Thread by @VakashaS

Day 3 of the hearings by a Constitution Bench of the Supreme Court in the cases challenging abrogation of #Article370 and Reorganisation of #JammuAndKashmir .

Here's what happened on Day 2
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https://twitter.com/VakashaS/status/1204629707213430784?s=19

Senior advocate Raju Ramachandran continues to present previous decisions of Supreme Court dealing with #JammuAndKashmir , to support propositions he has put forward against proclamation of President's Rule, the Presidential Orders & Reorganisation Act.

#Article370
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Ramachandran begins with the second Puranlal Lakhanpal case in 1961 (indiankanoon.org/doc/1157611/), which deals with the scope of the word 'modify' in Article 370.
#Article370
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The next judgment he refers to is one of the most important for this case, as it has been heavily relied on by the govt:

Mohd Maqbool Damnoo vs State of #JammuAndKashmir SC 1972 (indiankanoon.org/doc/713534/).

#Article370
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In Damnoo, the issue was whether a J&K-specific amendment to Article 367 - which would mean the Governor could give concurrence under a sub-clause of #Article370 instead of the defunct post of Sadar-i-Riyasat - was valid.

Supreme Couet held this was ok.
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According to the Centre in the current case, this shows that it is ok to use interpretative changes to Article 367 to make changes to the way #Article370 worked.

Ramachandran argues that in fact this judgment goes against the govt, as is clear from paras 22 onward
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He says that the change in Damnoo was purely one of interpretation, to give effect to something the Govt of J&K had already done. Did not involve a change from a democratic to non-democratic state, and is very different from what the Centre has done with #Article370
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He notes that in Damnoo, the apex court expressly rejected the idea that what had been done there was a backdoor amendment of #Article370 because it was meant to deal with a situation where a provision had become redundant.

Cites paras below

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[NB: please refer to this link for the Damnoo judgment of SC in 1972, old link doesn't have full text: casemine.com/judgement/in/5… ]

Ramachandran then brings up the more recent case of SBI vs Santosh Gupta SC 2016 (indiankanoon.org/doc/105489743/) in which the Supreme Court held that #Article370 was not temporary and could only cease to operate if the conditions under Article 370(3) were satisfied
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He had also referred to the decision that this finding in the Santosh Gupta case was based on, the 1968 decision of the SC in the Sampat Prakash case (indiankanoon.org/doc/1573666/).

In this case, court had gone into great detail on why #Article370 was NOT temporary.
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[You can read more about how these cases said #Article370 was not temporary here in a piece by me for @TheQuint : ]
thequint.com/news/law/artic…

Ramachandran then sets out how these cases all tie into his arguments:

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The Presidential Orders of 5 & 6 August sought to exercise both these 'constituent powers' - modifying which provisions of Constitution were applicable to J&K, and abrogate #Article370 - which Ramachandran says was to be left to State of #JammuAndKashmir

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Ramachandran concludes his argument by saying that on this basis, the way in which President exercised his power to issue the Presidential Orders CO 272 and CO 273 "is ultra vires his powers under the self-contained code that is Article 370".

#Article370
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Ramachandran clarifies this is separate from his earlier argument on why Proclamation of President's Rule under Article 356 was incorrect.

CONCLUDES

Now senior advocate Dinesh Dwivedi arguing on why the matter needs to be referred to a larger bench.

#Article370
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Senior adv Rajeev Dhavan suggests that court should only consider this later after hearing more arguments.

Judges say this was order decided on by the lawyers, are inclined to hear the arguments, though other lawyers will be heard before making a decision.
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"My doctors say the one thing I don't have is BP," says Dhavan in response to judges telling him not to worry.

"That's because you give it to everyone else," jokes Justice Ramana with a smile.

The whole courtroom laughs.

#Article370
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Turns out Dhavan didn't like the joke, says it was a personal remark.

Eventually the judges let Dwivedi continue his argument on reference.

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Dwivedi says that more than five judges are needed to hear this case as there are 2 pre-existing decisions of the court - each by a 5-judge Bench - that are in conflict with each other.

These are the Prem Nath Kaul judgment & the Sampat Prakash judgment.

#Article370
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Dwivedi says that from Constituent Assembly Debates, it appears that the objective behind way #Article370 was drafted was to "restrict the power of the Union", ensure people of J&K got a say.

Says Prem Nath Kaul judgment acknowledged this, but Sampat Prakash doesn't
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Interestingly, Sampat Prakash is the one which says #Article370 wasn't temporary, which is why even judges ask Dwivedi to clarify where he is going with this argument.
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Dwivedi explains that Prem Nath Kaul case indicates Article 370 was only to apply till J&K Constitution was enacted - no further changes could be made to relationship between India and #JammuAndKashmir after that, including by mechanism under Article 370. @TheQuint

Dwivedi now goes through the text of #Article370 itself to say that the wording indicates this was actually the intention of the drafters.

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He points specifically to the language of Article 370(2) which talks about how laws passed with concurrence of the J&K Govt were to be placed before the J&K Constituent Assembly for ratification.
#Article370
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Dwivedi says that if the govt wanted to do what they did (abrogate #Article370) since there was no J&K Constituent Assembly, the only way to do thiswas through the regular procedure for amendment of Constitution under Article 368.
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In any event, he said that this could not be used to get rid of the Constitution of #JammuAndKashmir .

This is because #Article370 was meant to be a temporary system in place till the Constitution of J&K was enacted which would then hold the field.
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Judges ask if Dwivedi means that the autonomy of J&K and the inability to apply more provisions of the Constitution there were set in stone then as there was no more Constituent Assembly.

Dwivedi says the Article 368 amendment route was still available.
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However, he notes that using this to abolish the Constitution of #JammuAndKashmir would amount to "using force on the people of J&K".

#Article370
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Dwivedi raised an interesting question to trigger this discussion with the judges:

What was the point of having a separate Constitution for #JammuAndKashmir if you could keep chipping away at the autonomy and special status of J&K using the mechanism of #Article370 ?

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Court breaks for lunch.

Some confusion over whether judges will sit again after lunch at 2 pm.

The next date of hearing will be 21 January 2020.

#Article370 #JammuAndKashmir
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#Article370 #JammuAndKashmir Cases in SC UPDATE:

Judges will not be sitting after lunch.

Hearing to resume on 21 January 2020, Dinesh Dwivedi to continue.

NOTE: He is representing Prem Shankar Jha, a former interlocutor in J&K during Vajpayee's time.
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