Over four decade old Supreme Court judgement is proving to be an irrefutable thorn on the Centre바카라s claim that 바카라breakdown of constitutional machinery바카라 in Jammu and Kashmir led to 5 August 2019.
The Centre had claimed that the 바카라breakdown of constitutional machinery바카라 in J&K led to President바카라s rule under Article 356 in December 2018 and heralded events leading to the abrogation of Article 370 and abolition of the State of Jammu and Kashmir.
바카라A one-page judgment pronounced by a Constitution Bench of the Supreme Court 42 years ago pertains to former Tamil Nadu Chief Minister M. Karunanidhi,바카라 reported The Hindu.
The report stated: 바카라the miniscule verdict, containing just one paragraph, was produced by senior advocate Shekhar Naphade before a five-judge Bench headed by Chief Justice of India (CJI) D.Y. Chandrachud hearing the challenge to the repeal of Article 370 from the Indian Constitution.바카라
바카라The 1971 judgment, in a nutshell, holds that once a Governor dissolves a State바카라s legislative Assembly and assumes powers of the State, there is no question of the President taking over by claiming 바카라failure of constitutional machinery바카라 under Article 356 of the Constitution,바카라 it mentioned.
바카라Naphade, for the petitioner side, said it was 바카라absurd바카라 for the President to claim there was a 바카라breakdown of constitutional machinery바카라 when the reins of the State was with the very Governor he had appointed,바카라 it added.
바카라The Governor is not elected but he is appointed by the President under Article 155, and Article 356 makes provisions in case of failure of constitutional machinery in the State. But when an assembly is dissolved, there is no failure of the constitutional machinery within Article 356,바카라 the Constitution Bench judgment in Thiru K.N. Rajagopal versus M Karunanidhi, authored by Chief Justice S.M. Sikri, on March 17, 1971, held, the report mentioned.
In Jammu and Kashmir (J&K), the Governor, under Section 53(2) of the J&K Constitution, dissolved the State legislative assembly on November 21, 2018.
The proclamation of President바카라s rule under Article 356 was issued a month later, on December 19, 2018.
Parliament approved the proclamation of the President on January 3, 2019. The President바카라s rule was extended in J&K for six months with effect from July 3, 2019.
Under the cover of President바카라s Rule: 바카라On August 5, 2019, the President issued the Constitution (Application to Jammu and Kashmir) Order which inserted a new provision, Article 367(4), in the Indian Constitution. This replaced the expression 바카라Constituent Assembly of the State바카라 in the proviso to Article 370(3) with 바카라Legislative Assembly of the State바카라. The same day saw Parliament abrogate Article 370 and pass the Bill to reorganise the State of Jammu and Kashmir. The next day saw the President declare that Article 370 has ceased to apply,바카라 the report mentioned.
바카라Beneath the apparent constitutionality lay the patent illegality,바카라Naphade said, as per the report.
바카라Once the State Assembly was dissolved, there was no question of machinery having failed. Consequently there cannot be an exercise under Article 356바카라 This Presidential proclamation under Article 356 is clearly without jurisdiction. The reason is the Governor had already dissolved the legislative assembly and assumed all the powers of the State. Now the Governor assuming the powers cannot be a breakdown of the constitutional machinery바카라 It would be absurd to suggest that and have the President intervene under Article 356,바카라 he argued, the report mentioned.
The senior lawyer said the purpose of Article 356 was to restore normalcy to a State, not to do away with the State, it mentioned.
He referred to the Constitution Bench judgment in the S.R. Bommai case, which said that a State as a 바카라constitutional entity바카라 must survive Article 356, it added.
바카라Here, ultimately, they wanted to do away with the State,바카라 Naphade said, the report said.
