SC erred in accepting Solicitor General’s assurance on J&K’s statehood

The solicitor General of India’s assurance is neither binding on the government nor on the legislature, pointed out Justice Nariman (Rtd) on Friday while delivering a talk at Asiatic Society, Mumbai.

That is why the Supreme Court, he believes, erred in accepting the Solicitor General Tushar Mehta’s assurance that the statehood of Jammu and Kashmir would be restored ‘soon’. A five-member Constitution bench of the Supreme Court headed by Chief Justice of India D.Y. Chandrachud did not adjudicate on the question of statehood of Jammu & Kashmir in view of the assurance.

Justice Nariman criticised the Supreme Court for accepting an undertaking given by the Solicitor General that statehood will be restored and for avoiding adjudicating on the issue of statehood.

He recalled that in the Shreya Singhal case (in which he was a judge), the Supreme Court decided the validity of Section 66A of the IT Act despite the same Solicitor General, Tushar Mehta, assuring that it wouldn't be invoked. In our experience we found that governments may come, and governments may go, but Section 66 A goes on forever, he had observed, he recalled.

"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.

Justice Nariman added that by not deciding the issue, the Court effectively decided the issue in favour of the Government.

"So, when the court said 'we won't decide', it actually meant, in effect that it had decided and allowed this unconstitutional act to go forward for an indefinite period of time and you have skirted Article 356 (5)," he said.

The first question which had to be answered in the case was why the State was bifurcated when there was a President's rule already in the state, said Justice Nariman and went on to offer an explanation.

The State was converted into two Union Territories to bypass the proviso in Article 356 which prescribes that President's rule cannot exceed one year except when there is a national emergency or if the Election Commission says that elections are not possible to be held. Neither of these two conditions existed in J&K in 2019.

So how do you bypass it? You bypass it by this ingenious method of making the state by splitting it into Union Territories, where the union government has direct control and no constraint or restriction of time as to President’s Rule.

Justice Nariman made the observations while delivering the Smt Bansari Sheth Endowment Lecture on 'Constitution: Checks and Balances'.