1. The Constitution Bench headed by Justice N.V. Ramana commenced the hearing of petitions challenging Presidential Orders of 5th & 6th Aug 2019 that revoked special status of J&K and J&K Reorganisation Act, 2019 passed on 9th August 2019 that divided the State into two UTs
2. Kashmiri Samiti, Delhi, which is one of the largest organizations representing the interests of KPs, has filed an impleadment application in the Writ Petitions relating to amendment of Article 370 & J&K Reorganisation Act of 2019 through the legal team of @indiccollective
3. On 10th December 2019, Advocate Manohar Lal Sharma amidst the lawyers jostling for space, made a special request to the Bench for the case to be heard in a larger courtroom and the proceedings be telecasted live for the people who could not be present in the courtroom.
4. The Bench enquired the advocates from both sides about the submission of a common compilation of all documents as the judges had requested before. Out of some 25 volumes only 5 were submitted to the court till date.
5. Senior Advocates Mr. K.K. Venugopal, Mr. Rajeev Dhawan and Mr. Raju Ramachandran requested the Bench to commence hearings and that the remaining volumes will be submitted later.
6. Attorney General K.K. Venugopal also suggested that petitioners should be permitted to start arguments. Justice Ramana then enquired the number of counsels frm Petitioner’ side & suggested that lawyers may discuss amongst themselves to ensure that arguments are not repeated
7. Sr Adv Dhawan assured that the arguments that are made will not be repeated and that the Bench may leave it to the lawyers’ discipline to conclude at the earliest.
8. Sr Adv Raju Ramachandran, representing Petitioners in tagged Writ namely Shah Faesal v. Union of India, W.P.(C) 1099/2019 [filed by former bureaucrat Shah Faesal, activist @Shehla_Rashid and others] began making submissions. He listed out 2 broad heads that he will argue under
@Shehla_Rashid 9. First challenge is whether the “temporary powers of the Parliament under President Rule” can be used to bring irreversible changes in the federal relationship of a State with the Union.
@Shehla_Rashid 10. Further Sr Adv Raju Ramachandran wondered whether the identity of the said federal state can be altered, by splitting it into two Union Territories, without any participation from the elected institutions of that State in such decision-making.
@Shehla_Rashid 11. He said that President’s Rule is itself “temporary, restorative & ameliorative in character”. Whether all the equivalences or legal fictions created by Article 356 can lead to a consequence where there is irreversible change to a federal relationship.
@Shehla_Rashid 12. The Second broad argument of Sr Adv Ramachandran was that “when Article 370 prescribes within itself the mechanism for alteration of the federal relationship, whether that mechanism can be flouted or not complied with for making the concerned irreversible change”.
@Shehla_Rashid 13. Sr Adv Raju Ramachandran then handed the outline of submissions to the Bench, which listed the main Constitutional and legislative provisions and the relevant dates that indicate his line of arguments.
@Shehla_Rashid 14. At this point, Senior Advocate Mr. Dinesh Dwivedi intervened to remind the Bench that regarding the second part of the argument, there are two existing contradictory judgments of the Constitution Bench. He prayed for reference to a larger Bench.
@Shehla_Rashid 15. To this request, Justice Kaul replied by saying that the Court is aware of the said judgments and that this issue can be considered after all parties have put forth their arguments.
@Shehla_Rashid 16. Sr Adv Ramachandran then continued reading the outline of his submissions. He said that the petitioners challenge the Constitutional Orders 272 & 273 and the J&K Reorganisation Act for being unconstitutional due to impermissible use of powers under Article 356.
@Shehla_Rashid 17. Sr Adv Raju Ramachandran further added that CO 272 and 273 are unconstitutional for being passed without any consent from the people of J&K as expressed from their chosen form of government.
@Shehla_Rashid 18. He also submitted that CO 272 and CO 273 ultra-vires Article 370 and the para (c)(ii) of the President’s Proclamation dated 19.12.2018 (for President’s Rule) which suspend the proviso of Article 3, is unconstitutional for being violative of the principles of federalism.
@Shehla_Rashid 19. Therefore J&K Reorganisation Act, 2019 is violative of Article 3 of the Constitution. Sr Adv Ramachandran then read out the Instrument of Accession (IoA) of J&K before the Court. He also reminded the Court of the circumstances in which the said IoA was issued.
@Shehla_Rashid 20. He also read out the letter of acceptance (of accession) sent by Lord Mountbatten to the Ruler of J&K. At this, Justice Kaul added that the text of the IoAs was common for all the princely states and there cannot be any special consequence arising out of the IoA of J&K.
@Shehla_Rashid 21. Sr Adv Raju Ramachandran submitted in response that other princely states executed supplementary instruments conceding residuary powers to the Union, but J&K did not.
@Shehla_Rashid 22. Justice Subhash Reddy then asked Sr Adv Raju Ramachandran if all these instruments were executed in English, to which he answered in affirmative.
@Shehla_Rashid 23. Sr Adv Raju Ramachandran then read out the text of Article 370 as it stood before 6th August 2019 before the Court, followed by the post CO 273 version of the same Article. At this point, the bench rose for lunch.
@Shehla_Rashid 24. Post lunch, Sr Adv Ramachandran continued with his submissions . He read out Sections 2, 4, 5, 6, 92 and 147 of the J&K Constitution Act, 1957.
@Shehla_Rashid 25. Stressing on proviso to Sec 147 he submitted that State legislature of J&K has no power to amend/propose to amend provisions of Constitution of India as applicable to J&K. He added that state legislature does not possess constituent power that Constituent Assembly of J&K did
@Shehla_Rashid 26. At this point, Justice Reddy and Justice Ramana questioned the relevance of stress placed by senior counsel on Proviso to Section 147. To this, Sr Adv Ramachandran replied by saying that relevance will be clear once he finishes reading out relevant provision in sequence.
@Shehla_Rashid 27. Sr Adv Ramachandran then continued to read Articles 356 and 357 before the court. Bringing attention to Clause (2) of Article 357.
@Shehla_Rashid 28. He submitted that any legislation passed by Parliament exercising in place of State legislature as a consequence of President Rule being in place, can be repealed or replaced or accepted by a competent legislature or other authorities after the President Rule is over.
@Shehla_Rashid 29. Further Sr Adv Raju Ramachandran added that the Governor of the State would fall under the category of “other authorities”.
@Shehla_Rashid 30. Sr Adv Ramchandran then continued reading out Article 367(4) and Proviso to Article 368(2) as applicable to J&K. He pointed out that suspension of powers of the State Legislature and the text of proclamations made under Article 356 have been common in most cases
@Shehla_Rashid 31. He then stated that it is the first time that the federal relationship of the State with its Union has been completely changed during a President Rule.
@Shehla_Rashid 32. He added that even reorganisation of a State has happened once before when States of Punjab & Haryana were created. That case was dealt by Delhi High Court and never came up to SC. The High Court had held that State Legislature’s recommendation or concurrence was not required
@Shehla_Rashid 33. Sr Adv Raju Ramachandran further submitted that in above case, the very proclamation of President Rule was not under challenge which in present case it is.
@Shehla_Rashid 34. With regards to the Governor stepping in boots of the State Legislature for giving concurrence under Article 370, the senior counsel said that it was similar to the President himself giving concurrence to his proposed Order.
@Shehla_Rashid 35. He added that substitution of Constituent Assembly of J&K with State Legislature via CO 272 is in effect substituting a legislative body in place of a constituent one.
@Shehla_Rashid 36. Sr Adv Raju Ramachandran then stated that these powers too are then exercised by the Parliament in absence of an elected legislature, thus amounting to use of constitutional power for an unauthorised purpose.
@Shehla_Rashid 37. Sr Adv Ramachandran then took the court through a list of dates/events starting right from the Treaty of Lahore executed on 09.03.1846. He detailed how the region came under the reign of Maharaja Gulab Singh, an ascendant of Maharaja Hari Singh who acceded to India.
@Shehla_Rashid 38. He pointed out to the Court that being a princely State, J&K was never a part of British India.
@Shehla_Rashid 39. The list of dates the traced through the rule of Maharaja Hari Singh to the Proclamation of President Rule.
@Shehla_Rashid 40. With respect to passing of CO 272, the Senior Counsel asserted that State was under lock-down since 2nd August & it was impossible that the J&K Governor would have been able to give his concurrence to proposal for said CO
@Shehla_Rashid 41. Similarly regarding J&K Reorganisation Act the learned Counsel submitted that no member of Parliament had received a copy of the Bill before it was passed. Mr. Ramachandran posed the question whether legislative processes conducted in such haste can be called ‘constitutional’
@Shehla_Rashid 42. He quoted the Court in Sec 377 verdict (Navtej Singh Johar v UOI, WP (Crl.) No. 76/2016) pronounced on 12.07.18 to call Reorganisation Act similar to “pre-parliament laws” which cant be presumed ‘constitutional’ because Parliament never got a chance to apply its mind to them
@Shehla_Rashid 43. To this Attorney General K.K. Venugopal intervened and submitted that the statement of Sr Adv Ramachandran is incorrect, as the Reorganisation Bill was mentioned in the supplementary list for the day’s proceeding and a copy was circulated before passing the same.
@Shehla_Rashid 44. As the Bench was about to rise for the day, Sr Adv Raju Ramachandran promised to clarify his statement first thing in the next hearing.
