December 11, 2019

The Constitutional Challenge To Abrogation Of Article 370: Day 2 Of Hearing Before The Constitution Bench Of The Supreme Court Of India

By Advocate Aditya Gaggar

Hearing before the Hon’ble Supreme Court continued for the second day today. In the morning, Mr. Ramachandra started by contending that the impugned resolution was passed by a voice vote by the Parliament acting as the State Legislature of Jammu and Kashmir without showing it to a single member of the Parliament. However, J. Reddy and J. Gavai raised their concerns with regards to this argument in the sense that Mr. Ramachandran was seeking to broaden the scope of his yesterday’s argument by his argument made today. While J. Kaul admitted that the document relied upon could have been more happily worded but questioned whether the court could go into the question as to what an individual member of the Parliament had said when the Parliament had passed the bill?

As the arguments progressed, J. Ramana quite aptly surmised that the sum and substance of Mr. Ramachandran’s argument was that the Governor and the President under Article 356 could not permanently alter the functional relations of the State and the Union. In this context, Mr. Ramachandran referred to the observations of the court in the judgment of S.R. Bommai with regards to the purport and nature of Art 356 with a particular emphasis placed on para 98 and 99 of J. Sawant's judgment.

J. Kaul also surmised, “If I understand it correctly your submission is that the parliament cannot perform all the functions and should relegate back to the state legislature, the nature of President's rule being transitory.”

Mr. Ramachandran then proceeded to argue that the powers of a particular constituent body cannot be taken over in the guise of emergency powers. He submitted that the abrogation of Art. 370 was an irrational exercise of power against one constitution which also the parliament was supposed to protect.

At this stage, the judgment in Rameshwar Prasad was cited to state that the purpose of power of President's Order was only to protect and preserve the Constitution and it was only for an urgent remedial action.

Mr. Ramachandran further submitted that the concurrence of a delegate of president cannot be the purport of the term 'concurrence' in Art 370.

At this stage, J. Gavai and J. Kaul inquired, “Whether the governor can function in dual capacities?” To this, Mr. Ramachandran replied that by the very nature of the power sought to be exercised under Art. 370, the normal powers of the governor are to be kept in abeyance. However, J. Ramana and J. Gavai did not seem convinced by the aforesaid argument and were instead heard observing that during this period he exercises the power of both the governor and the president.

Mr. Ramachandra then proceeded to submit that the recommendation under Art 370(3) is unconstitutional for want of representation of the wishes of the people of Jammu and Kashmir through their elected representatives. It was submitted that in the present case, the governor who is a delegate of the president has given consent for a change in the interpretation of Art 370 (3) proviso thereby making the 'Constituent Assembly', the 'Legislative Assembly'.

Prior to rising for lunch, J. Kaul finally posed the much awaited query, “Why has the word 'temporary' been used in Art. 370?”

In the post-lunch session, Mr. Ramachandran submitted that C.O. 272 goes much beyond merely modifying the interpretative provision of Art 367. In effect C.O. 272 vests power of a certain kind only vested in a constituent body in a body which lacks it. He submitted that vide the impugned C.O., the power which has been forbidden by the state constitution has been given to the legislative assembly.

At this stage, J. Surya Kant very pertinently asked, “Please tell us that if certain constitutional obligation as provided for in Art 370 was to be performed by the Constituent Assembly and given that such Constituent Assembly is no longer in existence, who would be empowered to reconstitute such a constituent assembly?”

Mr. Ramachandran proceeded to submit that all these major constitutional changes have happened within a spate of 2 days. In this limited period of time there was no occasion for seeking out the will of the people of J&K. He further submitted that the people of the State were never able to voice their opinion on the point, whether or not they were agreeable to the state being denuded to its current form.

Addressing J. Kaul’s prior question, Mr. Ramachandran then submitted that in his opinion, the temporariness of Art 370 was only meant to be till 1957 i.e. for determination by the Constituent Assembly till the time it was in existence.

As the arguments proceeded further, J. Kaul summarised that perhaps Mr. Ramachandran’s arguments give rise to the question, dehors the present events, “Whether a UT could have been carved out of the state of J&K?”

Mr. Ramachandran then argued that the impugned Constitutional Orders were as much an amendment to the Constitution as is an amendment under Art 368.

During the course of the arguments, on taking an account of the vote count on the Reorganisation Bill, J. Kaul observed that in both the houses the bill was passed by more than two-thirds majority. However, Mr. Ramachandran was quick to intercede and add that this was without any such requirement being there.

In order to substantiate his previous arguments with regard to Art 370 and the role of the Constituent Assembly, Mr. Ramachandran read from the Hon’ble Apex Court’s judgments in Badrinath’s case, Puranlal Lakhanpal - I and Prem Nath Kaul v. The State of Jammu and Kashmir before the bench rose for the day.

Mr. Ramachandran will continue his submissions before the Constitution Bench tomorrow.

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