Article 370 Judgment Constitutionally Flawed, Bad In Law : Fali S Nariman

Reflecting upon the aftermath of the Supreme Court's decision to uphold the constitutionality of the abrogation of Article 370, Senior Advocate and Jurist Mr Fali S. Nariman spoke extensively to Journalist Karan Thapar in his recent interview with The Wire.At the outset, Mr. Nariman opined the judgment to be politically welcomed as it ensured bridging the gap between Jammu and Kashmir and the rest of the nation. The removal of the special status as historically conferred upon the former princely state, in the political sense upholds the principle of national unity. However, in terms of legal correctness, he expressed: “Welcome only as so far it has facilitated a complete integration of Jammu and Kashmir into the union of India which is really a union of the federation of states, which is a good thing. But is constitutionally flawed because in my personal view what has been done by the Hon'ble Court is not in accordance with the provisions of the Constitution.”The jurist also asserted that without intending any disrespect to the Hon'ble Court, he thinks the judgment to be “Totally erroneous and Bad in Law”Mr Thapar asked Mr Nariman if there was a certain political motivation behind the content of the judgement. The jurist stressed that it was important not to jump to such conclusions and attach political underpinnings to the verdict of the Supreme Court. “No no! That's absolutely wrong, we jump to these conclusions that someone is politically motivated because they have won an election and not won an election and so on, it's all wrong. This is a view which was expressed by the court and please note that under the constitution you and I are bound, it's binding on all of us.”On Constitutional Order 48 of 1954 :Order 48, Mr Nariman explained, is a Presidential Order clearly saying that an amendment under Article 368 of any provision of the constitution would only affect Jammu & Kashmir if a Presidential Order applied it under Article 370. The same Order also provided that Article 3 of the Constitution concerning the Parliament's power on the formation of new and altering boundaries, areas or names of existing states would apply only with a “superadded” condition. This condition is, that without the consent of the State Assembly, the area of Jammu and Kashmir cannot be diminished by the executive or the central legislature. Faults in reducing the status of Jammu & Kashmir to a Union Territory :While deliberating on the conversion of Jammu and Kashmir's status of being a state to that of now being a Union Territory, Mr Nariman raised two main concerns. Firstly, under Article 3, the Parliament, without taking into account the views of the State Assembly could not have diminished the boundaries of the State of Jammu and Kashmir; secondly, Article 3 nowhere provides for reducing the status of a State to a UT. He additionally pointed to the fact, that Jammu and Kashmir as a state had an enormous 39,145 square miles of area in 1950 but by the Orders passed in August 2019, the area of the state was diminished. 22,856 square miles was taken out of the 39000, implying that the area which was diminished much more than half. He further stated, “And then Ladakh was created as a Union Territory (UT), and the consent of the legislative assembly was required which was just lifted a day before the abrogation.” For any Bill related to Article 3, the President, even before proposing it to the Parliament, is required to send it before the legislative assembly of J&K for its opinion. The Jurist expressed “Now there is no legislative assembly, it's a dead letter!”Reading Article 3, he explained the requirements for altering the boundaries of Jammu and Kashmir, “There must an assembly be in existence, no.1 before the bill is introduced in the Parliament, it should go to the State Assembly for its views….You see even a bill could not be introduced in Parliament unless the views are ascertained in the Assembly, now there's no assembly- views can't be ascertained, the President has to send that bill, there is no question, all this is the requirement of the Article.”Further on reducing a State to a UT, he stated that “ Article 3 does not permit by law to reduce a state to a UT and that's important, namely because the UT under our Constitution does not need to have a legislative assembly, it may have but it does not need to have. But a State must have an elected legislative assembly, that's the point ” With the creation of the UT, Jammu and Kashmir became a “centrally controlled territory” and no longer does the six periods limitation on imposing President's Rule under Article 356 apply. A mistake to amend the meaning of “Constituent Assembly” under Article 367: By the Constitutional Order 272 (CO 272) of August 5, 2019, Article 367 which provides the manner of interpretation of certain terms in the Constitution amongst other things was inserted with clause 4. The sub-clause d of the amended Art.367(4) provided that the term...

Article 370 Judgment Constitutionally Flawed, Bad In Law : Fali S Nariman

Anmol Kaur Bawa

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