J. Ramana - What is it to be done during this period then ? If there’s no CoM.
RR - This cannot be done during this period as it is meant to be temporary.
Art. 356 states that Emergency is imposed on the aid and advice of Council of Ministers. Where is the CoM here ?
RR (Reading out 2006 judgement of Rameshwar Prasad) - The Governor is an instrument of the Executive. Here, the Governor exercised “dual capacity” and gave his concurrence for Orders of the President. This basically means that the President gave concurrence to his own orders.
The basic function of President’s Rule is to uphold Constitutional values in cases of its breakdown. How can it be used to do away with the same ?: Raju Ramachandran
There are three provisions for the proclamation of Emergency. Art. 356, Art. 352 and Art. 360. Out of all these Articles, Art. 356 can only be exercised in exceptional circumstances only.
In SR Bommai, it was stated clearly Centre only has the power to overrule the State in case of exceptions. Exceptions are not the rule. They have changed the federal structure here.
The Court’s intervention in this case is necessary as they have made irreversible changes and have transgressed Constitutional boundaries in broad daylight.
J. Ramana - The question that you’re posing is whether changes of this nature can be made without the concurrence of the State Legislature ?
RR - Indeed.
J. Kaul - Can the Parliament make such changes ?
RR - That is the question precisely. Irreversible changes have been made in the name of security. Proclamation of Art. 356 which was done to counter breakdown of State machinery has been used to do away with Constitution of J&K. That has only made the situation worse.
RR (Reading out B.R. Ambedkar’s comments on the scope of the authority of the President under Art. 356) - There has been a clear transgression of the powers that have been accorded to the President which can be exercised during President’s Rule. It cannot be a wanton, arbitrary and unauthorised act. Art. 356 is for the purpose of maintaining the Constitutional rule. Here, it was for the maintainability of Constitution of India and that of J&K. They have used the proclamation, not for the preservation, but for doing away with the Constitution of J&K.
Luthra: Are you aware of the provision for sexual harassment in IPC?
Wahab: I'm not aware
A plain reading of Article 356 states that it must be utilised when a State cannot function according to the provisions of the Constitution. The landmark judgement of SR Bommai clearly elaborates the need for this provision. “To ensure Constitutional validity in the State”.