[Article 370] [Day-2] Concurrence Cannot Be From The Governor Who Doesn't Have The Aid And Advice of Council of Ministers: Raju Ramachandran

On the Second Day of hearing of petitions challenging abrogation of Article 370 of the Constitution of India, Senior Advocate Raju Ramachandran continued his submissions before the Constitution Bench.

"Even if the Presidential Proclamation passes the threshold test of an extra-ordinary situation in the state, the exercise of power by the Parliament subsequently or by the governor to give concurrence for a constitutional change under 370(3) stands out...the purpose of President's Rule is only to remedy that situation, not to lead to an irreversible change", said Raju Ramachandran for petitioner-activist Shehla Rashid.

"Are the Parliament's powers in any manner curtailed? Power is what is relevant to the issue...The Parliament cannot exercise all powers of the state assembly. Only that which is necessary for taking interim measures", observed Justice S . K. Kaul.

"As per democratic principles, the power rests with the House of the Sate. It is only the situation that has arisen that has to be taken care of, not 370 or bifurcation of the state", added Justice N. V. Ramana.

"Power cannot taken over under the guise of an emergency situation to meet a temporary breakdown...You are preserving the Constitution of J & K and also doing  away with it at the same time!", Senior Counsel asserted.

He submitted that that facts of the present case crossed the high threshold set in the S. R. Bommai decision.

"Bommai doesn't deal with the misuse after President's Rule, with the governor?", noted Justice Ramana.

"The J & K Constitution also has an oath for the governor to preserve and protect it. 356 is invoked to ensure governance in accordance with 2 constitutions! To do away with one of them is not preservation by any standards!", stressed Mr. Ramachandran.

"The power to be exercised in the interregnum is a limited power and not one to do everything the state can do. Is this your argument? You are importing observations regarding the threshold (for the imposition of President's Rule) to apply to the subsequent exercise of power?", Justice Kaul sought to clarify.

"Both the invocation and the exercise of power have a bearing on federalism. Just meeting the threshold as in Bommai is not carte blanche to anything later!...Here, we didn't even have to wait for many years! There are immediate effects of irreversibly altering a previously independent state, which was acceded to the Union of India and given constitutional protection, without even following the particular mechanism!", emphasised the Senior Advocate.

He drew the bench's attention to the Presidential Proclamation of December 19, 2018, which directed that all the functions of the government of the state of J & K and all the powers vested in the Governor of that state under the Indian Constitution and the J & K Constitution or under any law in force in that state, which have been assumed by the President by virtue of the said Proclamation, shall be exercisable also by the Governor of the said state.

"Apart from the constitutional head of the state, the governor also acts as the delegate of the President!", he advanced.

"370(1) says 'concurrence', which is normally the concurrence of the state expressed through an elected government. Now it is being used by the governor purely as the delegate of the President. There is no Council of Ministers to aid and advice him and he is giving concurrence for a knee-jerk constitutional change!"

"So he is not an independent person in exercising the power of the J & K government? He is acting as the agent of the President? Can a governor not act in two capacities- as a governor, and as a person authorised by the President?", the bench inquired.

"The dual capacity question does not exist as there is no Council of Ministers! The governor has assumed all the powers of the elected state government! Can an agent of the President give consent on behalf of the state during a period when he is only an agent and not the constitutional head of the state?", responded Mr. Ramachandran.

"Can you say he doesn't have the power? I am finding it difficult to understand this challenge to the power itself... You may say that he have all the powers of the state government but in this situation he may not usurp the role of a democratic elected body. You are trying to give the governor a truncated power in the interregnum...", reflected Justice Kaul.

"Would this be the case for all aspects on which the Council of Ministers is needed to be heard or is this a special situation?", continued the judge.

"Whatever the power of the governor otherwise, the power of concurrence on a constitutional change cannot be part of any capacity of the governor who doesn't have the aid and advice of the Council of Ministers", responded Mr. Ramachandran.

"Who will excise this power then? 'Concurrence' part is relatable to the functions of the government of the state of J & K...", mused the bench.

"It cannot be exercised during this period!", repeated the Senior Advocate.

Reading from the Proclamation, he quoted "I assume to myself as President of India all the functions of the Government of the said State and all powers vested in or exercisable by the Governor of that State under the Constitution and the State Constitution".

"If the governor's functions under the Union Constitution and the constitution of J & K are assumed by the President and then delegated to the governor, the residual powers in this interregnum are very, very limited", suggested the Senior Counsel.

"The will of the people of J & K doesn't find expression in the concurrence of the government supplied by the governor. We pray for the concurrence to be set aside for the want of due process...this is not the concurrence envisaged under 370(1). There is no consultation with the public at large or with Members of the Legislative Council"

"C. O. 273 is undemocratic for the want of recommendation from a representative body competent to make the recommendation under 370(3)...370(3) envisages a recommendation from the people of Kashmir through their Constituent Assembly! Here, it has been said that the Constituent Assembly is equal to the legislative assembly (in C. O. 272). And by virtue of 356, the legislative assembly is equal to the Parliament!"

"The agent or the delegate of the President is giving consent back to the President to bring about not a mere nomenclature change but a substantive change, where a constituent body becomes a legislative body, to effect a constitutional change! The concurrence should be that of the people of J & K speaking through their representative government...370(3) is used to apply the 367 interpretation route to actually amend 370!", argued Mr. Ramachandran.

"Creation of a new Constituent power in the legislative assembly in suppression of the Order of 1954 would only be possible under C. O. 272 if the power under 370 was a constituent power. But the President's power under 370(1)(d) is not a constituent power but only the power to apply constitutional provisions with some exceptions and modifications!", he pressed.

"C. O. 273 can be issued only if the proposal for the cessation of 370 emanates from the state constituent assembly or its successor in law. The J & K Constituent Assembly doesn't exist as of today so the recommendation could not have been made. A recommendation that 370 would cease to exist could not been made by any legislative body in exercise of the constituent power!"

"if there is no Constituent Assembly, then who would do so? Who is the competent authority to substitute the Constituent Assembly?", the bench wanted to know.

"For the petitioners, the burden is only to show that the current route is the wrong constitutional route. For this impasse, this deadlock, the solution is to be devised by the J & K state government in accordance with democratic principles...370(3) anticipates no role for the Parliament and left it to the Constituent Assembly to decide whether 370 would continue or be abrogated.", answered Mr. Ramachandran.

"The ruler was replaced by the Rajpramukh who was substituted by the governor. So would the legislative body be a valid substitute for the constituent body?", the bench inquired.

"The ultimate sovereign is the people of J & K. So any acceptable solution must involve the voice of the people of J & K", said the Senior Counsel.

"Would it be case of referendum? Consultation?", asked the bench.

"It has never been a matter of any public debate, discourse or participation that we don't want to lose the character of a state and become two UTs...during 356, there are no representative institutions. The legislative council is there but the assembly stands dissolved. Where was the public element?, contended Mr. Ramachandran.

He cited former Chief Justice A. S. Anand on the nature of Article 370- "The temporary nature arises merely because the power to finalise the constitutional relationship between the state and the Union of India had been specifically vested in the Jammu and Kashmir Constituent Assembly". Therefore, the 'temporary' provision does not mean that the Article is capable of being abrogated, modified or replaced unilaterally.

"From a state, a part can be carved out as a UT, like Ladakh, but you cannot take away the distinguishing aspect of the state and make it a UT?

Suppose it was bifurcated into Jammu as a state and Kashmir as a state, then?", Justice Kaul questioned.

Mr. Ramachandran affirmed that bifurcation into two states would not been an issue if their character not changed into that of a UT.