[By Aditya Gaggar, Advocate]

 

 

 

 

 

 

Mr. Ramachandran then read over Art 357(2) in order to further submit 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. He submitted that never before has a state been reorganised 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. 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 it's mind to the bill at all and the same was passed in a rushed manner. Before the bench rose for the day, 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.

 

 

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As hearing before the Hon’ble Supreme Court continued for the second day, Mr. Ramachandra continued with his contention 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 the relied upon statement 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 J. Sawant's observations in the judgment of S.R. Bommai with regards to the purport and nature of Art. 356. J. Kaul further 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 a (J&K) 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 meant 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. Upon 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 relied upon 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.

 

 

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As the hearing before the Hon’ble Supreme Court ran into its third day, continuing his submissions, Mr. Raju Ramachandra, Sr. Advocate, referred to four more judgments of the Apex Court - Puranlal Lakhanpal-II [on the principle of amendment and radical changes in the context of exercise of power under Article 370(1) (d)], Sampath Prakash [on temporariness of Article 370], Mohd. Maqbool Damnoo [on the nature of exercise of power under Article 370(1) in the year 1965 to replace the word ‘Sadar-i-Riyasat’ with ‘Governor’ being on a different footing from its exercise in the year 2019] and finally, the discussion on temporary nature of Article 370 in SBI v. Santosh Kumar Gupta (in extensor).

 

 

Mr. Ramachandran submitted that as per him, Article 370 will continue in force until specified event in Article 370(3) takes place. In his opinion, the Constituent Assembly did not desire that Article 370 should cease to exist.

 

 

 

Mr. Ramachandran thereafter proceeded to draw a common thread through all the aforestated cases. He argued that consultation, recommendation and concurrence are all species of constituent power. Relying upon S. 147 of the Constitution of Jammu and Kashmir, he posited that consultation is allowed as a right to the Government of Jammu and Kashmir. In this context, Mr. Ramachandran went on to rely upon J. Ray’s description of Constituent Power in Indira Nehru Gandhi’s case and the description of Constituent Power as described in I.R. Coelho. Per him, the Constituent Power is of two types, plenary i.e. power that is free from external limitations and amending i.e. derivative power and Article 370 confers both species of Constituent Power on Jammu and Kashmir. While the democratic power resides with the State, the executive power vests with the Union. Therefore, it is only the State of Jammu and Kashmir which can decide as to how to exercise its constituent powers or who can appoint the Constituent Assembly. The President therefore cannot transfer this power to the State Legislature and any such act on the part of the President is ultra vires of his powers under Article 356 of the Constitution of India.

 

 

With this Mr. Ramachandran concluded his arguments. However, before taking his place he indicated that the Basic Structure issue shall be dealt with by Mr. Shekhar Naphade, Sr. Advocate, while Mr. Dinesh Dwivedi, Sr. Advocate, shall address next on the issue of reference of the present dispute to a larger bench.

 

 

After apprising the bench that he was appearing for intervenor, one Mr. Prem Shankar Jha, a journalist who also served as interlocutor for the State of Jammu and Kashmir during Prime Minister Vajpayee’s tenure, Mr. Dinesh Dwivedi, approached his arguments from a completely new end. He argued that there was no power under Article 370 (1)(d) available at all, as no provisions of the Constitution of India could have been made applicable in the State of Jammu and Kashmir through Presidential Orders and that exercise of power was in contravention of Article 368 of the Constitution of India. As per him, Article 370 was supposed to have ceased with the Constituent Assembly. He argued that at time of the impugned action, Article 370 did not exist, it died its natural death, having become otiose long back with the promulgation of the Constitution of Jammu and Kashmir and therefore, its power had also ceased to exist. He further elaborated that once the constituent assembly ceased to exist, then Article 370 also lost its significance.

 

 

He submitted that the articles under Part XXI of the Constitution are Temporary, Transitional and Special Provisions. They are temporary, being limited by both time factor and objective.

 

 

He further submitted that the attempt to modify the word ‘Constituent Assembly’ to ‘Legislative Assembly’ through the exercise of power under Art. 370(1)(d) could not have been done as the only route that could have been adopted was only via Art. 368, as that interpretational change was equivalent to constitutional amendment. He even went to the extent of saying that the Constitution of Jammu and Kashmir is not subordinate or relatable to the Constitution of India and that it had its own sovereign and independent identity and status as reflected in Art. 370 itself.

 

 

Turning to Jammu and Kashmir’s history, he submitted that the proclamation of Maharaja Hari Singh to establish that State was not bound by the provisions of Constitution of India. He retained his sovereignty. Thereafter, he also referred to the provisions of the Proclamation issued in the year 1949 by the regent Maharaja Karan Singh by virtue of which provisions of Constitution of India were made applicable to the State of Jammu and Kashmir.

 

 

Relying upon Article 370 (2), he argued, that it was envisaged by the framers of the Constitution of India that the relationship of the State of Jammu and Kashmir will crystalize once Constitution for the State of Jammu and Kashmir is formulated by State Constituent Assembly. He even went to the extent of saying that the Constitution of Jammu and Kashmir is not dependent on Article 370. Article 370 does not give the power but only recognizes it. Like the Constitution of India cannot be annulled through exercise of power of amendment under Article 368 of the constitution of India, similarly the Constitution of Jammu and Kashmir cannot be annulled using the provisions of Article 370 itself. He submitted that executive power under Article 370 could not have been employed to transform the relationship of the State with India.

 

 

At this stage J. Kaul aptly questioned whether the Constitution of the State and Constitution of India could be equated at all? Surely, a distinction has to be made between the Constitution of a State and the Constitution of the Country. The integrity of the country is written in stone and that cannot be changed by anyone. Suppose everyone in the state agreed that Article 370 has to go then what would be the route to do so? To this Mr. Dwivedi replied that it should have been finished with the conclusion of the State Constituent Assembly. Now, the only way to do so is through a Constitutional Amendment under Article 368. He questioned that if the objective was only to chip away the powers from the Constitution of Jammu and Kashmir from time to time then what was the purpose of having another Constitution at all? However, again J. Kaul very aptly cautioned Mr. Dwivedi that somewhere he was equating the Constitution of India and the Constitution of Jammu and Kashmir.

 

 

In an attempt to answer his own question, Mr. Dwivedi argued that it was envisaged by the framers of the Constitution of India that the State of Jammu and Kashmir will have a sovereign constitution and that is why they went to the extent of allowing another Constitution. The framers of the Constitution also gave autonomy to the State of Jammu and Kashmir as our federal system was not rigid rather it was flexible enough to accommodate different sorts of federal relationships. By the time of this submission, it was time for the bench to rise for the day and now the matter stands over to 21st January, 2020 for further arguments.