New Delhi, Dec 29: Justice Sanjay Kishan Kaul, who retired as a judge of the Supreme Court on December 25, has said that the verdict of the apex court on Article 370 cannot be looked at from a federalism point of view.
The Supreme Court had faced criticism from certain sections of society on its judgement where it had upheld the Centre’s decision on abrogation of Article 370 — a provision in the Constitution that gave special status to the erstwhile state of Jammu and Kashmir.
Justice Kaul said on Friday, “I believe that the Kashmir verdict cannot be looked at from a federalism generally point of view. It’s not as if what has happened in Kashmir is to be replicated or can be replicated elsewhere. The reason is that Kashmir assimilation in India occurred in a slightly different mode, and therefore, there was a Constituent Assembly, a Constitution, and then assimilation over a period of time by issuance of GOs (government orders) over a period of time. Some shells still remain, and some aspects remain, and in the political wisdom of the government, they decided to do away with it.”
Justice Kaul, was part of the five-judge Constitution bench which on December 11 delivered the verdict on petitions challenging the Centre’s 2019 decision to abrogate Article 370. The Supreme Court had unanimously held that Article 370 was a “temporary provision”.
Justice Kaul explained that, “… So it gave rise too broadly to question apart from any other legal nuances, that is it something which could have been done, and number two whether the process for was correct or not. That could have been done again there’s a unanimous view on it of the judges at present, which is that the introduction of the provision in the chapter where it was and what was envisaged was a temporary measure, not temporary measure till the report was submitted and the new Constitution formed. But it was a slow process of assimilation which is what we have accepted, and ultimately it is fully assimilated now.”
On whether the abrogation of Article would be done in this manner by the Centre, Justice Kaul said that it was a little more complex issue but then it has to be understood in the context of the position which was prevalent, which was that there was no State Assembly which was in existence and the government had adopted a particular notion and went through the Parliament.
“So, it’s not as if suddenly the government accepted it. Many things were debated. Questioning whether it could have been done this way or not. Again, the unanimous view (of the bench) was that it could have been done this, that’s all I can say. Rest is in the judgment,” Justice Kaul added.
Justice Kaul, who was appointed to the Supreme Court in 2017, was also part of the verdict which by majority view (of the judges) turned down the petitioners’ plea to read same-sex marriage as part of the Special Marriage Act — a secular law that recognises inter-faith marriages.
