A Governor acting as an agent of the President during the latter’s rule has very little residual powers and they would not include the power to give concurrence to a Constitutional change, petitioners challenging the Centre’s decision to make changes to Article 370 of the Constitution – which granted special status to Jammu and Kashmir – and re-organise the state into two Union Territories, told the Supreme Court on Wednesday.
“Whatever be the power of the Governor otherwise, certainly the power of concurrence for a Constitutional change cannot be part of any other capacity of a Governor, who does not have a council of ministers to aid and advise him during President’s rule,” Senior Advocate Raju Ramachandran, appearing for former IAS officer Shah Faesal and activist Shehla Rashid, told a five-judge Constitution bench headed by Justice N V Ramana.
“If the powers of the Governor are assumed by the President and delegated to the Governor, then the residue of powers (with the Governor) in this interregnum is very limited,” he told the bench, also comprising Justices S K Kaul, R Subhash Reddy, B R Gavai and Surya Kant.
Challenging the concurrence given by the then J&K Governor Satya Pal Malik to effect changes, the senior counsel said the Governor during this period is only an agent of the President and his “concurrence is undemocratic for want of public reason”.
Ramachandran contended that the purpose of Article 356 is to maintain the Constitution.
“As far as J&K is concerned, it is to protect the Constitution of both India and J&K”, he said and added that the emergency powers under Article 356, which is an emergency provision to take care of a temporary situation, cannot be used to usurp the powers of the state legislature and make an irreversible change.
The exercise of the power under Article 356 is reversible and the President or Governor cannot do something irreversible under this, he said adding that in the present case, it is irreversible. ” The state itself has ceased to exist. Now, only the court can reverse it,” he said.
The bench however, did not seem convinced. “It can’t be. He is empowered as Governor and to act on President’s behalf,” observed Justice Ramana.
Justice Gavai added “in fact, proclamation says he will act as Governor and representative of President”.
Ramachandran added that “if he has dual capacity, he can exercise both. But in a President’s rule situation and proclamation empowering the Governor, the other capacity of the Governor is kept in abeyance”.
The counsel said that in the case of J&K, a basic structure doctrine would also apply as the decision was unilateral and hence a violation of the federal structure. It was undemocratic as it was done through executive action and against the rule of law as there is flagrant bypassing of constitutionally-prescribed procedures, he added.
Justice Surya Kant sought to know who, according to the petitioners, would be the competent authority to reconstitute the Assembly of the state.
Ramachandran replied saying, “ultimately that question can only be answered if there is a democratic route involving people of J&K” and added “this unilateralism can’t be the Constitutionally allowed solution… Any acceptable decision must involve the voice of the people. The Population have a say”.
The counsel also questioned the passage of the Bill reconstituting J&K in the Parliament in just two days saying this did not give sufficient time for discussions.
To this, Justice Kaul asked “are you assailing the manner of conducting proceedings in Parliament? I don’t think you can do that”.
Ramachandran said “these constitutional changes have hapenned in the space of two days. August 5 and 6. That there were restrictions in place is an objective fact… In this limited period of time, there was no occasion for the public of J&K to express their views on a change of Constitutional stance”.
Justice Kaul referred to the written submissions of the petitioners which termed the “nature of the proceedings in Parliament” as “perfunctory” and wondered whether the court can go into the procedures.
The counsel replied that if it’s not merely an irregularity in Parliamentary procedure, but one involving an irregularity in the prescribed Constitutional procedure, then the court can go into it.
On Tuesday, Attorney General K K Venugopal, appearing for the Centre, had questioned Ramachandran’s contention that the Bill was passed without the members seeing it and said his own petition stated to the contrary.
Clarifying this, Ramachandran said on Wednesday he was only speaking of the “statutory resolution approving the Bill re-organising the state being passed in the Lok Sabha, without the Bill being before the members”. He added that this was also borne out by proceedings of the House