Supreme Court judgment on Article 370 disturbing; allows unconstitutional act of changing J&K to UT to continue: Justice Rohinton Nariman

Former Supreme Court judge Justice Rohinton Nariman on Friday launched a scathing attack on the top court's recent judgment upholding the abrogation of Article 370 of the Constitution which had conferred special status on Jammu and Kashmir. .Justice Nariman said that the judgment is very disturbing and impacts federalism in a big way. Justice Nariman 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 as per which President's rule in a State is possible only for a year."Article 356 deals with Constitutional breakdown, when Centre takes over. In no circumstances can it go beyond one year, unless there is national emergency or Election Commission should say elections are not possible," Justice Nariman said.In order to bypass this, the Central government came up with the 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 said.By refusing to take a decision on the same, the Supreme Court has allowed this unconstitutional action to go on. "So, it say 'we won't decide' means, in effect, you have decided. 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 said.Regarding the Court's reasoning of not deciding on the same on an assurance by the Solicitor General (SG) 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 said.The Supreme Court did not decide this question because it said 'we accept the assurance of the Solicitor General of India that Statehood will follow shortly and elections will be held,' Justice Nariman pointed out.He recounted how an assurance was given by SG Mehta (then an Additional Solicitor General) to the Court 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. "I remember that I had said in Shreya Singhal case, one of my early judgments, when a similar assurance was given to me by the Solicitor General, 'that governments may come and go but Section 66A of IT Act goes on forever'," Justice Nariman said. .He was delivering the 30th Bansari Sheth Endowment Lecture on the theme "The Constitution of India: Checks and Balances."In his lecture, Justice Nariman said that apart from Article 370 judgment, 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. On BBC raids 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," he stated..Regarding the proposed law on appointing Election Commissioners, the former judge said that it could end up making free and fair elections a chimera. "Most unfortunately, we find that a Bill was moved in the Rajya Sabha, which has now become an Act - of course, it will go to the Lok Sabha and become an Act in no time - in which, 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," he said.According to me, it should be struck down as an arbitrary piece of legislation because it severely impairs the independence of the working of the Election Commission, he said. .On the Kerala Governor's actions to refer seven 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. then the Supreme Court wrapped him on his knuckles, what did he do? There were 8 such bills. One bill was assented to, seven were referred to the President. This again is a very disturbing feature. If there is a wholesale reference to the President, then the legislative activity of State comes to a standstill. Unlike Governor sending back a bill (to the State legislature), once it lands at the Centre's door and Centre says no, that's the death of the bill," he said.He said he is waiting for the day when Supreme Court lay down that only independent persons to fill up the posts of the Governor and President."I am waiting for the day when the Supreme Court will lay down that 'look, it is only independent functionaries who are supposed to fill these great offices (Governors and Presidents)' - not the kind of people that we find today, like in Kerala. Where wholesale, after you slept over the bills, you just give them back to the President," he said.He called for overruling the judgment of the Supreme Court in BK Pavitra case which enables Governor to send bills to the President. "It is very important to overrule or dilute BK Pavitra which says that when a Bill comes to the hands of a Governor, and without more he sends it to the President, that is the end of the Bill and end of Federalism," Justice Nariman opined..[Live coverage of event below]