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IN THE SUPREME COURT OF INDIA
CIVIL WRIT JURISDICTION
W.P. (C) 1099 OF 2019
IN THE MATTER OF:
Dr. SHAH FAESAL & ORS. …PETITIONERS
Vs
UNION OF INDIA & ANR …RESPONDENTS

OUTLINE OF SUBMISSIONS ON BEHALF OF THE PETITIONERS BY RAJU

RAMACHANDRAN, SENIOR ADVOCATE1

IMPUGNED STATE ACTIONS:

1. Para (c)(ii) of the Proclamation of President’s Rule in the State of Jammu

and Kashmir vide. GSR 1223(E) dated 19.12.2018, and extended for a

further period with effect from 03.07.2019. (Vol.3, p.487)

2. Concurrence given by the Respondent No.2 State enabling the President of

India to issue Constitution of India (Application to the State of Jammu and

Kashmir), Order 2019, numbered C.O. 272, dt. 05.08.2019. (Concurrence

not available in the public domain)

3. Constitution of India (Application to the State of Jammu and Kashmir),

Order 2019 numbered C.O. No. 272, dated 05.08.2019. (Vol. 3, p. 494)

4. Declaration Under Article 370(3) Of the Constitution numbered C.O. No.

273 dated 06.08.2019. (Vol. 3, p. 496)-

5. The Jammu and Kashmir Reorganisation Act, 2019 (Act No. 34 of 2019)

which received the assent of the President on 09.08.2019. (Vol.3, p.505)

CASE IN A NUTSHELL:

Whether the Union Government, using the temporary cover of the President’s Rule

can:

firstly, effect a fundamental, permanent and irreversible alteration in the

federal structure without any participation by the elected representatives of

the concerned state, or for that matter, the participation of any of the

institutions of that state duly established under the law; and

1
Tendered on 10.12.2109. Assisted by Mr.Aakarsh Kamra, AOR; Mr. Shankar Narayanan, Mr.
Prasanna S, Mr. Shadan Farasat, Ms. Malavika Prasad, Mr.Gautam Bhatia, Ms. Jahnavi Sindhu, Ms.
Shruti Narayanan – Advocates.
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secondly, in the case of the state of Jammu and Kashmir, could it do so in a

manner violating the constitutionally prescribed procedure for bringing

about any change to Article 370?

I. Constitutional Order 272 (hereinafter ‘C.O. 272’), Constitutional Order.

273 (hereinafter ‘C.O.273’), and the Jammu and Kashmir

Reorganisation Act, 2019 (hereinafter, “Impugned Act” or

“Reorganisation Act”) are unconstitutional for impermissible use of

powers under Article 356

1. The power of the President and Parliament during the period when a

proclamation under Article 356 is in force is in its very nature temporary

and restorative in character. The Constitution has conferred this power

on the President in order to remedy a situation where the Government

of a state cannot be carried on in accordance with the provisions of the

Constitution. The object of the exercise of power under this Article can

only be to ensure that a situation obtains again where constitutional

government is possible in the state.

2. Various provisions of the Constitution point to the temporary nature of

the powers conferred by the Emergency Provisions in Part XVIII of the

Constitution. For instance, Articles 357 (2) makes it clear that legislative

changes made in exercise of powers of the legislature of the state by

Parliament is reversible by the competent state legislature. Similarly,

Article 250 (2) states that laws made by Parliament on matters in a state

list during an Emergency shall cease to have effect after six months

after the proclamation ceases to operate. The power under Article 356,

therefore, cannot be used to bring about irreversible constitutional

changes.

3. Article 356 of the Constitution, even though it contemplates transfer of

legislative and executive powers of the State to Parliament and the

President respectively, does not contemplate the transfer of any

constituent power. The nature of constituent power is such that it is

incapable of being transferred unless the Constitution of Jammu &

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Kashmir provided a mechanism under which such power could be

transferred thus. The President does not acquire the constituent powers

of the Government of the State of Jammu & Kashmir under Article

370(I)(d), to give concurrence to a modification of the Constitution as

applied to the State. Hence such power to give concurrence cannot be

exercised by the Governor either, as he is merely a delegate of the

President in the State, under President’s Rule.

4. Likewise, Parliament under Article 356 does not acquire the constituent
power of the legislative assembly of the State of Jammu & Kashmir

under Article 370(3) to recommend a presidential notification, (assuming

but not conceding the validity of Impugned Order C.O. 272 redefining

“constituent assembly” to mean “legislative assembly”). Consequently,

the resolutions passed by both Houses of Parliament, recommending

the issue of an Article 370(3) presidential notification, purportedly in

exercise of powers that vest in the “legislative assembly” of the State of

Jammu & Kashmir is invalid and non est. in the eyes of law.

5. In any event, the President under Article 356 as applied to the State

under the 1954 Order, must act to run the Government in the State in

accordance with the provisions of the Constitution of India and the

“Constitution of Jammu & Kashmir” and thus cannot abrogate the latter

during President’s Rule.

6. The Reorganisation Act, 2019 is manifestly ultra vires the Constitution

of Jammu & Kashmir, which not only recognises and mandates the

status of Jammu and Kashmir as a “State” but also defines its territory

under Article 4.

II. C.O. 272 and C.O.273 are unconstitutional for being passed in

disregard of the consent of the people of Jammu & Kashmir, as

expressed through their chosen form of government – a popularly

elected, republican form of government.

1. Absence of concurrence of the State Government: The State of

Jammu & Kashmir was under the President’s Rule under Article 356 of

the Constitution of India (as applied under the 1954 Order) from
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19.12.2018 till 31.10 2019 and all decisions were taken by the

Governor, who is a delegate of the President.

2. Therefore, 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. Without an Article 356

proclamation in operation, such concurrence could have been provided

only pursuant to aid and advice of the Council of Ministers of a

government that is popularly elected.

3. Absent that, the concurrence is invalid and liable to be set aside, for

want of due process. The purported concurrence of the Government of

the State of Jammu and Kashmir is not the concurrence contemplated

by Article 370 (1), but the concurrence of an agent or delegate under

Article 356 of the President giving his consent.

4. The concurrence is not only undemocratic for want of public will, but

also undemocratic for want of public reason. 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. 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.

5. C.O. 273 is similarly undemocratic for want of a “recommendation” from

a representative body competent to issue such recommendation under

Article 370(3).

III. C.O. 272 is ultra vires Article 370:

1. The impugned order issued under Article 370(I)(d) attempts to modify

the text of Article 370(3) as applied to the State of Jammu & Kashmir

(via Article 367(4) by stipulating that “Constituent Assembly” shall mean

“Legislative Assembly” in Article 370. This is unconstitutional because –

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2. Article 370(I)(c) mandates that Article 370 (and Article I) shall apply to
Jammu & Kashmir by virtue of the text itself, and that only “other”

provisions can be modified and applied under Article 370(I)(d).

3. Article 367 of the Constitution of India defines the manner of

interpretation of provisions of the Constitution of India, and thus can be

used to modify merely the interpretation of constitutional provisions

generally, when applied to the State of Jammu & Kashmir. However,

C.O. 272 goes much beyond merely modifying the interpretation

provision. Insofar as it seeks to alter the substantive nature of the

power under Article 370(3) to recommend a presidential notification. In

effect, C.O. 272 vests power of a certain kind, only exercisable by one

body, and under Article 370 alone, in a wholly different body that lacks

the competence to exercise such powers.

4. The creation of a new substantive power in the hands of the legislative

assembly in supersession of the 1954 Order and the full application of

the Constitution of India to Jammu & Kashmir, and the consequent

abrogation of the Constitution of Jammu & Kashmir, would only be

possible under C.O. 272 if Article 370(I)(d)’s power to modify and apply

provisions was a constituent power. However, the President’s power

under Art. 370(I)(d) is not a “constituent power” but is merely a power to

“apply” provisions with “modifications and exceptions” under Article

370(I)(d) and is hence inherently a limited power.

IV. C.O. 273 is ultra vires Article 370:

1. A presidential notification such as C.O. 273 can be issued only if the

proposal for the cessation of Article 370 emanates from the State’s

Constituent Assembly (or its successor in law, if any). The Jammu &

Kashmir Constituent Assembly does not exist at the current time and

thus could not have made a recommendation to that effect.

Furthermore, no recommendation was made by any legislative body in

exercise of its constituent power in Jammu & Kashmir that Article 370

shall cease to have effect. The state of Jammu & Kashmir not having
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validly initiated the process of abrogation of Article 370 (which, absent a

mechanism to do so under the Constitution of Jammu & Kashmir could

have been provided in the future by a suitable amendment made to the

Constitution of Jammu & Kashmir the Union of India could not have

initiated any process of substantive change under Article 370(3) either.

2. The power to “recommend” cessation of operation of the Article 370 or

to modify Article 370 under Article 370(3) is exclusively with the

Constituent Assembly of the State of Jammu and Kashmir. Even if one

were to assume that C.O. 272 is valid to the extent that the Constituent

Assembly stood substituted by the legislative assembly, this power

cannot be transferred to the President under Article 356. Even the text

of the proclamation dt. 19.12.2018, by the use of the phrase “unless the

context otherwise requires”, clearly contemplates certain powers and

functions of the legislature which are beyond transfer under Article 356.

3. This power to recommend such alteration in the relationship of the State

with the Union is in the nature of constituent power which is both

expressly limited (under Section 147 of the Jammu and Kashmir

Constitution), and impliedly limited (under the principles of democracy

and federalism and the text of the proclamation).

4. 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. The

haste and the perfunctory nature of the proceedings in Parliament of a

change of this nature clearly violate the principle of deliberative

democracy. Given the lockdown and prohibitory orders in place in the

state from the previous days, it could not have been possible for the

people to either express their views on the matter in public, enabling the

Members of Parliament to reflect on deliberate on them, nor reach out

to their representatives in Parliament for appropriate deliberations.

V. Para (c)(ii) of The Presidential proclamation dt. 19.12.2018 is

Unconstitutional for being violative of the principle of Federalism:

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1. The Impugned proclamation is unconstitutional to the extent that it

suspends the proviso to Article 3 of the Constitution, which is a

necessary safeguard protecting federalism and democracy which are

basic features of the Constitution.

2. The device of President’s Rule, which by its very nature is meant to be

a temporary provision until the restoration of the elected government of

the state, cannot be used to irreversibly and permanently alter the

character of the state.

3. President’s Rule represents a temporary suspension of the federal

structure vis-à-vis the centre and the affected federal unit. During that

time, therefore, the centre’s actions must be oriented towards the

eventual restoration of the federal unit. Federalism, therefore, places

an implied limitation upon the powers of the President during

President’s Rule, namely, a limitation upon the President’s power to

change the status of the federal unit itself.

VI. The Jammu & Kashmir Reorganisation Act 2019 violates Article 3 of

the Constitution of India :

1. The Impugned Act is clearly in violation of Article 3 of the Constitution,

as the character of a state cannot be extinguished in its entirety in to

two union territories.

2. There is no precedent in our constitutional history, after the concept of

Union Territories was introduced in the Seventh Amendment to the

Constitution of India, in which a State was completely extinguished, and

reduced only to Union Territories.

3. To do so impinges on the federal character of the constitution because

Article 3 limits the extent to which the federal nature of the union can be

reduced. While states can be carved out from existing states, like

Telangana was carve out from Andhra Pradesh, states cannot be

entirely reduced into UTs as sought to be done under the impugned Act.
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4. Article 2 in contrast, confers an almost unlimited power on the

Parliament to create new states, as the creation of new states, by

further federating the union, advances federalism.

5. 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.

6. The terms of entry of Jammu & Kashmir into the Indian Union,

recognised in the 1954 Order accord protection to the territorial integrity

of Jammu & Kashmir by making the powers of by Parliament, under

Article 3 of the Indian Constitution, contingent on the consent by the

state’s legislature.

7. Thus, the extent of the State of Jammu & Kashmir can only be changed
subject to strict federal and democratic guarantees – to the extent that

Jammu & Kashmir’s legislature and Constituent Assembly earmarked

“empty” seats for absent representatives of the will of the people

residing in those regions of the State not under India’s control. The

breakup of Jammu and Kashmir is a violation of this recognition.

8. The proviso to Article 3 provides that “no bill for the purpose of …. shall
be introduced in either house of Parliament…unless.. the Bill has been

referred by the President to the Legislature of that State for expressing

its views thereon within such period as may be specified in the

reference or within such time further period as the President may allow

and the period so specified or allowed has expired.” In the present case,

the Bill was introduced in Parliament before both houses had completed

voting upon the Statutory Resolution purportedly moved in respect of

obtaining the views of both houses of Parliament (exercising powers of

the State Legislature).

9. The perfunctory nature of deliberations in Parliament violates principle

of deliberative democracy. Therefore, the Reorganisation Act ought not

to be considered as having the backing of the “wisdom” of Parliament

and no presumption of constitutionality ought to attach thereto.

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VII. All the Impugned Orders, the Impugned Act and the Impugned actions

violate the basic structure of India’s Constitution

1. The Impugned Orders and the Act violate the principles of federalism,

democracy and the Rule of Law – each of which forms part of the basic

structure of the Indian Constitution.

2. They effect a complete and a wholesale supersession of the

Constitution of Jammu & Kashmir even to the extent of Jammu &

Kashmir ceasing to be State, as demonstrated by the passage of the

Jammu & Kashmir Reorganization Act, 2019 in Parliament. The series

of actions are therefore in clear violation of this right to autonomy of the

State that inhere in its residents under Part III and destructive of the

basic structure of the Constitution of India as applied to the State of

Jammu & Kashmir and are therefore liable to be held to be void and

inoperative under Article 13, by this Hon’ble Court.

3. It is pertinent to point out that the State of Jammu and Kashmir acceded
to India and has been an integral part of India since the accession. This

was also affirmed by the Constituent Assembly of Jammu and Kashmir

in the Jammu and Kashmir Constitution which in Article 3 declares that

State of Jammu and Kashmir is an integral part of India. In altering the

constitutional relationship of a State with the Union, every principle of

constitutionalism has to be scrupulously followed and this Hon’ble Court

is being approached to enforce the letter and spirit of the relevant

constitutional provisions strictly.

TENDERED ON: 10.12.2019