Challenge to abrogation of Article 370: Live Updates from the hearing in Supreme Court

Challenge to abrogation of Article 370: Live Updates from the hearing in Supreme Court

Bar & Bench

The Supreme Court is presently hearing the challenge made to the abrogation of Article 370 of the Constitution, which had earlier recognised a special status for Jammu and Kashmir in certain respects.

A batch of petitions challenging various aspects of the abrogation of Article 370  is being heard by a five-Judge Constitution Bench of Justices NV Ramana, SK Kaul, R Subhash Reddy, BR Gavai and Surya Kant. The hearing was earlier scheduled to be heard on November 14. However, the Bench deferred the hearing, opining that it required one common compilation of all the documents of both sides to ensure that the hearing becomes easier.

Live updates from today’s hearing follow

Request for Live Streaming and Hearing in biggest Courtroom

  • Advocate ML Sharma makes a special request before the hearing begins. Sharma seeks for the case to be heard in the largest Courtroom and for the live telecast of the proceedings on the ground that many people are unable to enter the crowded courtroom.
  • Justice SK Kaul (in a lighter vein): Will hearing on the ground be okay?

Convenience Compilation

  • Attorney General KK Venugopal and Senior Counsel Raju Ramachandran apprising the Court about the convenience volumes all the sides together were required to file.
  • Senior Counsel Rajeev Dhavan suggests that the convenience volume may contain only documents and materials and not include precedents and judgments owing to convenience volume becoming voluminous.
  • There are over 3,000 pages in the total of five volumes of the full compilation. Additionally more pages are sought to be added.
  • Ramchandran: Two volumes are the constitution of J&K and a set of whole papers itself. Let’s not go by the number of pages.
  • Justice R Subhash Reddy: What do you ultimately propose? Dhavan: proposing that some volumes may be given after the hearing has commenced.
  • Justice Kaul: Frankly, the only problem is that when we sit down to write the judgment after so many days of the hearing, some material is here some there. It’s difficult.
  • AG KK Venugopal: Suggesting that let the petitioners start the arguments at least now.
  • Justice Ramana asks how many Counsels wish to advance arguments. Court says that the lawyers may discuss amongst themselves and ensure that arguments are not repeated.
  • Raju Ramachandran: The bulk of my argument can be finished by Thursday and there may be some spillover.
  • Dhavan: We have not discussed the scope of our arguments.
  • Justice Kaul: Do so now, Mr. Dhavan Dhavan: It will happen as it goes along. Leave it to our discipline, Your Lordships
  • On taking a headcount, at least ten Senior Advocates on behalf of the petitioners to make submissions, and at least 8 from the Respondents.
  • Justice Ramana lists out the main issues before the Constitution Bench. These include Abrogation of Article 370, the Reorganization of J&K, and the President’s Rule.

Game of Chairs

  • Advocate ML Sharma occupying the chair meant for the arguing Counsel leading to a long discussion in the Court regarding placement of Advocates. Court tells Sharma multiple times to vacate the chair for Ramachandran who is required to begin his arguments.
  • Solicitor General Tushar Mehta says there are no pleadings in ML Sharma’s petition.
  • AG KK Venugopal says, There is one Game of Thrones, this is like a Game of Chairs (Referring to Sharma’s issue over the chair for lead Counsel).
  • Venugopal: We have spent nearly half an hour on the issue of chairs.

Raju Ramachandran Making Submissions

  • Senior Advocate Ramachandran, representing Former IAS officer Shah Faesal, Shehla Rashid and others, begins to make his submissions.
  • Ramachandran refers to the Presidential Proclamation dated 19.12.2018 and the subsequent extension of the emergency with effect from 3.7.2019.
  • Ramachandran: Another order impugned which is not in the public domain is that of concurrence given by the State which enabled the President to issue 272. That is not available to us and we have made application that it should be produced.
  • Ramachandran: Having indicated what is under challenge, before going to a detailed list of dates, I want to state the controversy in a nutshell and will submit a 7-page outline of my arguments to give a broad understanding.
  • Case in a nutshell is:
    • 1. Whether using temporary cover of president’s rule, the power available to UOI and governor, which is temporary in nature, can be used to bring about irreversible change in a federal relationship between a State of Union and Union and if all the equivalences and legal fictions created under Article 356 lead to the irreversible change without participation of the elected government of State concerned, which includes altering the identity of the State altogether and splitting it into two
    • 2. When Article 370 prescribes within itself the mechanism for alteration of that relationship, whether that mechanism can be disobeyed or flouted to make this irreversible change. Ramachandran: These are the two main heads that will contain my arguments.
  • Senior Counsel Dinesh Dwivedi seeks to briefly intervene to remind the Court that there are two existing contradictory judgements of the constitution bench. Dwivedi representing one of the intervenors has prayed for reference to a larger bench.
  • Ramachandran: That stage will also be reached once the case is open.
  • Justice Kaul: We are aware of the judgements, but we just want the case to open first.
  • Ramachandran continues with his arguments, says he will first refer to the instrument of accession, then the Constitution of J&K, and then the Constitution of India and its application to J&K.
  • Ramchandran: The then independent State of J&K had acceded to India on account of the attack from across the border
  • Ramachandran reading out the contents of the instrument of accession.
  • Ramchandran reads out the letter of acceptance of J&K’s accession. Ramachandran: Some portions of the letter have become irrelevant as J&K had become an integral part of India, but I read it out for completion.
  • Justice Reddy: Were all these letters in English Ramchandran: Both the instrument of accession and the Governor General’s letter of acceptance were in English.
  • Ramachandran: I should place Article 370 itself, as it stood before 6th August and how it stands now because that is the center of the controversy.
  • Ramachandran: There are two non-obstante clauses in Article 370.
  • Ramchandran: The clauses under Article 370 (1)(b) provides for consultation with the government of the State because it deals with the subject mentioned under the instrument of accession.
  • Ramachandran: Two grades of participation by the State is required under the Article – consultation in cases of issues already agreed upon under the instrument of accession and concurrence on issues not agreed upon.
  • Ramchandran: For matters outside the instrument of accession, where concurrence is required, the concurrence of the government is required of the constituent assembly which only means that the people of J&K would have to approve it.
  • Ramachandran: Article 370(1) is a non-obstante regarding anything contained in the Constitution whereas A. 370(3) is a non-obstante regarding anything contained in this Article itself.
  • Ramachandran: Recommendation suggests that the proposal to alter the Constitution must emanate from the people of J&K through their elected Constituent Assembly.
  • Ramchandran: Article 370 having been enacted by the whole of India for the State of J&K and the same had to be altered under the scheme of this article, the same could emanate only from the people of J&K through their Constituent Assembly.
  • Ramachandran reading out the President’s Proclamation dated 6.8.2019 leading to the abrogation of Article 370.
  • Bench rises for lunch. Ramachandran to continue his submissions at 2 pm.

Post Lunch Updates

  • Bench assembles for the post-lunch session. Senior Counsel Raju Ramachandran continues to make his submissions on behalf of Shah Faesal, Shehla Rashid and others
  • Ramachandran reading out provisions from the Constitution of J&K and the relationship between the State and the Union.
  • Ramachandran referring to the provisions from J&K Constitution which deal with the Sovereignty, suzerainty of the State and the extent of executive and legislative powers of the Union.
  • Ramachandran: Section 147 says that no amendment seeking to change the provisions of Constitution of India dealing with the relationship between the Centre and J&K can be be introduced in either House of the Legislature.
  • Ramachandran: The legislature of Jammu & Kashmir does not possess the constituent power to alter the relationship between J&K and the Union, which vested (under Article 370) only with the constituent assembly.
  • Justice Reddy seeks clarification on the proviso to Section 147. Justice Ramana agrees with the request, seeks elucidation of the point Ramachandran is trying to make.
  • Ramachandran reading out Article 356 of the Constitution of India, which deals with the power of the President to declare emergency in a State on recommendation by the Governor.
  • Ramachandran moves on to Article 357(2), which states, “Any law made in exercise of the power of the Legislature of the State by Parliament or the President or other authority referred to in sub clause (a) of clause (1) which Parliament or the President or such other authority would not, but for the issue of a Proclamation under Article 356, have been competent to make shall, after the Proclamation has ceased to operate, continue in force until altered or repealed or amended by a competent Legislature or other authority.”
  • Ramachandran: I’m highlighting Article 357(2) to point out that the decision of Parliament to make law on a subject under the State list is by nature, reversible.
  • Ramachandran: Once President’s Rule is lifted from the State and an elected state government comes to power, the decisions taken by Parliament on state subject matters can be repealed.
  • Ramchandran: Highlighting this to juxtapose against the irreversible nature of the decision that alters the relationship between the State and the Union.
  • Ramachandran to now show how these provisions were made applicable to the State of Jammu & Kashmir through Presidential Orders.
  • Ramachandran reading out Article 368 also with reference to its applicability to Jammu & Kashmir.
  • Ramachandran: When the powers of the state legislature are being taken over then there is suspension of the powers. But the occasion to challenge to such a suspension only arises in the present case.
  • Ramachandran: A state has never been reorganised while under President’s Rule. Except once when the States of Punjab and Haryana were created.
  • Ramachandran: In that case (Punjab’s) there was no challenge to the proclamation of the President’s Rule itself.
  • Ramachandran highlights that the footnote to Article 356 makes a reference to the provisions of the Constitution of Jammu & Kashmir.
  • Ramachandran: The Governor giving concurrence (that is provided for under Article 370) is like the Union giving concurrence to itself.
  • Ramachandran: The Governor is the representative of the Union. A concurrence of this nature would not represent the will of the people, which can only be reflected through the elected government.
  • Ramachandran: The nature of power of a body is changed from a constituent body to a legislative body. This legislative body did not possess the constituent power under the provisions of the Constitution.
  • Ramachandran now seeks to take the Court through a detailed list of dates starting from the events of 1850s, when Kashmir came to the Maharajah.
  • Justice Gavai (in jest): You have not detailed how the name Kashmir came about
  • Justice Ramana: My brother (Justice Kaul) also has a family tree going back by 500 years. It is interesting.; Ramachandran: I’m sure Justice Kaul would know much more than the details we have been able to cull out.
  • Rajeev Dhavan: Are Your Lordships suggesting that even the list of dates should go back to 500 years ago?
  • Justice Kaul: This is why I was telling my Brother not to mention the family tree (Everyone laughs).
  • Ramachandran telling the Court about how various princely states were assimilated into India through instruments of accession.
  • As regards Jammu & Kashmir, Ramachandran speaks about the Delhi agreement which fortified the accession and spike about residuary powers of legislature.
  • Ramachandran quotes Sheikh Abdullah, who was the PM of J&K at the time. Abdullah had said that the residuary powers as regards J&K vested with the state’s government itself.
  • Ramchandran: In 1956, the Constituent Assembly of J&K approved and adopted the Constitution of J&K. Subsequently, in Article 356 of Indian Constitution, the reference to the Constitution was clarified to be the Constitution of J&K, like the footnote under that Article suggests.
  • Ramachandran: Closer to the present situation, on Aug 2, advisory was issued to Amarnath Yatris to end their yatra and return and the concern cited was safety and security issues.
  • Ramachandran: On the night of Aug 3, the Governor had issued a statement that he was not aware of any proposed move to alter the status of Articles 370 or 35A.
  • Justice Surya Kant: When did the Constituent Assembly cease to exist?; Ramachandran: Simultaneously with the coming into force of the Constitution of J&K.
  • Justice Reddy asks about the significance of mentioning the specific time of certain proceedings in the list of dates.; Ramachandran: That is just the timing at which proceedings took place, the details of which are available in public domain.
  • Ramachandran: These timings are maintained for various reasons like videography etc.
  • Justice Ramana: Timings should be maintained; Justice Kaul: This is a sanitary way of maintaining records of proceedings.
  • Justice Reddy: The timing of the President’s Proclamation and passage of the reorganization bill is mentioned in the details.
  • Ramachandran: That is maintained as a practice. But for my arguments, it will be used to show the haste with which the decisions were taken.
  • Ramachandran: If a legislative process is rushed through in this manner, can there be a presumption of constitutionality attached?
  • Ramachandran: In the Section 377 judgment, the Supreme Court said that there cannot be presumption of constitutionality to pre-Parliament laws. because Parliament did not have the ocassion to apply its mind to them. Extending that argument here to question the haste.
  • Just as the Bench is about to rise, AG KK Venugopal tells the Court that the petition (of Shah Faesal, Shehla Rashid and others) states that the Bill for Reorganization of J&K was circulated only after its introduction. Venugopal says this statement is incorrect.
  • Ramachandran offers to explain the same first thing tomorrow.
  • Bench rises for the day. Hearing to continue tomorrow.

The Presidential Order of August 5 paved the way for the removal of Article 370 earlier this year. On August 5, the Constitution (Application to Jammu & Kashmir) Order, 2019, was introduced to supersede the Constitution (Application to Jammu & Kashmir) Order, 1954. The 1954 Order had listed out provisions of the Constitution of India that would not apply to Jammu and Kashmir.

In its place, the 2019 Order provided that all provisions of the Constitution of India will apply to the state of Jammu & Kashmir, with a few exceptions and modifications.

Though the power to abrogate or modify Article 370 was conferred on the President under clause (3) of the Article, there was a pre-condition to the same – concurrence by the Constituent Assembly of the State of Jammu & Kashmir. The Constituent Assembly had, however, ceased to exist as far back as in the 1950s.

In order to get over this hurdle, the Presidential Order now under challenge had amended Article 367 to replace the reference to “Constituent Assembly” under Article 370(3) to mean “Legislative Assembly”.

Subsequently, the President had issued another order on August 6 making Article 370 redundant.

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