Article 370 Hearing : Live Updates From Supreme Court [Day 7]

Naphade: The purpose of 356 is to restore the State. I am reading from the Bommai judgement.

Naphade: Everything the legislature does is not necessarily law making power.

Naphade: Everyone has argued that 356 is a temporary thing. Article 357, 356- they refer to state legislature's power to make law which is taken by parliament. But this is not that power. The power under the proviso is not a law making power.

Naphade: Ultimate design here is to abolish the state of J&K contrary to the mandate of 355. Therefore your lordships will see that the J&K Reorganization Act is borne in unconstitutionality.

Naphade: Read Articles 355,356,357 concurrently and the only result is that a State as a constitutional entity must survive.

Naphade: Once you accept that there are implied limitations, suspension of any part of the Constitution as a result of 356 must have a rationale nexus with the object that is to be achieved. And the object to be achieved is Article 355.

Naphade: If there is breakdown of machinery, what is the necessity, what is the rational nexus to suspend these provisos? There is an implied limitation on this power. Can you suspend the entire constitution? Because the president has issued a proclamation under 356?

Naphade: The reason is that the governor has already dissolved the assembly, assumed powers of the state. Certainly, governor assuming the power can't be breakdown of state machinery. It is absurd to suggest that. And therefore the president has to step in.

Naphade: It's a jurisdictional issue. 356 has been invoked for a collateral purpose. And that is apparent on the face of the record.

Naphade: The J&K assembly was dissolved in Nov 2018 and the governor assumed the powers under J&K constitution. And 356 proclamation came in Dec 2018. This presidential proclamation is clearly without jurisdiction.

Naphade: What is the effect of the presidential proclamation? What is the purpose of 356? There is breakdown of the machinery, accepted. The affairs of the state cannot be carried out in accordance with Constitution, accepted.

Naphade: But does that justify doing something which is unconstitutional?