Thread by @VakashaS

Back at Supreme Court for the second day of hearings in the cases challenging abrogation of #Article370 and the Reorganisation of #JammuAndKashmir .

Here's what happened on the first day of hearings yesterday @TheQuint

https://twitter.com/VakashaS/status/1204251605614264320?s=19

Justices NV Ramana, BR Gavai, Sanjay Kishan Kaul, R Subhash Reddy and Surya Kant about to arrive

Senior advocate Raju Ramachandran to continue for Shah Faesal, Shehla Rashid et al.

Had been arguing how Presidential Orders & Reorganisation Act had been rushed through @TheQuint

Ramachandran first seeks to clarify a point of confusion from the last hearing, where Attorney General KK Venugopal objected to Ramachandran's claim that the Reorganisation Bill was rushed through without members having a chance to read it. @TheQuint

Ramachandran clarifies that he was referring to the resolution passed in Lok Sabha on 5 August approving the J&K Reorganisation Bill, not passage of the Reorganisation Act itself.

He says LS record shows it was passed without members being given a copy of the Bill.
@TheQuint

The Reorganisation Bill was only introduced in the Lok Sabha on 6 August.

Judges suggest this doesn't advance the petitioners' case too far. Ramachandran says he needed to respond to AG's objection. @TheQuint

Ramachandran says the point of going through all this history was to show that with the dissolution of the legislative assembly of #JammuAndKashmir & the way in which Parliament rushed through the proposals, there was no effective representation of the people of J&K. @TheQuint

#Article370 Case in Supreme Court:

Ramachandran continues his argument on why the Centre's actions (Presidential Orders + Reorganisation) could not have been carried out during a time of President's Rule under Article 356 of Constitution, as they are irreversible.

@TheQuint

He now refers to the landmark decision of the Supreme Court in 1994 in the SR Bommai case (indiankanoon.org/doc/60799/).

First reads Ambedkar's comments about the power of President's Rule in para 56
@TheQuint

Justice Ramana asks him to read from para 80 of the judgment, which deals with the Sarkaria Commission report and its view on when it would be justified to impose President's Rule.

@TheQuint

Ramachandran refers to para 99 of the Bommai judgment to show the importance of the States in India's federal system, and that Centre's power to override them is an exception in special situations. 

"The exceptions are not a rule."
@TheQuint

#Article370 Cases in SC:

Judges say that Bommai case doesn't deal with exercise of power of President's Rule under Article 356. It only refers to when it can be said that there is a breakdown of constitutional machinery, thereby justifying it's imposition.
@TheQuint

Ramachandran explains that we need to understand why President's Rule can be imposed to understand how it can be used. Refers to several more paragraphs including more comments by Dr BR Ambedkar during the Constituent Assembly Debates about the intent of the concept. @TheQuint

Builds to this argument:

President's Rule imposed to protect the Constitution and it's functioning. When it comes to #JammuAndKashmir , the proclamation of PR mentions preservation of Constitution of J&K as well.

How then can PR be used to do away with the latter?

@TheQuint

Justice Sanjay Kishan Kaul clarifies that the argument by Ramachandran is that the power under Article 356 of the Constitution is meant to be used in a limited manner.

Ramachandran agrees, cites further paras in Bommai judgment on how the power must not be abused.
@TheQuint

Ramachandran refers to para 96 of the Rameshwar Prasad judgment of the Supreme Court in 2006 (indiankanoon.org/doc/79280249/).

He concludes this point. Now moves on to the concurrence provided by the Governor to the Presidential Orders. @TheQuint

#Article370 Case in SC:

Ramachandran refers to the Proclamation of President's Rule in December 2018.

Under this, the President says that he assumed to himself the powers exercisable by the Governor of J&K.

@TheQuint

The Proclamation also says the President will act through the Governor as his delegate.

Justice Reddy suggests that the Governor is an agent of the President in such a situation, has to follow the directions of the President. @TheQuint

Ramachandran seeks to argue that in such circumstances, it was not possible for the Governor to provide his concurrence for the Presidential Order CO 272 of 5 August that applied the whole of the Constitution to #JammuAndKashmir and effectively abrogated Article 370.
@TheQuint

This is because the Governor no longer had his powers to act in place of government of J&K and represent the will of its people.

The judges are skeptical of this proposition, pointing out that the Governor doesn't lose his powers as Governor under President's Rule
@TheQuint

Ramachandran reiterates para 1(a) of the Proclamation of President's Rule which says the powers vested in or exercisable by the Governor under the Indian Constitution and the Constitution of J&K, are assumed by the President.

Judges still not entirely convinced.
@TheQuint

Ramachandran says it indicates the absurdity of a Governor giving concurrence to a Presidential Order in place of the govt of J&K, when the Governor is merely an agent or delegate of the President.

#Article370
@TheQuint

Same issue with recommendation given by Governor for the second Presidential Order CO 273, which removed the old Article 370 and ended #JammuAndKashmir 's special status.

@TheQuint

#Article370 Case in SC:

Going back to CO 272, Ramachandran then said that was done through this was effectively an amendment to the Constitution which has violated 3 features of the Basic Structure
(Contd)
@TheQuint

(1) Federalism - by unilaterally altering the federal relationship between the State and the Centre
(2) Democracy - by excluding any representation or participation of the people or their elected representatives
(Contd)

#Article370
@TheQuint

(3) Rule of Law - by blatantly violating the provisions of the Constitution which prescribe a specific framework for amendment
#Article370
@TheQuint

#Article370 and Reorganisation of #JammuAndKashmir in Supreme Court :

Court rose for lunch at 1 (apologies for the late tweets).

To resume at 2 pm

@TheQuint

In post lunch session, Raju Ramachandran has reiterated that Presidential Order CO 272 of 5 Aug was unconstitutional because the provision it used - Article 370(1)(d) - was not a "constituent power".

CO 272 made changes to how Constitution was to be interpreted re J&K @TheQuint

These interpretive changes then tied into the 2nd Presidential Order CO 273 which led to cessation of #Article370 .

Cessation required a recommendation by Constituent Assembly of J&K.

The new interpretation by CO 272 said Legislative Assembly = Constituent Assembly.
@TheQuint

Ramachandran says this was beyond the scope of what could have been done in the 1st Presidential Order.

Justice Surya Kant asks how the J&K Constituent Assembly was to be reconstituted, given it was dissolved in 1956. Ramachandran says that is not what he has to show.
@TheQuint

He says he just has to show that what was done was unconstitutional, not how it should have been achieved.

Recommending cessation of Article 370 was a constituent power, which was why Section 147 of the J&K Constitution also kept this out of legislature's scope.
@TheQuint

On this basis, Ramachandran argues, Parliament never had the power to recommend cessation of #Article370.

The recommendation they passed to enable CO 273, was "undemocratic for want of the will of the people and for want of public reason."
#JammuAndKashmir
@TheQuint

There is now a discussion on whether Article 370 was temporary, in the context of how it could cease to operate and CO 273.

Ramachandran reads out a passage from AS Anand's book on the #JammuAndKashmir Constitution and its relationship with India @TheQuint

The last argument that Raju Ramachandran proposes (he'll move on to case law to support his case after this) is on how the Reorganisation of #JammuAndKashmir could not have been done during a time of President's Rule.

#Article370
@TheQuint

He reiterates that the only time this was done was with Punjab & Haryana, and that the case challenging this was rejected on the basis that the Proclamation of President's Rule was not challenged - but it has been in this case.
#Article370
@TheQuint

This point had been raised yesterday, the new point raised today is that it was also not in the scope of the Govt's power to downgrade the State into a UT

Judges clarify that he means it could have been split into a State of J&K and other UTs but not only UTs.
@TheQuint

Ramachandran concludes his 'propositions'.

Says Supreme Court has power to conduct judicial review of the Centre's actions on the basis of Basic Structure doctrine, as what they did amounted to amendment of the Constitution.

#Article370
@TheQuint

Ramachandran notes that amendments to the Constitution of such a nature under Article 368 require a special majority in Parliament + ratification by legislative assemblies.

What was done here was a less rigorous procedure, so surely must be subject to judicial review.
@TheQuint

#Article370 Cases in SC:

Senior advocate Raju Ramachandran now setting out the case law to support his propositions.

He is going chronologically through cases of the Supreme Court dealing with #JammuAndKashmir and #Article370
@TheQuint

First up is P Lakhanpal vs State of #JammuAndKashmir (indiankanoon.org/doc/1572596/) which he uses to point out how Presidential Orders making changes to the way the Constitution of India applied to J&K like the major 1954 one, were passed with concurrence of Govt of J&K.
@TheQuint

The second case that Ramachandran raises is the important 1959 judgment in Prem Nath Kaul vs State of #JammuAndKashmir (indiankanoon.org/doc/816126/).

#Article370
@TheQuint

#Article370 Case in SC UPDATE:
Hearing has adjourned for the day, to be resumed tomorrow morning. Ramachandran to finish, other lawyers to be heard after court vacation.

Will post details of what Ramachandran was arguing using the Prem Nath Kaul judgment shortly.

@TheQuint

#Article370 #JammuAndKashmir

Apologies for the delay. The gist of Ramachandran's argument using the Prem Nath Kaul case is as follows:

He is seeking to use the judgment to set out the original understanding of the framers of the Indian Constitution re Article 370.
@TheQuint

Acc to him, it describes how the original idea behind the way Article 370 was drafted was to ensure that the people of #JammuAndKashmir , through their Constituent Assembly, could decide whether to ratify applications of Indian Constitution to J&K (see 370(2) below)

@TheQuint

This shows the importance accorded by the drafters of the Indian Constitution to the will of the people of J&K.

More to come tomorrow morning.

#Article370 #JammuAndKashmir

@TheQuint

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