Challenge to abrogation of Article 370: Live Updates from the hearing in Supreme Court [Day 2]

Challenge to abrogation of Article 370: Live Updates from the hearing in Supreme Court [Day 2]

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.

Senior Advocate Raju Ramachandran is expected to continue making submissions for the petitioners today.

Read an account of yesterday’s hearing here. 

Live updates from today’s hearing follow

Constitution Bench of Justices NV Ramana, Sanjay Kishan Kaul, R Subhash Reddy, BR Gavai, and Surya Kant assembles.

Raju Ramachandran making submissions

  • Senior Counsel Raju Ramachandran representing Former IAS officer Shah Faesal, Shehla Rashid, and others resumes his submissions
  • Before the Court rose yesterday, Attorney General  KK Venugopal had raised an objection against Ramachandran’s submission (which is also stated in the petition) that the J&K Reorganization Bill was circulated only after introduction. Ramachandran to address the Court on that point.
  • Ramachandran says that what was said in the Court was understood incorrectly. Ramachandran explains there was Constitutional non-compliance where expression of a view on a Bill has happened without that Bill having been shown to the members.
  • Ramachandran cites Article 3 of the Constitution of India and adds that the Bill was passed without the MPs getting a chance to read the Bill. Ramachandran explains that the Parliamentary proceedings are not sought to be challenged here.
  • Ramachandran further clarifies that the Bill he referred to was the resolution of Lok Sabha passed on August 5 which approved the J&K Reorganization Bill. He was not referring to the passage of the Reorganization Bill itself.
  • It was this Bill that was passed in haste without affording a chance to the MPs to read the Bill.
  • Court observes that both the Attorney General and Ramachandran are not factually incorrect and were referring to different perspectives.
  • Ramachandran proceeds with his arguments. “The violation of the Constitution of J&K was done and its status was altered when the State was under President’s rule under Article 356 of the Constitution of India.”
  • Justice Ramana J: The sum and substance of your argument is that under Article 356 cover, the Governor or President cannot permanently alter.
  • Ramachandran: Yes. An irreversible change…
  • Justice Kaul: On a lighter note, the only relief for you is Judicial reversal now?
  • Ramachandran cites the SR Bommai judgment on the issue of the purpose of Article 356. Highlighting the same, Ramachandran says the purpose of Article 356 is to “maintain the Constitution”
  • Ramachandran: It should be ensured that only those actions must be carried for the purpose of which Article 356 is invoked. By making an irreversible change, they have traveled beyond the purpose and the Court’s intervention becomes necessary.
  • Ramachandran: Proclamation under Article 356 is for the purpose of maintaining and preserving the Constitution; in J&K’s case it was for the preservation of the Constitution of India and that of J&K. They used the provision for the preservation of the Constitution of J&K to do away with it.
  • Justice Kaul: So according to you, the primary question is whether Parliament can make these changes.
  • Justice Ramana: You are saying that the Parliament cannot make these changes without the consultation of the State and under Article 356?
  • Ramchandran: Irreversible changes, yes.
  • Ramachandran: It is an irrational exercise of power to abrogate the Constitution of J&K at a time of proclamation under Article 356 to meet and counter a situation of the breakdown of machinery.
  • Ramachandran: Article 356 is an emergency provision but is different in nature from Article 352 or 360 which are also emergency provisions. This power (u/A 356) should be exercised only in exceptional circumstances.
  • Ramachandran: Article 356 should be exercised to uphold both the Constitutions simultaneously, that of J&K and of India; but not to do away with one of them while upholding the other
  • Ramachandran citing the judgment in Ramachandran case
  • Ramachandran now arguing on the point of dual capacity held by an individual and in the given case, Governor, who is the agent of the President, giving concurrence for Presidential Orders
  • Ramachandran says that a Governor in a non A.356 imposed State would act on the aid and advice of his Council of Ministers.
  • Justice Ramana: You are going back to the first argument. We understand your first argument
  • Ramachandran: Whatever be the power of the Governor otherwise, the power of concurrence for Constitutional change cannot be part of any other capacity of Governor who doesn’t have a council of Ministers.
  • Justice Ramana: Then who will do this if not Governor when there is no Council of Ministers?
  • Ramachandran: It is not to be done in this period (during the imposition of President’s Rule u/A 356). This is a temporary phase. It is not to be done during this time.
  • Ramachandran: The purported concurrence of the State govt given through the Governor without the aid and advice of a Council of Ministers is undemocratic for want of a concurrence from a popular government. Governor is the agent or delegate of President.
  • Ramachandran: Various Constitutional fictions and variances created through this route of a temporary phase of the President’s rule cannot be used to bring about an irreversible change in the nature of the relation between the State and the Union.
  • Ramachandran: The agent or delegate of the President is giving consent back to the President. This brings a major Constitutional change of making an Assembly a Constituent body. This concurrence is given in the context of Article 370(1)(d).
  • Ramachandran: The basic structure doctrine should apply on the grounds of 1. Federalism – it changes the federal structure 2. Democracy – it is done through an executive action 3. Rule of law – there is flagrant violation and bypassing of Constitutionally prescribed provision.
  • Bench rises for lunch. Hearing to continue at 2 PM.

Post Lunch Hearing

  • Senior Counsel Raju Ramachandran resumes his submissions
  • Ramachandran says that C.O. 272 is unconstitutional because President’s power under Article 370(I)(d) is not a constituent power but is merely a power to apply provisions with modifications and exceptions under Article 370(I)(d)
  • C.O. 272 is the Presidential Order of August 5.
  • Ramachandran on Cessation of Article 370: A Presidential order to this effect could be issued only if the proposal for the same emanated from the Constituent Assembly or its successor in law.
  • Ramachandran: The right to make such a proposal for the abrogation of Article 370 was exclusively with the Constituent Assembly. If Constituent Assembly to be substituted by the legislative assembly, the right to make a proposal cannot be transferred to the President.
  • Justice Kant: A question arises that who is the competent authority to reconstitute the Constituent Assembly.
  • Ramachandran: For the petitioners, the only burden is to show that the current route is unconstitutional.
  • Ramachandran: The true sovereign is the people. Any other alternative where the voice of the people is absent cannot be said to be right
  • Ramachandran: The power to suggest an alteration in the nature of the relationship between a State and the Union is a constituent power. This is expressly limited under Article 147 and impliedly limited under principles of democracy and federalism.
  • Ramachandran: The recommendation made by the Parliament on behalf of J&K’s Constituent Assembly is undemocratic for want of the will of the people and for want of public reason.
  • Ramachandran: We can redraw the boundaries of a State but the status of a State cannot be diminished to that of Union Territories. Ramachandran cites the example of bifurcation of Andhra Pradesh into two States.
  • Justice Kaul, summarising Ramachandran’s argument: So there are two aspects, one of changing boundaries, another of bifurcation. You are saying that the Parliament cannot extinguish the character of a State and make it a UT.
  • Justice Kaul: By retaining the status of a State, can a separate Union Territory be carved out of it? For example if J&K were to remain a State, could a separate Ladakh UT be carved out?
  • Ramachandran: Conceivably yes.
  • Ramachandran citing the judgement in Lakhan Pal case.
  • 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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