A democracy functions with the aid of the will of the people. Decisions which do not take the people’s voice into consideration are decisions which should not be taken.
The Article states that the recommendation of the Constituent Assembly must be taken. In case there is no Constituent Assembly, it is understandable that the Stage Legislature will take its place. But, under no circumstances can the President usurp that power. The right to abrogate Art. 370 only lies with the Constituent Assembly.
J. Kant - Is there any authority which can replace the Constituent Assembly ?
RR - My current duty is to show that the route taken was unconstitutional. The will of the people is absent. The voice of the people is absent. This is not a sovereign decision. Can you call this the right method ? Is it right to mute the people ?
Article 370(1)(d) clearly states that the Government of the State has to be consulted when subjects outside the Instrument of Accession are applicable to the State. The President’s power under this provision is not a constituent power. It is merely limited “exceptions and modifications”.
Bench reassembled
Raju Ramachandran: This is a flagrant attack on the basic structure. Rule of law, federalism and democracy have been struck with COs 272 and 273.
Lunch-break
The issue applies squarely to CO 273 which amended Art. 370 and ended J&K’s special status. CO 272 was for the application of Constitution of India to J&K.
This route of a temporary phase of President's Rule cannot be used to bring about an irreversible change in the nature of relation between the State and the Union. It is completely against the Constitutional ethos.
J. Ramana - But, the Governor does not lose his powers under the President’s Rule. Why should he not do this.
RR - Because he no longer represents the will of the people. He does lose this power.
J. Reddy - If the Governor is the agent of the President, would he not have to act in concurrence to the President’s orders ?
RR - Indeed. Which is why he could have not given concurrence to CO 272 which allowed for the application of Constitution of India to J&K.
The Proclamation of President’s Rule on 19.12.2018 states that the President had assumed the powers which were exercisable by the Governor of J&K. So, the President gave concurrence to himself ?