New Delhi: 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, one of the petitioners said in the Supreme Court on Tuesday.
A 5-judge Constitution bench headed by Justice N V Ramana, which commenced hearing on batch of pleas challenging the constitutional validity of the Centre's decision, was told by the petitioner that it was violative of the Constitution as orders were passed in "disregard of consent" of people of J&K.
Provisions of Article 370, which gave special status to the erstwhile state of Jammu and Kashmir, was abrogated by the Centre on August 5.
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.
Senior advocate Raju Ramachandran, appearing for bureaucrat-turned-politician Shah Faesal, Shehla Rashid and other petitioners, said that Jammu and Kashmir was under President's Rule from December 19, 2018 till October 31 this year and "will of the people" was not there in the concurrence given by state for abrogation of provisions of Article 370.
He told the bench, also comprising justices S K Kaul, R Subhash Reddy, B R Gavai and Surya Kant, that powers of the President and Parliament during period of proclamation under Article 356 is in its very nature "temporary" and it cannot be used to bring "irreversible" constitutional changes.
"The record indicates that neither the President nor the Governor held any consultations on the issue either with the public at large or with members of the legislative council," Ramachandran said in his outline of submissions which was handed over to the bench.
"The concurrence ought to be set aside for violating Article 14 of the Constitution for non-consideration of relevant factors and for not giving a hearing to affected parties - including the people of Jammu and Kashmir," he said.
Ramachandran said, "The will of the people finds no expression in the concurrence of the government of the State provided by the Governor, who is merely substituting for a popularly elected government as an emergency measure under Article 356 of the Constitution."
Referring to Constitutional provisions, he said law made by Parliament for a state which is under President's rule is "reversible" if the elected government later finds it to be bad and it can be repealed by subsequent law.
"The Constitutional order (abrogating provision of Article 370) was unconstitutional as it bypassed the people of Jammu and Kashmir," he said.
He said the Reorganisation Act 2019, is "manifestly ultra vires" the Constitution of Jammu and Kashmir "which not only recognises and mandates the status of Jammu and Kashmir as a state but also defines its territory under Article 4".
Regarding the concurrence given by the state, he said Governor is the representative of Union and his concurrence would not represent will of the people.
"The strength of sovereignty lies with the people," he said, adding, "Moreover, the recommendation made by Parliament on behalf of the Constituent Assembly of the state (and by implication, Legislative Assembly of the state) is undemocratic not only for want of will of the people of the state but also undemocratic for want of public reason."
He argued that when a legislative process is "rushed through" in such a manner, can there be presumption of constitutionality attached with it.
"The haste and the perfunctory nature of the proceedings in Parliament of a change of this nature clearly violate the principle of deliberative democracy," he said.
Attorney General K K Venugopal, appearing for the Centre, told the apex court that Ramachandran has made an "incorrect statement" by saying that the reorganisation Bill was not shown to any member of the Lok Sabha and was circulated only after its introduction.
"He says that copy of the bill was not shown to members of the Lok Sabha. He cannot make an incorrect statement like this," Venugopal said.
However, Ramachandran said he would clarify on this on Wednesday when the bench would hear further arguments in the matter.
At the outset, Ramachandran said he would first refer to the instrument of accession followed by the Constitution of India, and its application to J&K and Constitution of Jammu and Kashmir.
Later in his arguments, he referred to the historical background of how Kashmir came into being and also told the bench about how various princely states were assimilated into India through instruments of accession.
"My brother (Justice S K Kaul) has a family tree going back by 500 years. It is interesting," said Justice Ramana.
Ramachandran said that in India, a state has never been reorganised while it was under President's rule except once when the states of Punjab and Haryana were created.
Regarding the Reorganisation Act 2019, he said it was in violation of the Constitutional provision as "the character of a state cannot be extinguished in its entirety in to two union territories."
"If the impugned Constitution orders and impugned Act are upheld, India can be reduced to a 'Union of Union Territories' merely by parliamentary legislations, which is neither permitted by the text nor the spirit of the Constitution," he said in his submissions.