President’s rule can’t be used to change J&K’s status: SC told

The Supreme Court was Wednesday told that a temporary phase of President’s rule cannot be used to bring about an irreversible change in the nature of relation between Jammu & Kashmir and the Union.

A 5-judgeconstitution bench of the top court, headed by Justice N V Ramana, was hearinga batch of petitions challenging the abrogation of Article 370. The bench alsocomprises Justices Sanjay Kishan Kaul, R Subhash Reddy, B R Gavai and SuryaKant.

   

Advocate RajuRamachandaran, appearing for bureaucrat-turned-politician Shah Faesal, ShehlaRashid and other petitioners, today put forth his

arguments in thecase.

“This route of atemporary phase of President’s rule which was imposed in the state fromDecember 19, 2018 till October 31, 2019 cannot be used to bring about anirreversible change in the nature of relation between the State and the Union,”the senior lawyer said.

“It is completelyagainst the Constitutional ethos,” he added.

The petitionersreferred to the constitutional provision and said that only the ConstituentAssembly, which represents the will of the people, is empowered to makerecommendation to the President on any changes in the special status of Jammuand Kashmir.

The bench thenquestioned that if Governor does not lose his power under the President’s rule,then why can’t he recommend for abrogation of Article 370.

Ramachandaranreplied that the Governor, under President’s rule, does not represent the willof the people.

The top court askedif the Governor is the agent of the President, then would he not have to act inconcurrence to the President’s orders.

The senior lawyersaid that is why he could not have given concurrence to the Presidential orderspassed with regard to the abrogation of Article 370.

“Theproclamation of President’s rule on December 19, 2018 states that the Presidenthad assumed the powers which were exercisable by the Governor of Jammu andKashmir. So, the President gave concurrence to himself?” he said, addingthat the temporary nature of the provision of Article 370 does not demand thatit is capable of being abrogated, modified or replaced unilaterally.

Provisions ofArticle 370, which gave special status to the erstwhile state of Jammu andKashmir, was abrogated by the Centre on August 5.

“Who could bethe competent authority to reconstitute the Jammu and Kashmir ConstituentAssembly (to decide on special status of J&K)?” the bench asked Raju Ramachandaran.

Ramachandaranreplied that Article 370 gave people of Jammu and Kashmir the right to chooseand the ultimate decision should have rested with them.

“If that is thecase then will it be a case of referendum, concurrence or consultation?,”the bench asked.

Ramachandaran saidthat President could have abrogated provisions of Article 370 only onrecommendation of the Constituent assembly, which represented the will of thepeople of the state.

“Article 370 ofthe Constitution left it to the Constituent Assembly to decide whether it wantsthe special status provision to be continued or abrogated,” he said,adding that the Article states the recommendation of the Constituent Assemblymust be taken.

“When there isno Constituent Assembly, then it is understandable that a state legislaturewill take its place. Under no circumstances the President can usurp the powerof Constituent Assembly,” Ramachandaran said, adding that Centre could nothave abrogated the constitutional provision.

He said the two presidentialorders issued with regard to abrogation of Article 370 have completely floutedthe tenets of basic structure of the Constitution of India.

“This was aflagrant attack on the basic structure of the Constitution. Rule of law,federalism and democracy have been struck with the two presidentialorders,” he said.

Ramachandaran alsoassailed the Jammu and Kashmir Reorganisation Act 2019 and said that the lawcould not have been passed during the President’s Rule.

He contended thatunder President’s rule they could not reorganise the state and could notdiminish a state to the status of two Union Territories.

He added the stateof Andhra Pradesh was reorganised and two states were carved out of it andsimilarly it was done for other states where a state was carved out from abigger state.

“But, we cannotdiminish the status of a State into a Union Territory. That’s against theprinciples of federalism and that too under the President’s rule,” thesenior lawyer said.

The bench, whilesummarising the arguments of Ramachandaran, said that according to himParliament cannot diminish the character of a state and carve out two new UnionTerritories but can carve out a new Union Territory from a State.

The hearing wouldcontinue on Thursday.

On Tuesday,Ramachandaran had argued that the Centre’s decision to abrogate provisions ofArticle 370 was “unconstitutional” since people of Jammu and Kashmirwere “bypassed” and any proposal for altering the constitutionalstatus of the erstwhile state should emanate from the citizens there.

A number ofpetitions have been filed in the matter including that of private individuals,lawyers, activists and political parties and they have also challenged theJammu and Kashmir Reorganisation Act 2019, which split J&K into two unionterritories — Jammu & Kashmir and Ladakh.

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