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.
Source: Barandbench
