Justice Kaul: Article 370 verdict can’t be used to undermine federalism

Satya Prakash

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New Delhi, December 25

Maintaining that Article 370 of the Constitution had to go because of its temporary nature, Supreme Court Justice Sanjay Kishan Kaul on Monday said the apex court’s verdict upholding its abrogation couldn’t be used as a benchmark for undermining federalism in India.

“Article 370 was envisaged as a temporary provision as reflected even from the Chapter under which it appears in the Constitution. The Constitution makers envisaged a slower integration process for J&K. As to when it should occur is a political decision,” said Justice Kaul who demitted office on Monday after serving as a Supreme Court judge for close to seven years.

Asked about criticism of the Supreme Court’s verdict on Article 370 for “undermining federalism”, Justice Kaul, who was part of the five-judge Constitution Bench which upheld its abrogation, said, “It is in the nature of a provision by itself and thus, I believe that the judgment of the Supreme Court in Article 370 cannot be used as a benchmark for undermining federalism in the country.”

In an exclusive interview with The Tribune, Justice Kaul said the Executive should respect the domain of the Judiciary as a third pillar and appreciate its role of checks and balances instead of perceiving that role as an obstruction in implementing government policies.

Justice Kaul, who has been critical of the government sitting over Collegium’s recommendation of judges’ appointment, said, “If the government wants to bring in a new law (on judicial appointment), it can always develop a consensus and keep in mind the infirmities found earlier to avoid them.”

Noting that the National Judicial Appointments Commission was quashed at the threshold, he said, “I believe that if it had been given a chance, it could have been suitably tweaked. For example, the Chief Justice could have a casting vote in case of a 3:3 deadlock. The Judiciary and the Executive would have sat across the table and the appointments may not have been so delayed.”

Justice Kaul defended the top court’s verdict prescribing norms for appointment of CEC and ECs, saying it was to fill the vacuum caused by the absence of law.

Maintaining that judicial activism has its own Lakshman Rekha and public interest litigations subserve a social purpose, he said that the courts were conscious of the lines which were not to be crossed.

Justice Kaul — who had openly expressed his displeasure over sudden deletion of certain cases listed before him — refused to comment on it. “The law on the master of the roster is quite settled and the Chief Justice is the first among equals. It is not appropriate for me to comment on any particular scenario qua me in that behalf.”

Asked about the January 12, 2018 unprecedented press conference by four senior-most judges of the Supreme Court, he said it was “something avoidable as the matter should have been addressed internally.”