Thread by @VakashaS

Constitution Bench of Supreme Court to hear petitions challenging abrogation of #Article370 and the reorganization of #JammuAndKashmir today at 10:30 am.

Will arguments finally begin or will the case be adjourned again?

Will be reporting live for @TheQuint from court 2.

Here's what happened during the last hearing on 14 November, along with details of the govt's reply to the original petitioners and their rejoinder.

Centre had asked for more time to respond to new petitions - assists they haven't done so.

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thequint.com/news/law/supre…

The court's own cause list states that the direction by SC to complete written pleadings before this hearing has not been complied with.

Centre and Govt of J&K were to submit responses by 22 November. Hearing that responses may have been submitted on Friday, 6 Dec.

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Hearing has been delayed as there is a Full Court reference in CJI's courtroom re death of retired Supreme Court judge and former Karnataka Lokayukta, Justice NG Venkatachala.

#Article370 #JammuAndKashmir
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#Article370 + #JammuAndKashmir Reorganization Cases in SC:

Attorney General KK Venugopal is here, presumably to represent Union of India.

Raju Ramachandran, Rajeev Dhavan, CU Singh and a host of other senior advocates here for the petitioners.
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The five judges of the Constitution Bench are now seated:

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

#Article370 #JammuAndKashmir

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The J&K High Court Bar Association, one of those whose petitions the govt was supposed to respond to by 22 November, have pointed out that the govt reply was only submitted on 6 December. Have asked for a week to submit their rejoinder.

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Further to the court order of 14 November, a common compilation of important documents (including the J&K Constitution and the 1951 White Paper), judgments, etc for all the parties had been prepared, running to 5 volumes.

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Some of the petitioners' lawyers including Rajeev Dhavan are asking if more volumes can be submitted, over the course of the hearings, to be officially part of the compilation.

Including relevant sections of Constituent Assembly Debates.

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After some debate, it's been agreed that additional volumes are to be submitted by the end of the week.

Arguments to begin today. Judges ask how many lawyers arguing for the petitioners, ask them to figure out a schedule.

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Dhavan points out that not all the petitioners may be in agreement over their arguments and approaches.

Dhavan is representing Sajad Lone's People's Conference, says he has not yet consulted with the other lawyers, but has specific instructions from his client.
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Senior advocate Raju Ramachandran, representing Shah Faesal, Shehla Rashid & five other politicians & residents of #JammuAndKashmir , to begin.

Details of their petition @TheQuint , including challenge against proclamation of President's Rule in Dec 18:

thequint.com/news/law/shah-…

Advocate ML Sharma, who filed the first PIL, causing scenes in court. First suggests using a bigger courtroom.

Then refuses to give up a seat at the front to the senior advocates who are arguing.

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"Don't know if your Lordships have seen the Game of Thrones" quips Attorney General KK Venugopal.

Sharma refuses to move.

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Challenges to #Article370 and #JammuAndKashmir Reorganization:

Raju Ramachandran finally starts his arguments.

Says there are five grounds of arguments, beginning with the problems with the Proclamation of President's Rule in J&K on 19 Dec 2018.
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Then the challenges to the President's Orders on 5 August (CO 272) & 6 August (CO 273) which abrogated #Article370 .

Then a challenge to the #JammuAndKashmir Reorganisation Act 2019.

Finally, a challenge to the Governor's concurrence for these actions of the Centre.
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Ramachandran says the key question is whether the Centre could use the temporary power granted by President's Rule to make irreversible changes to #JammuAndKashmir 's status and the federal structure of India.

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Senior advocate Dinesh Dwivedi, who is representing one of the intervenors in the case, asks the court to note that he and PUCL in their petition have asked for this case to be referred to a larger bench, doesn't want this to later be a problem.

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Raju Ramachandran says he would like to begin by referring to the Instrument of Accession for #JammuAndKashmir and its Acceptance.

Reads out the clauses of the IOA, including those noting accession is subject to the terms and conditions agreed

Ramachandran notes some further details in the Acceptance letter by Lord Mountbatten that indicate accession was to be ratified by people of #JammuAndKashmir after war was over, says some of these aspects are no longer relevant as J&K became an integral part of India
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Justice Sanjay Kishan Kaul asks if the Instrument of Accession for #JammuAndKashmir was different than that signed by other princely states.

Ramachandran says there were some differences, some schedules on residuary powers were different.

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Before moving on to the #JammuAndKashmir Constitution, Ramachandran now refers to the text of #Article370 as it used to be.

Notes how it required "consultation" of govt of J&K re matters already agreed upon in IOA, but "concurrence" when it came to new matters.
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Ramachandran says that the significance of this is that any major changes to the nature of #JammuAndKashmir 's relationship with rest of India including application of Constitutional provisions, required the agreement of the people of J&K.

#Article370
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Also points to language of Article 370(3), which allowed modification of #Article370 / making it cease to operate, for which a recommendation by Constituent Assembly of J&K is necessary.

Says this means such a proposal was supposed to originate from the people of J&K.
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Ramachandran refers to CO 273, the Presidential Order which put an end to #Article370 , and notes that it was passed on recommendation of Parliament, not the J&K Constituent Assembly.

Matter to resume at 2 pm after lunch.

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#Article370 and Reorganisation of #JammuAndKashmir :

Hearing set to resume soon.

In the meanwhile, here's the Presidential Order dated 6 August 2019 (CO 273), which Ramachandran was referring to just before.

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#Article370 and Reorganisation of #JammuAndKashmir UPDATE:

Hearing resumes after lunch.

Raju Ramachandran (for Shah Faesal, Shehla Rashid et al) now refers to sections of the Constitution of J&K.

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Ramachandran points out the provisions dealing with #JammuAndKashmir being an integral part of India, application of provisions of the Indian Constitution, etc.

Then moves on to provision for Governor's Rule, which was in place for six months till President's Rule.
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Ramachandran then moves to the 2nd proviso to Section 147 of J&K Constitution, which says that the legislature of J&K does not have power to change following aspects:

➡️ J&K is integral part of India.
➡️ Provisions of Constitution applicable to J&K (ie 370)

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The judges ask Ramachandran what the relevance of this argument is.

He explains that u/ President's Rule, the President + Parliament can only be given powers exercisable by the legislature of a State. If J&K legislature couldn't do something, neither could they
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He reads out from Article 357 of the Constitution, which specifies this.

He also points to Article 357(2) in particular, which indicates that any such laws passed by President and Parliament have to be reversible by the State legislature subsequently if it wants.

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This is because 357(2) says the legislature is to have the power to alter, repeal or amend the laws made under President's Rule.

Ramachandran says the Presidential Orders, Reorganisation and concurrence were not reversible.

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[NOTE: We have all the updates about #JammuAndKashmir from inside and outside the courtroom here on @TheQuint 's live blog : ]
thequint.com/news/india/jam…

Ramachandran argues that President does NOT get power of J&K govt under Article 370(1)(d), to give concurrence to a change in which provisions of Constitution apply to J&K.

Essentially would mean President is giving concurrence to himself through Governor as delegate.
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Ramachandran then addresses the use of Article 368 to change interpretation of the provisions relating to J&K, allowing Governor to give concurrence from J&K Govt, and J&K Legislative Assembly to give recommendation instead of J&K Constituent Assembly.
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These interpretations were crucial to passage of the Presidential Orders and the J&K Reorganisation Act.

Ramachandran says they were "impermissible", as these weren't just changes of nomenclature, like when Governor was substituted for Sadr-i-Riyasat.
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[For context: Govt has argued that there is sufficient precedent for modification of Article 370 using changed interpretations, an example of which was when Sadr-i-Riyasat was interpreted as Governor.]

Ramachandran says such changes are impermissible since they would give Governor powers that an elected government was supposed to have, which is an expression of the will of the people.
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Ramachandran had also argued that reorganisation of a State had never happened while the State was under President's Rule - except for Punjab & Haryana.

Delhi HC dismissed a challenge to that as Proclamation of PR want contested. Here, that's been done.
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Ramachandran has now been taking the court through various documents dealing with relationship of J&K and India from 1840s onward.

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One of the interesting points raised was that the Indian Independence Act 1947 recognised that princely states joining either India or Pakistan could cede more powers than they had planned to as per accession if they wanted, but this would only be v with their consent.
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Ramachandran refers to several documents indicating #JammuAndKashmir decided to retain a lot of these residuary powers instead of letting them vest in India like most other princely states.

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He notes that the Delhi Agreement of 1952 expressly recognised that unlike other princely states whose residuary powers rested with Parliament, for #JammuAndKashmir , they rested with the State itself.

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Ramachandran points out that older Presidential Orders which modified extent to which Constitution applied (including CO of 1954) and changes in interpretation for #Article370 all complied with the procedural requirements.

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Ramachandran has now been taking the court through the events leading up to the impugned actions of the Centre, from imposition of Governor's Rule after collapse of BJP-PDP government, to dissolution of the legislative assembly.

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He argues that there was never any indication through any of this of an intention to abrogate #Article370 and of any will of the people to accept this.

Also notes that the Legislative Council of J&K hadn't been dissolved at the time of the Presidential Orders. @TheQuint

Ramachandran refers to the statement of J&K Governor Satya Pal Malik on 3 August when he said there were no plans to abrogate #Article370 , that all measures re cancellation of Amarnath Yatra, evacuation of tourists was purely based on security inputs.
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Ramachandran is now using the timeline of the Presidential Orders dates 5 & 6 August, as well as the #JammuAndKashmir Reorganisation Act, to demonstrate the haste with which approvals were rushed through Parliament.

Which means no application of mind, he argues.
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"Presumption of constitutionality cannot attach if Parliament has not had a chance for application of mind," he argues.

Says the Bill was passed without MPs having a chance to read it.

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Attorney General KK Venugopal protests that this is inaccurate, says Ramachandran's own petition says otherwise.

Ramachandran to clarify first thing in the morning tomorrow, when the matter will resume.

Hearing adjourned.
#Article370
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