Day 4 Constitution Bench Arguments: 11 December 2019
A bench comprising Justices NV Ramana, Sanjay Kishan Kaul, R. Subhash Reddy, Bhushan Ramkrishna Gavai, Surya Kant is hearing challenge to the Presidential Orders that effectively abrogated Article 370 of the Constitution of India. Article 370 afforded the former State of Jammu and Kashmir special constitutional status. Simultaneously, it is hearing a challenge to the Jammu and Kashmir Reorganisation Act, 2019 (hereafter Reorganisation Act), which bifurcated the State of Jammu and Kashmir (J&K) into two Union Territories: J&K and Ladakh.
Sr. Adv. Raju Ramachandran continued his arguments from yesterday, on behalf of Shah Faesal.
Restrictions on President’s Rule
Sr. Adv. Raju Ramachandran’s first submission was that changes cannot be brought about under President’s Rule that permanently alter a State. He argued that the nature of Article 356 (President’s Rule) is restorative, intended to resolve a breakdown in a State’s constitutional machinery. Hence, he asserted that any exercise of power by the president or his delegate, the Governor, is transient in nature.
Relying upon Article 357(2), he argued that the State legislature must necessarily ratify changes brought about by the Union Parliament, after President’s Rule ceases. He submitted that a State is the sole competent authority to promulgate change in its field and the plenary powers of the Parliament cannot be used to subsume the same.
He concluded that the Union’s abrogation of Article 370 required the concurrence of the J&K Constituent Assembly, or at the very least the Legislative Assembly.
Sr. Adv. Raju Ramachandran argued that the basic structure doctrine applies to the current matter, even though the amendment to Article 370 was brought about via a Presidential Order. He asserted that if Parliament’s power to amend the Constitution under Article 368 is subject to the basic structure test, then any amendment brought about via a presidential order must surely also be subject to the test. He implied that the bar for subjecting Parliament’s constituent powers to judicial review is much higher than it is for the President’s powers.
Having established this, he argued that the Presidential Orders (COs 272 and 273) that altered Article 370 violated a basic feature of the Constitution – federalism. He relied on SR Bommai and Rameshwar Prasad to support his argument. In particular, he said that federalism requires (i) Article 356 to be transient nature and (ii) that parliamentary legislation under Article 357 must be reversible.
Constituent not Legislative Power
Arguments then concentrated on the two presidential orders that resulted in the amendment of Article 370: COs 272 and 273. CO 272 altered the meaning of ‘Constituent Assembly’ in Article 370(3) of the Constitution, so as to allow for the J&K Legislative Assembly to recommend the dissolution of Article 370. In particular, it inserted clause 4 into Article 367 of the Constitution. Clause 4 states that ‘Constituent Assembly’ shall mean ‘Legislative Assembly’. CO 273 amends Article 370 to make the Constitution of India applicable to the State.
First, Sr. Adv. Ramachandran challenged the constitutionality of CO 272. He stressed that Article 367 is only an interpretational clause. He then argued that CO 272 brings about an amendment which is not merely interpretational. He explained that the amendment vests constituent power in the J&K Legislative Assembly, a power which it previously did not possess. He stressed that the J&K Constitution does not vest constituent power in the Legislative Assembly. Therefore, he argued that CO 272 does not bring about a mere interpretational amendment, but a substantive one, despite being couched in Article 370.
Sr. Adv. Ramachandran argued that the President did not have the power to issue CO 272. President Ram Nath Kovind issued CO 272 via Article 370(1)(d). Sr. Adv. Ramachandran asserted that Article 370(1)(d) did not vest the President with the power to transfer constituent power from the Constituent Assembly to the Legislative Assembly.
Next, he argued that CO 273 is unconstitutional because it did not emanate from a recommendation by the Constituent Assembly. Article 370(3) specifies that the recommendation for abrogation must come from the Constituent Assembly of J&K. CO 272 vested the power in the J&K Legislative Assembly instead. And as J&K was under President’s Rule at the time, the Union Parliament made the recommendation in place of the J&K Legislative Assembly. Sr. Adv. Ramachandran re-iterated that the Legislative Assembly did not have the constituent power to make the recommendation and that therefore neither could the Union Parliament have such a power (in the context of Article 370).
The Bench inquired who held the constituent power, given that the J&K Constituent Assembly has been dissolved.
Sr. Adv. Raju Ramachandran responded that as the petitioner he was not obliged to establish this. He said that he merely had to show that neither the J&K Legislative Assembly (and thereby the Union Parliament) nor the President possessed this power. He added that the decision to vest the J&K Legislative with constituent powers should be democratic.
Finally, he said that even if it could be assumed that the J&K Legislative Assembly had the constituent power to recommend the cessation of Article 370, it does not follow that this power could be transferred to the Union Parliament under Articles 356 and 357.
He then turned his attention to the Reorganisation Act, which bifurcated the State of J&K into two Union Territories. He said that as the Act was passed without first having been referred to the J&K Legislative Assembly, it was in violation of Article 3 of the Indian Constitution. He stressed that the proviso of Article 3 requires any parliamentary legislation that alters a State’s territory to first be referred to the State’s Legislative Assembly.
Next, he argued that while Article 3 allows the Union Parliament to alter a State’s boundaries and form new States, it does not provide for the complete extinguishment of State via the creation of two Union Territories.
7 Judge reference
Sr. Adv. Dinesh Dwivedi submitted that he wished to address the Court to argue in favour of a reference to a 7-Judge Bench. He said that the judgments in Sampath Prakash and Mohd. Maqbool Damnoo are in conflict with the earlier judgment of PN Kaul. All of these are 5 judge bench judgments. Sr. Adv. Ramachandran disagreed with Sr. Adv. Dwivedi’s request.
The Bench will continue to hear arguments tomorrow, 12 December 2019.