Renowned legal expert Fali Nariman offered his perspective on Tuesday regarding the Supreme Court\’s ruling affirming the abrogation of Article 370, which had granted special status to the former state of Jammu and Kashmir. Speaking exclusively with Rajdeep Sardesai, Consulting Editor at India Today TV, Nariman stated, \”It (the verdict) is, in my view, an incorrect interpretation of the Constitution, which I did not anticipate from the court.\”
Expressing his anticipation that the court would provide guidance to the petitioners and the central government on the proper procedure for abrogating Article 370, Fali Nariman suggested that the Supreme Court could have acknowledged the impossibility of the abrogation for certain reasons before exploring alternative steps. However, he observed, \”But they didn\’t do that.\”
According to Fali Nariman, the appropriate process for eliminating the provisions under Article 370 would have been to amend them under the provisions of Article 368, which empowers Parliament 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,\” Nariman explained.
Regarding the division of Jammu and Kashmir into two Union Territories, Fali Nariman criticized the reliance on a 1960 judgment by the bench that delivered the verdict. He deemed it \”incorrect\” and a \”serious violation of a federal principle\” that the court insisted on at least approaching the state legislature without requiring its consent.
\”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?\” questioned 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 the other four judges have really overlooked,\” remarked the jurist.
He refuted allegations that the Supreme Court avoids confronting the executive on contentious political issues, clarifying that his only concern was that they \”went with the wrong approach.\”