Srinagar: Prominent constitutional expert Mr. Naran has voiced strong criticism of the Supreme Court's judgment on the reorganization of Jammu and Kashmir, stating that while the move may be politically welcomed in India, it is constitutionally flawed as article 3 does not allow a state to be bifurcated into UT.
The decision may be politically welcomed as it has facilitated a complete integration of Jammu and Kashmir into the union of India but it is constitutionally flawed because what has been done by The Honourable court is not at all according to the provisions of the Constitution of India, Jurist Naran said in an Interview with The Wire.
He explained that as per the constitutional order of 1954, the concurrence of the state government was required for any amendment to take effect in Jammu and Kashmir stating that such concurrence during the imposition of President's Rule was fraud.
The ruling is bad in law as the constitutional order number 48 of 1954 amended Article 368 to say no amendment to the Constitution via that article can take effect in Jammu in Kashmir unless it's applied through Clause one of Article 370 and this Clause specifically requires the concurrence of the state government, he said.
The expert also questioned the court's interpretation of Article 3, stating that it does not permit Parliament to reduce a state to a Union Territory.
“It explicitly stated that any amendment under Article 368 would impact Jammu and Kashmir only if applied through a presidential order under Article 370.“
However, it is crucial to note that the same 1954 presidential order stipulated that Article 3, allowing Parliament to reduce the area of a state, applies to Jammu and Kashmir with the condition that the state's area cannot be diminished without the consent of its Legislative Assembly.
He condemned the court's oversight of crucial details, such as the drastic reduction in the size of the state and the absence of a legislative assembly during the decision-making process.
“Of the three judges neither in the main judgment in the two concurring judgment namely that you must realize that Jammu and Kashmir as a state an enormous area. The area in 1950 of Jammu and Kashmir was 39,145 square miles not mentioned in the Judgment not occurred to anybody.”
“In the first place, 22856 square miles was taken out of 39,145 - in other words it was diminished by way more than half much more than half and the new Union territory of ladakh was created and this was specifically against what the Constitution and that's why said consent of the legislative assembly was mandatory.
“All the first error is reducing it in size without taking the concurrence and the recommendation of the assembly and secondly article 3 doesn't permit reducing a state to Union Territory, whether you diminish its size or not -you can't reduce it to Union territory that's not covered in the article.”
“Court is wrong even a bill could not be introduced in Parliament unless the views are ascertained of the assembly now there's no assembly views can't be ascertained, the president has to send that bill- there's no doubt, it is a requirement,” he added.