Criticising the apex court for its recent judgement upholding the abrogation of Article 370 of the Constitution, which had conferred special status on Jammu and Kashmir, former Supreme Court Justice Rohinton Nariman said that it was very disturbing and impacts federalism in a big way.
The former judge said that by refusing to decide on the conversion of the State into the Union Territory, the apex court has allowed the Union government to bypass Article 356 which states that President's rule in a State is possible only for a year.
Justice Nariman said: “Article 356 deals with Constitutional breakdown, when Centre takes over. In no circumstances can it go beyond one year, unless there is a national emergency or the Election Commission should say elections are not possible.” To bypass this, the Central government came up with an ingenious way of converting the State into a Union Territory.
"So how do you bypass Article 356? You bypass it by this ingenious method of making the State Union Territories, where you have direct Central control and no problem as to time (limit),” he added.
'SC has allowed this unconstitutional action to go on': Nariman
The SC has allowed this unconstitutional action to go on by refusing to take a decision on the issue. “You have allowed this unconstitutional act to go forward for an indefinite period of time and you have skirted Article 356 (5). These are all very disturbing things,” he added.
The SC reasoned that it has not decided on the issue due the assurance by the Solicitor General Tushar Mehta that statehood will be restored to J&K soon. Justice Nariman said that the SG does not have the authority to bind the successor government or the legislature and the act of changing J&K back to UT will need a law.
“The Solicitor General does not have any authority to bind the successor government. We are going to have a successor government from May next year. Second, and more importantly, he (Solicitor General) has no authority to bind the legislature. And this is going to be a legislative act,” he underlined.
The apex court did not decide on this question saying “we accept the assurance of the Solicitor General of India that Statehood will follow shortly and elections will be held”.
Nariman on Section 66A of the Information Technology Act
Justice Nariman then pointed out that the SG Mehta (who was earlier Additional Solicitor General) had assured the SC that Section 66A of the Information Technology Act (IT Act) will not be misused by the government. Justice Nariman was then on the bench examining the validity of the provision.
He was delivering a speech at the 30th Bansari Sheth Endowment Lecture on the theme “The Constitution of India: Checks and Balances”.
The former judge pointed out that there were three other disturbing events in the recent past – Income Tax raids on BBC, law on appointment of Election Commissioners and Kerala Governor's actions.
Regarding raids on BBC, he said: “In the beginning of the year, you had a BBC documentary - in fact you had two documentaries, speaking about our present Prime Minister, (then) Chief Minister of Gujarat. They were promptly banned. The BBC was harassed by having tax raids. This was the first, difficult, questionable incident that took place earlier this year.”
On proposed law on appointing Election Commissioners
On the proposed law on appointing Election Commissioners, Justice Nariman said that it could end up making free and fair elections a chimera. The Bill was moved in Rajya Sabha, which has not become an Act, it will then go to the Lok Sabha and become an Act in no time. “... the Chief Justice is substituted by a Minister appointed by the Prime Minister. This is the second most disturbing thing because if you are going to get the Chief Election Commissioner and other Election Commissioners appointed in this fashion, free and fair elections are going to become a chimera.” Justice NAriman said.
He added that it should be struck down as an arbitrary piece of legislation because it severely impairs the independence of the working of the election commission.
As far as the Kerala Governor’s action to refer eight bills passed by the State legislature to the President, Justice Nariman opined that it will bring the legislative activity of the State to a standstill. “The third disturbing fact that we found this year is Governor of Kerala, sitting over bills for periods of up to 23 months,” the ex judge said.
He concluded saying that he is waiting for the day when the Supreme Court lay down that only independent persons fill up the posts of the Governor and President.