'Presidential Notification On Article 370 Was Unconstitutional': Fali S Nariman

Nariman said that President "did not have an authority to issue a notification on abrogating Article 370 as he did."

With the Supreme Court (SC) upholding the revocation of Article 370, which provided a special status to Jammu and Kashmir, eminent constitutional jurist Fali S Nariman on Monday, 11 December termed the "manner" in which the abrogation of Article 370 took place as "unconstitutional."

In an interview to MojoStory, Nariman said that the then President of India "did not have an authority to issue a notification on abrogating Article 370 as he did."

In a unanimous verdict, the apex court said that Article 370 was a temporary provision of the Constitution of India. The court directed that steps should be taken by the Election Commission of India to conduct elections to the J&K assembly by 30 September, 2024.

Let's break down what Fali S Nariman said.

‘Any Provision of Constitution Can Be Amended By Parliament’

On 5 August, 2019, the then President of India, Ramnath Kovind, diluted Article 370 of the Constitution of India via an order. The President issued The Constitution (Application to Jammu And Kashmir) Order, 2019 that replaces the term ‘Constituent Assembly’ from Article 370(3) with ‘Legislative Assembly [of Jammu & Kashmir]’.

Clause 3 of Article 370 states: "Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify: Provided that the recommendation of the Constituent Assembly of the State referred to in clause ( 2 ) shall be necessary before the President issues such a notification."

Which means that the President can issue a government notification only after it gets the "recommendation of the Constituent Assembly of J&K," Nariman said.

However, on 21 November, 2018, the J&K Governor dissolved the State Legislative Assembly. Barely a month later, the President invoked Article 356 (President's Rule) based on a report from the Governor. This means that there was no "Constituent Assembly" in J&K.

"No such recommendation was forthcoming for the simple reason that there was no constituent assembly in the state and no constitution at that time. But that makes no difference," Nariman told MojoStory.

"In such a case, clause (3) of Article 370 should have been deleted through a Constitutional amendment. The proviso should have been deleted so that the President acquires the power to issue a notification without complying with it,"

Fali S Nariman to MojoStory

"Article 370, whether it was temporary or not, is a provision of the Indian Constitution. Article 368 (Power of Parliament to amend the Constitution and Procedure) clearly states that any provision of the Constitution has to be amended by the Parliament with a requisite majority. If that is not done and it is done by a notification instead, in my view, would be totally invalid," Nariman said, reiterating that it was solely his view.

Essentially what Nariman told senior journalist Barkha Dutt is that the only way to abrogate a provision of the Constitution "known to the law is by an amendment of the Constitution itself."

Nariman believed that either the law that required this amendment "should have been changed," or the law should have been passed as a "formal" constitution amendment.

"The Presidential notification is where the unconstitutionality laid. It does not make a difference if it is a transitory provision or temporary provision. Article 368 clearly states that any provision needs to be amended by a majority in the Parliament. This includes a temporary provision," he told MojoStory.

When asked about his opinion regarding the SC verdict on Monday, Nariman said, "It is not my job to say whether the judgment is correct or incorrect for the simple reason that the Constitution says that whatever law has been declared by the court is binding on every person in the country. That includes me as well."

Nariman reiterated that he was no one to comment about the SC verdict, and said that he was only talking about how the "original manner" in which the change in J&K was brought in did not "follow the procedure needed for a constitution amendment."