Fali Nariman can't rewrite Indian Constitution

Before I am attacked by somebody that I am not a Constitutional Lawyer or Expert as is Mr Fali Nariman is, let me proclaim that I am writing my opinion based on my research on the Constitutional grounds of SR Bommai Case (1994) on Article 356. It is to be noted that Mr. Fali Nariman quoted this SR Bommai case as the seminal game changing Supreme Court Judgment and on that basis has itself become the new Law on Federalism ("has become the Basic Structure of the Constitution") . He further avers (positively declares) that the AP reorganization Bill "militates against the Basic Structure of the Constitution will not be maintainable under the law."

Constitution is an "Open Book" and even if it is subject to interpretations differently by different people it is still very definitive and fairly rigid in its disposition.

First, India has a written Constitution just as US does but unlike UK which does not have a written Constitution. In UK, a previous judgment by a court may become the basis of a Rule or may even become an unwritten law but not so in India. Even with that provision though, historically it is well known in UK that "No Act of Parliament can be unconstitutional, for the law of the land knows not the word or the idea." (English Constitutional History, 1967). The Doctrine of Parliamentary Sovereignty is the bedrock foundation of the English Constitution. In other words, the Parliament can not only write its own Laws but the Laws it creates become part of the Constitution.

India has heavily borrowed from both the English and American principles of Parliamentary Sovereignty (UK) and the written Constitution (of USA). Perhaps that is why the Indian Constitution has been effectively rewritten by the Parliament (Amendments) copiously. India also recognizes the total and absolute sovereignty of the Parliament and is so evident from the way the various Articles of Indian Constitution have been authored, especially Articles 2, 3, and 4. Most importantly the Article 3 which gives unmitigated power to the Parliament in drawing and redrawing the boundaries of its States without any obligation to even engage consent from the State Assemblies. The extreme brevity of Article 3 attests to the absolute power vested in the Parliament with regard to States Reorganization. Let me quote again Article 3:

ARTICLE 3

Parliament may by law—

(a) form a new State by separation of territory from any State or by uniting two or more States or parts of States or by uniting any territory to a part of any State;

(b) increase the area of any State;

(c) diminish the area of any State;

(d) alter the boundaries of any State;

(e) alter the name of any State:

Provided that no Bill for the purpose shall be introduced in either House of Parliament except on the recommendation of the President and unless, where the proposal contained in the Bill affects the area, boundaries or name of any of the States, the Bill has been referred by the President to the Legislature of that State for expressing its views thereon within such period as may be specified in the reference or within such further period as the President may allow and the period so specified or allowed has expired.]

There are no if or but in this proviso. Power vested in the Parliament is Absolute and Total.

Fali Nariman is, IMHO, absolutely wrong in his assertions and there is no basis for his assertions! Nariman’s albeit purely personal opinion rests totally on his interpretation of SR Bommai vs Union of India Case and its relevance to Article 3 on which AP Reorganization Bill is authorized under.

Let me present my arguments against the considered opinion of Mr. Nariman on AP Reorganization Bill, the Article 3, President’s Powers on this subject, and the relevance of SR Bommai Case of 1994 on Article 356 (President’s Rule imposed).

DETAILS of SR Bommai Case: S. R. Bommai v. Union of India raised serious question of law relating to Proclamation of Emergency and dissolution of Legislative assemblies according Article 356 of the Constitution of India:

1. Is the Presidential Proclamation under Article 356 was justiciable and if so to what extent.

2. whether the President has unfettered powers to issue Proclamation under Article 356(1) of the Constitution.

3. Whether the Legislature dissolved by the Presidents proclamation can be revived if the president proclamation is set aside.

4. Whether the validity of the Proclamation issued under Article 356[1] can be challenged even after it has been approved by both Houses of Parliament under Clause[3] of Article 356.

5. whether any relief’s can be granted when the validity of proclamation is challenged and whether the court can grant an interim stay against holding the fresh election.

6. Whether a president can dissolve the legislature without having obtained the approval of both the Houses of the Legislature.

Judgements Rendered by the Supreme Court:

The Proclamation under Article 356(1) is not immune from judicial review. The Supreme Court or the High Court can strike down the Proclamation if it is found to be mala fide or based on wholly irrelevant or extraneous grounds. When called upon, the Union of India has to produce the material on the basis of which action was taken. It cannot refuse to do so, if it seeks to defend the action. The court will not go into the correctness of the material or its adequacy. Its enquiry is limited to see whether the material was relevant to the action. Even if part of the material is irrelevant, the court cannot interfere so long as there is some material which is relevant to the action taken. The Constitution of India has created a federation but with a bias in favour of the Centre. Within the sphere allotted to the States, they are supreme.

Let me right away reject any relevance of Bommai case (Article 356) to AP Reorganization Bill (Article 3) because the power conferred by Article 356 upon the President is a conditioned power. It is not an absolute power (about dismissing a duly elected State Government). The power was vested in the President which has to be ratified by the Parliament after two months. It is NOT about Federalism. It is about exercising the power to dismiss or suspend a State government and imposing President’s Rule for short and temporary periods.

Even then, The court will not go into the correctness of the material or its adequacy. Its enquiry is limited to see whether the material was relevant to the action. Even if part of the material is irrelevant, the court cannot interfere so long as there is some material which is relevant to the action taken.

There is nothing in the Judgment to support Nariman’s assertion that “The Court laid down the Basic Structure Doctrine in the case.” It has not become the law of the land relative to Article 3. Therefore, it is utterly presumptuous on the part of Nariman to claim “the power of the Centre to create new States is now qualified by the requirement not to go against the Federal Structure of the Constitution”. Neither did the AP Assembly did unanimously pass a resolution opposing the bifurcation of AP.

Although there is no ground anybody can move the Apex Court on this subject. I am not at all surprised that Fali Nariman gives such hope to the Seemandhras especially when he has a financial interest in it (huge fees).

After all Fali Nariman has been known to take up cases which not only lack any merit but even against basic humanity!. Remember, Fali Nariman represented the Union Carbide Corporation in the Bhopal Chemical Plant Disaster that resulted in the deaths of thousands and caused multigenerational health calamity. Nariman fought against his own country men, women, and children who were poor and helpless. Of course, Nariman says he regrets now which really doesn’t mean anything.

The Andhra Pradesh Reorganization Bill is empowered by Article 3 in the Constitution wherein the Parliament of India has the absolute power and that power is neither conditional nor limited as it is in the case of Article 356. All the 28 States in the Union of India have been formed exclusively by that sovereign authority vested in the Parliament and so affirmed by the Supreme Court in the various court cases over half a century.

Andhra Pradesh was formed under the same Article 3 as it is now being bifurcated. It is pure mischief and malafide intentions on the part of the Seemandhras to use their brute force and place hurdles in the passage of the AP Reorganization Bill.

Of course, these mischievous attempts will fail and Telangana State will be formed and will take its rightful place proudly as the 29^th State in the Union of India.

The opinions expressed in this article are those of the author and do not necessarily reflect the views of our organisation.