The Constitutional Challenge To Abrogation Of Article 370: Day 1 Of Hearing Before The Constitution Bench Of The Supreme Court Of India

In the pre-lunch session of today’s hearing, Mr. Raju Ramachandran, Sr. Adv., who appears for the Petitioners in the petition titled Dr. Shah Faesal and Ors. v. Union of India and Ors. started making his oral submissions before the Constitution Bench. He started by reading over the relevant portions of the Instrument of Accession and then also read over Art 370 as it stood originally and followed by how it stands post 6th August 2019.

Post-lunch Mr. Ramachandran started reading some relevant provisions of the Jammu and Kashmir Constitution. In particular he referred to S. 1, S. 3, S. 4, S. 5, S. 92 [Governor's rule] and S. 147 [Amendment of the constitution].

He submitted that the legislature of J&K cannot alter the relationship between the State and Dominion as provided under Art 370.

Mr. Ramachandran then submitted that this constituent power was only vested with the constituent assembly and it successor i.e. the parliament, cannot possess more power than what the constituent assembly had.

He then read over Art 357(2) in order to further submitted that unlike in the present case, any legislation made by the parliament on behalf of the state legislature during president's rule is reversible upon the coming of a subsequent popular government, should it choose to exercise that option.

Subsequently, Art 368 and 368 as applicable to J&K were referred to. This was followed up by a reading of the presidential proclamation. Here Mr. Ramachandran submitted that never before has a state been reorganized during President's Rule except once with Punjab when Haryana was created. However, then he tried to differentiate that instance with the present case since in that case, the Delhi High court had upheld the presidential proclamation.

Hereafter, the courts attention was drawn to the Constitutional Order 272 with a special emphasis on the word ‘concurrence’. The crux of his argument was that under President's Rule, the concurrence of the Governor would be akin to the Union giving concurrence to itself.

At this point a list of dates elucidating the historical evolution of the State of Jammu and Kashmir was handed over to the court explaining as to how the territory of the erstwhile state came to be into the fold of the Maharaja and further developments thereof. This was followed by a brief address on the formation of Unions by Princely States and their subsequent accession to India.

Mr. Ramachandran argued that the recent move of abrogation of Art. 370 did not take into account public opinion at any stage and therefore does not have any democratic legitimacy.

He pointed out that despite the legislative council continuing in existence at the time of the impugned action, the same was not consulted.

Hereafter, Mr. Ramachandran referred to the publically available parliamentary proceedings to state that the Reorganisation Bill was not circulated prior to its tabling in the parliament. By extension he submitted that the parliament did not apply its mind to the bill at all and the same was passed in a rushed manner.

At this stage, Mr. K.K. Venugopal, the Ld. Attorney General, took a serious objection to the aforesaid statement of Mr. Ramachandran that the bill was not even shown to a single member of the parliament, as being factually incorrect. He referred to and relied upon Pg. 65 Vol I of the compilation filed with the Hon’ble Court. Since the bench was about to rise and no time was left, Mr. Ramachandran assured to address this first thing tomorrow. With this the bench rose for the day. The constitution challenge to Constitution Order 272, 273, the Presidential Proclamation and the Reorganisation Act will continue tomorrow when the court will continue hearing Mr. Ramachandran.