New Delhi: Nearly four months after petitions challenging the scrapping of Articles 370 and Article 35A of the Constitution as well as the bifurcation of Jammu and Kashmir into two Union territories were filed in the Supreme Court, a five-judge Constitution bench of the apex court was told on Tuesday that during the President’s rule, the Centre could not have taken irreversible decisions, including reorganising J&K into two Union Territories.

Addressing the five-judge bench comprising Justice N.V. Ramana, Justice Sanjay Kishan Kaul, Justice R. Subhash Reddy, Justice B.R. Gavai and Justice Surya Kant, senior counsel Raju Ramachandaran said that during the “temporary President’s rule”, Parliament can’t exercise the constituent powers of popularly elected state legislature and take steps that are irreversible.  

The question to be addressed is whether the Centre, using the “temporary powers of President's rule, could firstly affect a fundamental, permanent and irreversible alteration in the federal structure without any participation by the elected representatives of the concerned state,” he added.

“Parliament can’t make laws or create situations, as has been done by bifurcating the state into two UTs, which is irreversible,” Mr Ramachandaran told the court, with Justice Kaul summing it up saying, “You mean that the Central government acting on behalf of the President can’t go beyond the what state legislature can do”.

Article 370 granted special status to J&K, and Article 35A empowered the J&K Assembly to make special laws for people of the state.

Taking the court through Clause 2 of Article 357 of the Constitution, which says that the state legislature, upon being restored at the end of President’s rule, can alter or repeal any action taken during President’s rule, Mr Ramachandaran, appearing for Shah Faesal, a former bureaucrat and head of the Jammu & Kashmir Peoples’ Movement, said that what has happened in the case of J&K, including its reorganisation, is irreversible.

Clause 2 of Article 357 of the constitution states, “Any law made in exercise of the power of the Legislature of the State by Parliament or the President or other authority referred to in sub-clause (a) of clause (1) which Parliament or the President or such other authority would not, but for the issue of a Proclamation under Article 356, have been competent to make shall, after the Proclamation has ceased to operate, continue in force until altered or repealed or amended by a competent Legislature or other authority.

Taking the court through the history of J&K’s accession to India, Mr Ramachandran told the Constitution bench that there are things which the Centre could alter in J&K, but only with the concurrence of the popularly elected state Assembly representing the will of the people, and that includes Article 370, Article 35A and the reorganisation of the state.

Questioning Parliament changing or altering the nature of relationship between J&K and the Union of India (scaling down J&K from a state to two Union Territories of J&K and Ladakh), Mr Ramachandaran said that Parliament cannot take over the constituent powers of the J&K Assembly and do something which the state assembly can’t do.

At the outset of the hearing, attorney general K.K. Venugopal told the court that they have already submitted convenience compilations of 2,000 pages running into 10 volumes with each volume having 200 pages. The A-G added that they would be submitting another 15 volumes running into 3,600 pages.

This prompted Justice Kaul to say that they had sought “convenient compilation” and not “inconvenient compilation”.

There was, however, no consensus on a suggestion by the bench on senior lawyers on both the sides identifying the broad issues and dividing them between themselves so that there is no repetition of arguments.

It was contended by the lawyers that they were appearing for different parties and were instructed by their clients on how to advance their case before the court. There was no agreement on the list of dates as Mr Ramachandaran submitted a list of dates of the events running into 33 pages.

At this Justice Gavai observed that the only thing left in the list of dates submitted by Mr Ramachandran was how Kashmir was named Kashmir.  

Mr Ramachandaran will continue his arguments on Wednesday.