The Supreme Court raised a query Wednesday as to who could be the competent authority to reconstitute the Jammu and Kashmir Constituent Assembly to take a call on altering the special status of the erstwhile state under Article 370 of the Constitution.
The top court, which was hearing a batch of petitions challenging the abrogation of the provisions of Article 370, also raised the point that if the decision rested with people then will it be a case of "referendum, concurrence or consultation".
The petitioners referred to the constitutional provision and said that only the Constituent Assembly, which represents the will of the people, is empowered to make recommendation to the President on any changes in the special status of Jammu and Kashmir.
Provisions of Article 370, which gave special status to the erstwhile state of Jammu and Kashmir, was abrogated by the Centre on August 5.
"Who could be the competent authority to reconstitute the Jammu and Kashmir Constituent Assembly (to decide on special status of J&K)?," a 5-judge constitution bench, headed by Justices N V Ramana, asked senior advocate Raju Ramachandaran, appearing for bureaucrat-turned-politician Shah Faesal, Shehla Rashid and other petitioners.
Ramachandaran replied that Article 370 gave people of Jammu and Kashmir the right to choose and the ultimate decision should have rested with them.
"If that is the case then will it be a case of referendum, concurrence or consultation?," a bench, also comprising Justices Sanjay Kishan Kaul, R Subhash Reddy, B R Gavai and Surya Kant, asked.
Ramachandaran said that President could have only abrogated provisions of Article 370 only on recommendation of the Constituent assembly, which represented the will of the people of the state.
"Article 370 of the Constitution left it to the Constituent assembly to decide whether it wants the special status provision to be continued or abrogated," he said, adding that the Article states the recommendation of the Constituent Assembly must be taken.
"When there is no Constituent Assembly, then it is understandable that a state legislature will take its place. Under no circumstances the President can usurp the power of Constituent Assembly," Ramachandaran said, adding that Centre could not have abrogated the constitutional provision.
He said the two presidential orders issued with regard to abrogation of Article 370 have completely flouted the tenets of basic structure of the Constitution of India.
"This was a flagrant attack on the basic structure of the Constitution. Rule of law, federalism and democracy have been struck with the two presidential order," he said.
The senior lawyer said that this route of a temporary phase of President's rule which was imposed in the state from December 19, 2018 till October 31, 2019 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," he added.
The bench then questioned that if governor does not lose his power under the President's rule, then why can't he recommend for abrogation of Article 370.
Ramachandaran replied that the governor, under President's rule, does not represent the will of the people.
The top court asked if the Governor is the agent of the President, then would he not have to act in concurrence to the President's orders.
The senior lawyer said that is why he could not have given concurrence to the Presidential order's passed with regard to the abrogation of Article 370.
"The proclamation of President's rule on December 19, 2018 states that the President had assumed the powers which were exercisable by the Governor of Jammu and Kashmir. So, the President gave concurrence to himself?," he said, adding that the temporary nature of the provision of Article 370 does not demand that it is capable of being abrogated, modified or replaced unilaterally.
Ramachandaran also assailed the Jammu and Kashmir Reorganisation Act 2019 and said that the law could not have been passed during the President's Rule.
He contended that under President's rule they could not reorganise the state and could not diminish a state to the status of two Union Territories.
He added the state of Andhra Pradesh was reorganised and two states were carved out of it and similarly it was done for other states where a state was carved out from a bigger state.
"But, we cannot diminish the status of a State into a Union Territory. That's against the principles of federalism and that too under the President's rule," the senior lawyer said.
The bench, while summarising the arguments of Ramachandaran, said that according to him Parliament cannot diminish the character of a state and carve out two new Union Territories but can carve out a new Union Territory from a State.
The hearing would continue on Thursday.
On Tuesday, Ramachandaran had argued that the Centre's decision to abrogate provisions of Article 370 was "unconstitutional" since people of Jammu and Kashmir were "bypassed" and any proposal for altering the constitutional status of the erstwhile state should emanate from the citizens there.
A number of petitions have been filed in the matter including that of private individuals, lawyers, activists and political parties and they have also challenged the Jammu and Kashmir Reorganisation Act 2019, which splits J&K into two union territories -- Jammu and Kashmir and Ladakh.
