Supreme Court's Reasoning In Article 370 Judgment Not Convincing, Should Be Reviewed : Justice Madan B Lokur

Not Satisfied With The Reasoning, Court Should Sit In Review: Justice Madan Lokur On The Kashmir Verdict

Diving in depth into the Supreme Court's recent ruling on Article 370, Former Supreme Court Judge, Justice Madan B. Lokur addressed his concerns in the latest interview hosted by Karan Thapar from The Wire.

To begin with, Justice Lokur agreed that neither the judgement was easily written nor was it easy to follow. He opined, “If you take out 200-250 pages, then it doesn't become so complicated, the issues get narrowed down, in fact, they were narrowed in some part of the judgement…in fact it took me a long time to understand the judgment because it is so complicated, then you keep going back and forth- forth and back.”

Moreover, the Retired Supreme Court Judge strongly felt that the Apex Court faltered in its reasons to uphold the Presidential Order declaring Article 370 inoperative. He opined that the Supreme Court “should sit in review” of its decision.

Unsatisfied With The Reasonings For Upholding Abrogation - Justice Lokur Expresses

The Constitutional Order 272 (CO 272) which was passed on August 5, 2019, essentially provided for three effects on Jammu and Kashmir, firstly, the Constitution of India was to be made fully applicable to the State; secondly, the term “Constituent Assembly” as prescribed under proviso to Article 370(3) was replaced with “Legislative Assembly of the State” by amending Article 367 of the Constitution; thirdly, it revokes all past Constitutional Orders made with regards to Jammu and Kashmir.

In the majority judgement, the Court upholds the abrogation but rules that the approach of interpreting “Constituent Assembly” as “the State Legislative Assembly” through a Presidential Order instead of a Constitution amendment is incorrect and ultra vires Article 370.

The former judge pressed, that the whole case of the Union hinged upon the constituent assembly becoming the legislative assembly and no alternative argument was advanced. Therefore, he expressed that the Court gave a "convoluted reasoning" to uphold the abrogation of special status, despite holding the changes made by CO 272 to be ultra vires.

Adding further, he was of the opinion that since these conclusions of the court did not come with proper reasonings, they can be called “assertions” instead.

When asked if it would be right to call the judgement, “neither clear nor convincing”, Justice Lokur agreed with certainty. He said, “I am not satisfied with the reasoning given”.

'Most Appropriate Case' To Decide The Question Of Reorganisation Of Jammu & Kashmir:

The Supreme Court in its verdict, considered not to examine the issue of demotion of the statehood status of J&K to that of Union Territory (UT), in view of the undertaking given by the Solicitor General that the statehood will be restored.

He opined that it was an error on the part of the Court in not dwelling on the question of whether, without the consent of the State Assembly, the J&K Reorganisation Act, 2019 could be passed during the President's Rule. It was asserted, “ That was an issue which was directly before the Supreme Court, which they did not decide, but they said that it will be decided in an appropriate case, this was the most appropriate case as far as I can understand.”

In furtherance of the same, Thapar asked that while Article 3 required the recommendation of the State Assembly before the introduction of a Reorganisation Bill before the Parliament, whether the Court's decision to hold the need for such recommendation as non-binding circumvented the stipulated constitutional procedure.

Replying to the same, Mr Lokur explained that on one hand, the Court held that President assumed the powers of recommendation by the State Assembly in order to abrogate the Special Status under Article 370 but on the other end, when it comes to Article 3, one could have applied the same logic that since the President assumes the responsibilities of the State Assembly during the imposition of Article 356, the President could have made the recommendation for the Bill, which “apparently he didn't”. Thapar commented, “So what they say in one case they don't say in the other”

Since the logical reasoning did not follow from the Court, Justice Lokur agreed that Article 3 was circumvented and that “it was incumbent upon them” to decide on the question of Reorganisation.

“Theoretically”, A Precedent Has Been Set - Justice Lokur Agrees

Expressly agreeing to the question posed by the Senior Journalist, Justice Lokur explained how “theoretically” a binding precedent has been set for future reorganisations of the country's states.

Justice Lokur explained, “Supposing the Parliament does this, take any particular state and they say that we are converting it into two UTs and it's challenged before the Supreme Court and the Supreme Court says that there is no recommendation of the State Legislature and even if there is, it's not binding upon us, therefore the division of this particular state into two union territories is okay and we record the statement of the Solicitor General/ Attorney General that at some point of time statehood would be given back to that State and the question that its constitutionally valid or not we will decide in another appropriate case. So you wait for a third state to be divided, when the third state is divided, you wait for the fourth state.”

Thus, Justice Lokur stressed the fact that in the past, reorganisation decisions related to Bihar-Jharkhand, Andhra Pradesh- Telangana and Madhya Pradesh-Chhattisgarh were taken with the recommendation of the States' Legislative Assembly, but with the Supreme Court now ruling that the recommendation is no longer necessarily binding, what does now happen to the notion of federalism.

The Final Word - The Court Should Sit In Review

On being asked about his final opinion of the judgement, Justice Lokur felt that the Supreme Court should review its verdict. He expressed, “I am pretty sure that some of the petitioners will apply for review and the Supreme Court should actually look into it. What they have done, like I said, I am not satisfied with the reasons.”

In the concluding segment, Justice Lokur clarified that while he doesn't consider the ruling to be a 'low moment' for the Judiciary, it certainly for him as an Indian Citizen “ Isn't a moment that he (I) would be proud of”.

Also Read - Article 370 Judgment Constitutionally Flawed, Bad In Law : Fali S Nariman