Ex-SC Judge urges Article 370 review raises concerns over MP suspension

Justice Lokur expresses dissatisfaction with the reasoning on the abrogation of Article 370 and calls for a review

Former Supreme Court Justice Madan B Lokur speaking exclusively with CNBC-TV18 has raised concerns over the suspension of 146 Members of Parliament (MPs), stating that it raises doubts about the validity of Parliament.

Justice Lokur stressed the importance of dialogue and reconciliation in addressing such issues. Justice Lokur also highlighted the absence of statements from key ministers and criticized the quick passage of critical bills without thorough debates.

He expressed dissatisfaction with the reasoning behind the abrogation of Article 370, which granted special autonomy to Jammu and Kashmir, and raised concerns about the selection process for the Chief Election Commissioner (CEC) and members of the Election Commission (EC).

Additionally, Justice Lokur voiced apprehensions about the passage in the Lok Sabha of three bills -- Bharatiya Nyaya (Second) Sanhita, Bharatiya Nagrik Suraksha (Second) Sanhita, and Bharatiya Saksha (Second) Bill, which seek to replace the Indian Penal Code (IPC), the Code of Criminal Procedure (CrPC), and the Indian Evidence Act, respectively -- that have the potential to reshape the criminal justice system in India.

Here is a summary of the key points made by Justice Lokur:

Parliamentary validity: Justice Lokur expressed unease over the suspension of 143 MPs, emphasizing that such a large-scale suspension raises doubts about the validity of parliamentary proceedings. He noted that parliamentary issues should ideally be resolved through discussions for the collective benefit of the nation.

“There were instances of 2-3 MPs thrown out of the House in 2005 but that is a one-off incident. Unfortunately, 143 MPs stand suspended now. It brings doubt to the Parliament's validity. They can say they people were not represented and can say whatever transpired may not be correct, particularly without any debate,” said Justice Madan B Lokur.

Justice Madan B Lokur added, “143 MPs suspension is a huge number. They should have sorted it out by discussions instead of resorting to suspensions. Parliament is not a place to fight, but to reconcile differences for the benefit of the country.”

Absence of statements: Questioning the absence of statements from the Prime Minister and Home Minister, Justice Lokur pondered whether a third person could have issued a statement. He emphasized the importance of a senior cabinet minister making a statement to address concerns raised by the opposition.

“When the PM and the HM declined to offer statements, could there have been a third person issuing the statement? The question is whether a senior cabinet minister's statement would have satisfied the opposition. Maybe it would not have. But a senior member should have made a statement. The opposition wants to say their things in the absence of a statement. It is a question of venting a feeling that what has happened is wrong. Various possibilities should have been explored. It seems none of the possibilities were explored,” said Justice Madan B Lokur.

Insufficient debate on critical bills: Justice Lokur highlighted the need for extensive debates, especially for laws with the potential to reshape the criminal justice system. He expressed concern that the limited time allotted for discussions, even if the opposition was present, would not have been sufficient to thoroughly debate the complex laws.

“Bills need a lot of debate. The three bills have the potential to change our criminal justice system. The three laws have been cleared by Parliament. Two and a half days is just not enough to debate these three bills. Even if the Opposition MPs had been there, they would have been short in strength. The bills had to be discussed thoroughly,” said Justice Madan B Lokur.

Extended police custody concerns: Justice Lokur raised specific concerns about the provision allowing an accused person to be held in police custody beyond the existing 15-day limit. He characterized such prolonged detention as a form of torture, emphasizing the need to assess the conditions in police stations.: Justice Lokur pointed out their complexity. He raised concerns about extended police custody durations, emphasizing the need to address conditions in police stations and ensure the accused have access to legal representation.

Justice Madan B Lokur said, “They are three complex laws. Things are disconcerting. For example, an accused person can be kept in police custody beyond 15 days. The current law says an accused can be kept in custody for a maximum of 15 days. The revised number of days is a long time. Such long police custody amounts to torture. Trials are complex these days. One does not even know what the situation is like when they are kept in police custody. What are the conditions in police stations? Do the accused have access to lawyers or not? These questions need to be answered. The trend in the past is police custody is more or less given for an asking. This is one concern. There could be other concerns also.”

Equating economic offences with terrorism: Justice Lokur opined that equating economic offences with terrorism might be an overreach.

“Terrorism does not only mean shooting. But to equal economic offences with terrorism is taking it too far,” he said.

Discretion in the selection of Election Commissioners: The discretionary power vested in the Prime Minister and selection committees for appointing the Chief Election Commissioner and members of the Election Commission raised concerns for Justice Lokur. He argued that these issues should be thoroughly debated rather than swiftly passed as laws.

“The selection of the CEC or the members of the EC is left to the entire discretion of the PM or search committee. The search committee may recommend 3-4 people. The selection committee is not bound by the recommendation of the search committee. They can pick up from outside. If this happens, what is the point of a search committee when the selection committee converts itself into a search committee? These issues should be debated and discussed rather than passing them as laws,” Justice Madan B Lokur said.

Unsatisfactory reasoning on Article 370: Expressing dissatisfaction with the Supreme Court's reasoning on the abrogation of Article 370, Justice Lokur stressed the need for a review. He felt that the court should have provided clarity on the constitutionality of the reorganization of Jammu and Kashmir into union territories.

“I am not satisfied with the reasoning. The relation between the Constitution of India and the Constitution of Jammu and Kashmir was governed through constitutional orders. and a large number of constitutional orders have been issued from time to time. Constitutional order number 48 says that every amendment to the constitution of India will not apply to the constitution of Jammu and Kashmir unless accepted by the state/government of Jammu and Kashmir. To make amendments applicable to the state of Jammu and Kashmir, you need consent from the government of the state or the legislature. In that sense, the reasoning given by the SC, I am not particularly satisfied,” he said.

Potential precedent for other states: Justice Lokur acknowledged the theoretical potential for the recent decisions to set a precedent for other states, especially regarding the splitting of states into multiple territories.

He said, “For example, if the government needs to split a state into two or three territories, the Supreme Court has not answered. The apex court should have addressed this.”