Opinion Why arguments criticising Article 370 verdict don’t hold up

The CJI-led Constitution Bench unanimously upheld the abrogation of Article 370 of the Constitution. The nub of the issue was whether the route adopted by the central government was valid in the absence of the State Legislative Assembly and the Constituent Assembly of J&K (dissolved in 1957). which animates Clause (3) of Article 370. Nariman states that the judgment is “totally erroneous and bad in law”, and that, “the Supreme Court has not acted in accordance with the Constitution” as Article 370 cannot operate without the existence of a State Legislative Assembly on whom the burden to give concurrence rests, both with respect to Article 370(1)(d) and Article 3. Elsewhere, he opined that the only possible route to abrogate Article 370 and apply the Constitution of India (“COI”) in its entirety to the state of J&K was by employing Article 368 to delete the proviso to Clause (3) of Article 370.

No reasons are advanced for the aforestated assertions, nor why the careful deliberations of the Supreme Court — with respect to the powers of the President under Article 356 to give concurrence on behalf of the state or make irreversible changes — are bad in law. No reasons as to why the finding that the mere absence of a Legislative Assembly does not put on hold constitutional functions is erroneous; why the finding that the recommendation of Constituent Assembly of J&K is not binding on the President under Clause (3) is erroneous; why the power of the President should freeze with the dissolution of Constituent Assembly, instead of fulfilling its purpose — that of complete integration of J&K with the Union of India. No reasons, just ipse dixit.

Nariman’s reasoning

In his article (‘Political, not constitutional’, IE, December 20), Nariman relies on a judgment of the Apex Court that holds that the function of a proviso is to carve out an exception [AIR 1961 SC 1596]. There can be no quarrel with this principle. However, it is equally well settled that a proviso cannot be used to defeat the main part of the Provision [(2016) 6 SCC 209]. It was further stated that once the route taken by the central government under Article 367 was held to be unconstitutional, there was no occasion to uphold the abrogation under any other provision. This assertion flies in the face of the well-settled proposition that if power is traceable to another provision, the exercise of power will not be invalidated [(1969) 2 SCR 481]. There is nothing in the said article which attempts to distinguish this position in law, nor why the statement of the Solicitor General, who holds an exalted position in the hierarchy of legal representatives of the Union of India, should not be accepted by the Supreme Court as an accurate representation of the government’s views. If his statements, given on the instruction of the central government, “do not bind successor governments”, then the doors of the Supreme Court are not closed.

Justice Lokur’s arguments

Justice Lokur’s interview on December 15 is in much the same vein as Nariman’s. Justice Lokur finds the judgment of the Constitution Bench convoluted and unnecessarily prolix. Interestingly, he suggests that upon dissolution of the state Legislative Assembly, Mehbooba Mufti had approached the governor to stake claim over government formation, which was ignored by the governor and the state Legislative Assembly was hurriedly dissolved in a mala fide manner. Justice Lokur finds this to be an egregious error on the part of the governor which the Supreme Court should not have overlooked as it militates against the very purpose of emergency provisions under our Constitution — the restoration of constitutional framework in the state.

It is pertinent to note that these very submissions were advanced by the petitioners before the Constitution Bench, and the Supreme Court expressly found these assertions to be bereft of any truth. Justice S K Kaul’s separate verdict is informative in this regard. The judge holds thus, “there is nothing on record to show that any political party was willing to stake claim to form the Government” [Para 95]. It is also notable that the challenge to the dissolution of the Legislative Assembly of J&K was only an afterthought, and the petitioners did not challenge the issuance of a proclamation until the special status of J&K was abrogated. Perhaps Justice Lokur was not adequately instructed or misinformed.

Inadequate analyses

Pertinently, neither Nariman nor Justice Lokur discussed why the detailed analysis and the finding of the Supreme Court that the defunctness of Proviso to Clause (3) will not denude the President’s power under the main provision, i.e., to declare cessation of Article 370, is constitutionally invalid. The proof of the pudding is in its eating!

Reasons are the soul of any socio-political discussion. They enrich the dialogue and impart knowledge to a casual reader. In this regard, the responsibility of journalists, lawyers and judges with mass followings is immense. They must provide reasons in support of their analysis and not steer the discourse in a particular direction basis their inherent biases.

The writer is an advocate practicing in the Supreme Court. He represented an intervenor in In Re: Article 370 of the Constitution of India