Monday, May 23, 2022
 
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Article 370 On The Judicial Touchstone - Does its dilution suffer from lack of debate?



B L Saraf


Coming close on the heels of his announcement to list the petitions challenging abrogation of Art 370 for hearing soon , the Chief Justice N V Ramana addressed 11th joint conference of Chief Ministers and Chief Justices of the states ,on 30 04 2022, where in he dwelt on many issues that confront the Indian judiciary , particularly the one of pendency –which has assumed enormous proportion . PM Narradra Modi was also present in the conference . Listing number of reasons for the laws delay CJI said “ At times ,ambiguities in legislations also add to the existing issues . If the legislature passes law with clarity of thought ,foresight and with people’s welfare in mind ,the scope for litigation gets minimized . The legislature is expected to solicit views of the public and debate the bills , clause by clause ,threadbare before enacting a law .” Well said, Hon C J I . In this background , what he said some days back that he would discuss with other judges and consider listing ,after summer vacations ,the petitions challenging the abrogation of Article 370 which stripped J &K of its special status gives hope that closure of the issue, the way Court deems fit , is in sight .

Leaving merits of the case to the decision of Supreme Court , if any illustration of how a legislation of far reaching consequence was passed without “ debate , clause by clause consideration and without soliciting views of the public “ – which the Hon CJI flagged in the conference - the abrogation of Art 370 and enactment of J &K Reorganization Act 2019 – Act 34 , which split Jammu and Kashmir and downgraded it into two UTs , provides a classic example . It took Parliament just few hours to undo the 75 year old history written in blood and sweat of so many . Well ,one hopes that when the issue comes up before the Court this circumstance , among others , may also be taken into the consideration .

We appreciate that our courts –the Apex Court including –are burdened with a heavy case load , with no proportionate men and material available to facilitate timely disposal of the cases . Here , the constitutional development that occurred in August and September of 2019 A.D , in India and Britain come to mind to bring out the contrast in the way these developments were dealt with by the Highest Courts of the respective countries . One has the origin in Indian Parliament, brought about on the prompting of Government and other was the outcome of Queen’s action of prorogation of the British Parliament , initiated on the advice of British Prime Minister , Boris Johnson . Both were epochal in some sense . However, the Queens’s one got reversed soon, thanks to the British courts : while as that of the Indian Parliament still awaits decision . Thanks to the CJI we may see its resolution soon .

In 2016 ,the British voters chose to leave the European Union –EU but till 2019 they couldn’t decide how to come out . Before Britain could make the exit , its two Prime Ministers – David Cameron and Theresa May had already exited ,in the process . The third one - the incumbent Boris Johnson tried hard but couldn’t succeed to resolve Brexit issue . Britain, in that period , faced unprecedented uncertainty .

Failing to carry it with him , PM Jonson advised Queen to prorogue Parliament from 9th September to 14th October 2019 , so that arrangement of leaving EU could be made . Acting upon his advice the Privy Council ordered prorogation of the Parliament . The order was challenged before the Supreme Court . All the 11 judges of British SC unanimously quashed the order of Privy Council as being “ unlawful void and of no effect .” The outcome was that the “Parliament is not prorogued .” While quashing the order Court ruled that “ the extreme effect on the fundamentals of our democracy cannot go unchallenged .”

As said before , it was not the humongous nature of the two constitutional exercises that combined both for a common discussion but the promptitude of British Courts shown in disposal and conciseness of its decision that compelled a comparative comment on the positions taken by two different governments . The Order of Privy Council went through the scrutiny of three British courts , and final decision came from the SC . It took them just 27 days to come to the final decision .

In last week of August 2019 , the Constitutional Bench of the Supreme Court took cognizance of the challenge to the Constitutional order and the J K Reorganization Act 2019 .The matter is of importance to the different people for the different reasons .For a student of law quite a number of legal issues of far reaching consequences stand flagged by the subject experts .

They are ; the modification of Art 367 in so far as it applies to J & K fictionalizing the reference to “ the legislative Assembly of J&K as used in Article 370 to mean the governor of the state and reference to the ‘ Constituent Assembly “ used in cl 3 Article 370 to mean ‘Legislative assembly of the state . That , according to the observers , combine in a governor the role of legislature and also of the role of Constituent Assembly . This was ostensibly done to pave way for the Statutory Notification that resulted in the recommendations to dilute the critical caveats Of Article 370 Some raised the point that Art 370 cannot be used to amendment itself.

The interest in prompt disposal of the matter gets hiked because of the urge to know how the Apex Court will travel across earlier decisions where it had ruled in favor of retention of the Article 370. The latest one came on 16th December 2016 where the Court , on the appeals filed by the SBI and others feeling aggrieved of J&K High Court’s verdict which quashed their notices issued to the loan defaulters , under various provisions of Securitization and Reconstruction Of Financial Assets and Enforcement of Security Interest Act , confirmed its earlier position about the permanency of Article 370 taken in Sampant Prakash v State of J &K ( 1969 ) and Premnath Koul’s case of 1959 .



(The author is a Former Principal District & Sessions Judge. Feedback- [email protected])


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