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 @[email protected]
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 @[email protected]

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.
@[email protected]

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. @[email protected]

#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.

@[email protected]

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

First reads Ambedkar's comments about the power of President's Rule in para 56
@[email protected]

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.

@[email protected]

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."
@[email protected]

#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.
@[email protected]

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?

@[email protected]

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.
@[email protected]

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

He concludes this point. Now moves on to the concurrence provided by the Governor to the Presidential Orders. @[email protected]

#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.

@[email protected]

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. @[email protected]

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
@[email protected]

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.
@[email protected]

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
@[email protected]

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.

@[email protected]

#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)
@[email protected]

(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
@[email protected]

#Article370 and Reorganisation of #JammuAndKashmir in Supreme Court :

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

To resume at 2 pm

@[email protected]

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 @[email protected]

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.
@[email protected]

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.
@[email protected]

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.
@[email protected]