National or Federal authority must take power until state machinery is restored. The task of Parliament is to act in substitute for State Power.”

Advocate Bhatia then went on to explain the changes that would occur to a state when a Union Territory is carved out of it. He said that there is physical irreversibility which you cannot undo since it is made permanent. Further, he said that there is also constitutional irreversibility. “When state is made UT, you cannot reverse back. There is distinction between the two types of irreversibility…. The judgement states that irreversible changes can be made. But it does not distinguish between types of irreversibility”, Advocate Bhatia said.

He added that the significant premise of the judgment was to understand the integration of Jammu & Kashmir in terms of bringing it to equivalence with other states. At this juncture. Advocate Bhatia also referred to the concept of 'Asymmetric Federalism' and referred to the examples of North-Eastern states.

Answering some of the queries raised, he said that the Supreme Court cannot be in perpetual conflict with the Union Government. He said that the Supreme Court has to maintain its agency and has to self-preserve itself. He said that in many countries, the Courts decide upon a matter by looking at the political situation, and sometimes defer hearing and deciding cases once the political situation has become less febrile.

By concluding the question-answer session, Advocate Bhatia said that the Supreme Court can balance the disproportion of power caused by centralizing drift in the Constitution by ensuring that there is separation of powers and by making sure that there is no concentration of power.