Speaking to India Today TV, eminent jurist Fali Nariman said the right process to remove the provisions under Article 370 would have been to amend them under
the provisions of Article 368.
Chingkheinganbi Mayengbam
Eminent jurist Fali Nariman on Tuesday reacted to the Supreme Court’s verdict upholding the abrogation of Article 370 which had conferred special status to the erstwhile state of Jammu and Kashmir. In an exclusive interview with India Today TV’s Consulting Editor Rajdeep Sardesai, Nariman said, “It (the verdict) is, in my view, an incorrect appreciation of the Constitution, which I didn’t expect the court to do.”
Fali Nariman said that he thought the court would tell the petitioners and the central government that there is a certain way to follow the abrogation of Article 370. “They (the Supreme Court) could have said it’s impossible to do it for X, Y and Z reasons, after which they could have perhaps taken another step. But they didn’t do that,” added Fali Nariman.
According to Fali Nariman, the right process to remove the provisions under Article 370 would have been to amend them under the provisions of Article 368 which gives Parliament the power to amend the Constitution.
“Before the judgment came, my view was that the presidential power under Article 370, Clause 3, could not be exercised at all in the manner in which it was done. And for this reason, there is a supervening article in the Constitution (Article 368), which expressly states that each and every provision of the Constitution can be amended.
“And the manner in which it has to be done is that it has to go before two Houses of Parliament, get the requisite majority, and thereafter get the presidential assent. There is no other manner,” said Nariman.
On the bifurcation of Jammu and Kashmir into two Union Territories, Fali Nariman said he considers it “incorrect” that the bench which delivered the verdict relied on a judgment from 1960. “Namely, that you have to at least approach the state legislature. The court in 1960 said having approached it is enough. You don’t have to take its consent. I think that is a very serious violation of a federal principle,” he added.
“What’s the use of saying that we are a federal state which doesn’t require consent to its downsizing from being a state to a Union territory?” asked Nariman.
The jurist added that Article 3 “doesn’t expressly permit a state to be reduced to a Union territory”.
Nariman also opposed Justice Sanjay Kishan Kaul’s observation that the erstwhile state of Jammu and Kashmir retained an element of internal sovereignty despite its ruler Maharaja Hari Singh signing the Instrument of Accession with India in 1947.
“That judgment should have been overlooked as a matter of fact, which other four judges have really overlooked,” said the jurist.
He denied the allegations that the Supreme Court doesn’t want to confront the executive on contentious political issues and said the only issue he had was they “went with the wrong approach”.
Chingkheinganbi Mayengbam is a sub-editor at India Today.
