Supreme Court hearing on Article 370 abrogation | Day 13

Arguments have concluded for the day. The hearing will resume tomorrow i.e. on September 1.

Dwivedi says that a recommendation of an inferior authority when it goes before a superior authority can never be binding, especially if the body is a temporary body.

Dwivedi says – ‘I have some divergence from what Mr. Salve submitted. It is not in opposition. My divergence is about the character of the power of the President. Mr. Sibal said that it is the executive, Mr Salve said that it is legislative. I say it is Constituent power much wider than Article 370.’

‘Where you are amending the constitution - that power is Constituent power’, he adds.

Outlining the burden that rests on the petitioners, Dwivedi says –

‘The burden is on them to show that what they are saying is unquestionably right. Second, if there are two views– that view should be adopted that sustains the exercise of power and not defeats the exercise of power. So the burden on them is to show that what they’ve put forth is the only view possible.’

Salve attempts to answer the question as to whether a change of permanence can be brought about during the operation of the President’s Rule under Article 356.

He says– ‘...This is no longer res integra. Your lordships have held that up to the stage that parliament approves, do not do anything irreversible. Thereafter you may. Because everything is in one sense irreversible. Parliament passes the budgets of the states- money spent is irreversible.....If the unfortunate circumstances arise that for a defined time, the system of governance changes and a very narrow area of judicial review is permissible- then one is to accept the consequence of Article 356. That is in the alternative.’

Salve explains– ‘The nature of the provision (Article 370) is such that if it confers plenary powers in the area of governance and the area of constitutional adjustments- your lordships will give it the widest possible interpretation.’

Salve contends – ‘..Here, abuse of power is really the power of competence. This repeated reference to the basic structure is surprising. The basic structure was not a principle as an independent stand-alone constitutional right. Basic structure is the limitation inherent in Article 368 and constitutional amendments are tested with reference to the basic structure doctrine. Laws, strictly speaking, cannot violate the basic structure. Laws violate Part III [Fundamental Rights] or do not violate Part III.’

Salve explains that Article 14 will have no application with regard to Article 370 because the provision governs a relationship between the Union and the unit of the Union.

‘...Applying or disapplying the constitutional provision would not give an individual citizen right. This is adjusting the accession. In international law, a citizen can never assert that I had certain rights in an earlier regime. You have only certain rights available to you’, he adds.

CJI Chandrachud asks – ‘..Even if it is a legislative power, is it amenable to judicial review under Article 14 (Equality before law ) ? A legislative power cannot be challenged on grounds of being malafide.

Salve says that the power exercised is legislative in character – applying provisions and disapplying provisions, modifying provisions of law is legislative in character.

Salve says that Article 370 is a part of the Constitution itself and that there is no question of excessive delegation. He points out that plenary power has been conferred upon the President under Article 370 and that this power has been provided by the Constitution itself.

‘Plenary power is not subject to the challenge of excessive delegation because it is provided by the Constitution itself’, he adds.

Salve contends – ‘..What is important, how does this allign with a complete accession? Article 3 is the answer. That this (Article 370) is an arrangement for the phased introduction of the Constitution. Keeping or reserving onto the President the power to disapply this article (Article 370).’

CJI Chandrachud says– ‘If the President wanted to make any exceptions or modifications with respect to defence, communication, or external affairs then only consultation was required.’

Salve points out that Article 370 starts by saying – ‘the provisions of Article 238 shall not apply’. He then says that under Article 370, the President is to decide how the seventh schedule is to be divided.

Slave refers to clause 7 of the IOA which reads as –

‘Nothing in this Instrument shall be deemed to commit in any way to acceptance of any future constitution of India or to fetter my discretion to enter into agreement with the Government of India under any such future constitution.’

Salve refers to the clauses specified in the Instrument of Accession.

CJI Chandrachud says – ‘....Which were the matters in IoA to which the first proviso to (d) applies?’

In response Salve says –’..We will try responding to this by 4 pm.’

Addressing Salve, CJI Chandrachud says – ‘...The only problem with that argument is that where the power to do something lesser in terms of constitutional impact is hedged in with restrictions- namely the power to make exceptions and modifications- can be subsumed with the power to do something with greater impact?’

Salve says – ‘...Unsurprisingly, they reserved the power to the president to disapply the article instead of driving on to Article 368. It’s a very unusual provision. There is no other equivalent.’

CJI Chandrachud says – ‘...Article 370(1)(b) does not relate to the power related to adaptations, modifications, or exceptions at all. What it says is that of all items in the three lists, the power of Parliament to make laws is limited by specific matters. We take the matters in the list as they are and then you define what would be the domain of Parliament to make law. There is a bifurcation. Matters which are referrable to the IoA, are those on which you only require consultation...but matters not specified in IoA- concurrence is required. You can make exceptions or modifications but if it is matters under IoA, it is only consultation.’

Salve says that when it comes to the IoA and the terms of the accession, the last word is always with the Union because the IoA requires consultation and not concurrence.

‘Why this dichotomy in the first and second proviso? Your Lordships will have to reflect over it. That feeds into my point that where it comes to disapplying Article 370...’, he adds.

Salve says – ‘...This was meant to operate much beyond the Constituent Assembly because that concurrence would continue. There would always be a state government...What that state government would be is another matter.’

Pointing out an ‘important nuance’ of Article 370, Salve says that Article 370(1)(d) does not require concurrence. He says that such a dichotomy was built in.

Article 370(1)(d) states– ‘ such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify: Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub-clause (b) shall be issued except in consultation with the Government of the State: Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government’.

Urging the court to give the widest possible meaning to the provisions, Salve says–

‘...One cannot search for too much logic. The safest thing for this court, in my submission, as a matter of constitutional interpretation of such provisions-which are political, the Court has always said you must give these the widest possible meaning.’

Salve says – ‘...The history of Kashmir did give rise to apprehensions. So border state, with all its sensitivities, is what compelled the Constituent Assembly to agree to the special arrangement. And with their wisdom, they said you have the power to pull the plug....It may be difficult to find logic in each of these because it was a political compromise. Why was a constituent assembly put in place? It was a compromise - done to assuage.’

Salve says– ‘...The framers kept with the President the power to do away with this Article. ‘

Salve responds – ‘...That brings me to contextual...Here, there was a political agreement. There was an agreement embodied in Article 370 (1) (d) which has concurrent. But if this led to a situation that ultimately prevented integration - the purpose was not to divide the Constitution. It was a phased integration......There was a safety valve in Article 370(3). If the political compromise in Article 370(1) fails to achieve its purpose, it might become necessary to pull the plug....Article 370(3) is that plug’

CJI Chandrachud remarks – ‘.....There is one consideration - that where the change in the distribution of legislative power was envisaged, the provisions spoke of concurrence, except in the area covered by the IoA. The exercise of the power under Article 370(3) brings complete abrogation of Article 370. In which case, all the limitations infused by the earlier provisions of Article 370 are listed. Could it be to require concurrence for altering decisions of legislative power or for other provisions but for the abrogation of the article nothing more than recommendation is required?’

Salve says that Article 370 uses two separate expressions- “concurrence” and “recommendation”. He contends that if the word concurrence was placed, then it would have been a much stronger place for the Constituent Assembly.

‘....This article was very carefully crafted. Within the committee and assembly, there were differences. So we must give meaning to each word’, he adds.

Salve responds by saying – ‘......“shall be necessary” here must then be subject to the principle that if there is a constituent assembly...first of all, the word is ‘recommendation’, not ‘concurrence’; second, that becomes necessary if you do not have a Constituent Assembly, you cannot act. Is the President to act only to give effect to the desire of the Constituent Assembly or is he to receive the recommendation from the Constituent Assembly? The compromise was that he must receive the recommendation.’

CJI Chandrachud asks – ‘..But Mr Salve, does the proviso to Article 370(3) not bring out the same result by the use of the expression “shall be necessary”?’

Salve argues – ‘...The first point relates to the construction of the proviso. Normally these are the three aspects that are looked at- textual, contextual, and historical. The author of the provision and list of dates set out in detail - on whether there should be special treatment of Kashmir. This was an element accommodating certain political compromises within the constitutional framework. And it now stands as it does and its words have to be given their plain meaning. In the textual bit, what is of significance is that if the idea was that the President could only give effect to the recommendation of the Constituent Assembly- then that would have been made the precondition for the exercise of power. Perhaps the article would have said- “If the recommendation would have been received from the Assembly, then the President may”......That is not the frame in which this was drawn out. ‘

Salve says – ‘....I am only supplementing some submissions made. One is the construction of proviso to Article 370(3), the width of power under Article 370, the nature of the power of the President under various sub-articles under Article 370, the absence of a challenge on administrative law principle of abuse of power.’

The AG says that it is open to the President to take stock of all exercises undertaken under Article 370 and take into account the larger considerations that loom large before the nation, particularly before J&K.

The AG argues – ‘....There is only one solitary interpretation - that it is to aid the constitutional integration process. Whatever has happened even thereafter is to be seen in the light of that. If any deviation occurs, it is open to correction by the President. ‘

The AG submits that the determination of Article 370 must occur at some time, notwithstanding whatever happened over a period of time. He says that such a determination can occur in more than one way – in a way that will advance the larger interest.

The AG says – ‘..When you talk of the substitution of a legislative assembly by a Legislative Assembly, we are looking at the non-legislative functions of the legislature. If the Constituent Assembly had recommended to the President before 1957, it would have done the same job.’

The AG submits – ‘....I do not know whether these questions can be answered through a mathematical formula....How do we have a mathematical formula saying this is how you will do it in the context of internal disturbance, or this is how you will do it in the context of external aggression? You have some broad standards where fundamental values are not breached. But if there is something that you have to negotiate, even with the breach of fundamental values what do we do? Is it a political question or a judicial question?’

The AG says that the President could have unilaterally abrogated Article 370 but instead, he took the recommendation of the Legislative Assembly into consideration. He points out that the President can declare the ‘power of the legislature’ under the Constitution.

The AG submits ‘...If the doctrine of impossibility stands in your way, you are not paralysed. It is not about ends justifying the means. It is about taking stock of very complex situations. Do we have a mathematical formula for doing it? Or do we only measure it by saying that there are constitutional mandates- if you disobey them you cannot do anything regarding Article 370?’

The AG relies on the Supreme Court’s ruling in Re: Presidential Poll v. Unknown (1974) to contend that the law does not compel one to do what one cannot perform. He submits that since the Constituent Assembly does not exist, it cannot recommend abrogation.

CJI Chandrachud remarks – ‘....Right from the inception of the hearing, we have heard this matter in a sort of dispassionate way, a sense of objectivity...we request both sides to maintain it at that level. ‘

SG Tushar Mehta says– ‘..On the lighter side, my learned friend says that there are some people under house arrest and therefore there is no bandh. That means the right people are under house arrest.’

Sibal responds by saying: ‘...5000 people! Let us not make a mockery of democracy.’

‘...5000 people were under house arrest at that time, 144 throughout the State. This court in a judgment has recognised that...internet was shut down and then they are saying there were no bandhs. How can there be bandhs when people cannot even go to hospitals?’, the SG adds.

CJI Chandrachud underscores – ‘.. We have clarified that the constitutional challenge will be dealt with on constitutional arguments.’

Objecting to the submissions of the Solicitor General, Sibal says– ‘The problem is that all this is televised. And all of this is recorded. These facts then come on record. They are a part of public space. People think that a great thing has been done by the government. This creates a problem. That is why.’

CJI Chandrachud says– ‘ To be fair to the Solicitor General, what he was saying is that the roadmap to full statehood would take time but right now development work is taking place, some stability has to come, this is not permanent. These are matters where there can be and should be policy differences but that cannot affect the constitutional arguments. We place these facts in the perspective of the roadmap to statehood. This is not a justification and cannot be to constitutional challenge. Therefore, we didn’t even place the additional affidavit on record as well.’

Sibal says– ‘These facts would go into the mind of the court because they are trying to show how this enormous change has taken place....If you have 5000 people under house arrest and 144 throughout the state, there can be no bandh! My request is please do not enter into the arena because we would have to counter it with all kinds of facts.’

CJI Chandrachud clarifies that the facts presented by the Centre would possibly have no bearing on the constitutional issues being argued.

‘The nature of the development which the government says took place post August 2019, this may not be of relevance to your constitutional challenge and therefore, what they respond to constitutional challenge, that has to be dealt with independently’, the CJI says.

Senior Advocate Kapil Sibal asks the Bench if the court is taking these facts into consideration. He says– ‘I just want to know if your lordships are taking into account these facts. Because that is relevant from our point of view. Because if your lords had said earlier that subsequent facts would be taken into account..’

SG Mehta says – ‘...The government is ready for elections. It is for the Election Commission of India and the Election Commission of State to take the call- which election will take first and how. Updating of the voter’s list is complete. Some part is missing– it is in the process. It will be over soon.’

SG Mehta says that the Union Territory status is a temporary status – ‘...This is how we are proceeding to make it a complete state. But I am unable to give an exact timeline period right now about complete statehood. Union Territory status is a temporary status.’

SG Mehta submits – ‘...The central sector scheme investment is 28400 crores. The investment proposals for other than central schemes is 78000 crores. Till date, the actual investment made is 2153 crores. Several e-initiatives have taken place and as a result of that, the transparency has shown us that the projects have risen from 9229 in 2018 to 92580 now. More people are participating in e-tendering etc. Youth is gainfully employed.’.

SG Mehta says that actions to restore the statehood of J&K have been initiated. He however submits– ‘...I may give some instances of how it is progressing to become a state. Because I am unable to give exact (details).’

SG Mehtab submits – ‘....What affected the elections most was stone pelting and regular calls of bandh and hartals- hospitals, schools, and every institution a common man is concerned with. In 2018, the stone pelting was 1767. It is nil (now), not just because of effective policing and security personnel but because of various steps such as gainfully employing youth, etc. They were misled by secessionist forces. In 2018, organised bandhs were 52- they are nil now.’

The Solicitor General apprises the court about the law and order situation. He says that stone pelting and other such activities have been reduced by 97.2 percent.

‘ These figures are all relevant for the purpose of when to hold the elections. Security person casualty is reduced by 65.9 percent. These are factors agencies would take into consideration, he adds.

SG Mehta says – ‘ The second election would be municipality elections and the third would be legislative assembly elections. It is a Union territory with legislature- your lordships were taken through that, except law and order and police.’

SG Mehta submits – ‘..For the first time, the three tier panchayat raj system is introduced. The first elections would be for panchayats. District Development Council elections have already taken place....Leh elections are over. Kargil Hill Development Council- the elections would be by the end of this month, the process is on.’

Solicitor General Tushar Mehta apprises the Court – ‘The Central government is ready for elections at any time now. Till date, updating of the voters list was going on which is substantially over. Some part is remaining- that Election Commission is doing. When– would be the call taken by the State Election Commission and of course the Union Election Commission together but then there are 3 elections which are due.’

The Bench has convened. The hearing has begun.

The Constitution Bench comprising CJI DY Chandrachud, Justice Sanjay Kishan Kaul, Justice Sanjiv Khanna, Justice BR Gavai, and Justice Surya Kant will continue to hear arguments advanced by the Union government today.

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Stay updated about the ongoing Supreme Court proceedings on the abrogation of Article 370 with The Hindu’s coverage of the latest developments.

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Article 370 abrogation case | The Hindu’s detailed coverage

Ahead of the historic Article 370 abrogation verdict, here is The Hindu’s detailed coverage of the Supreme Court proceedings

Chief Justice of India D.Y. Chandrachud on Tuesday gave the Centre leeway to claim it had converted Jammu and Kashmir into a Union Territory for a “stipulated period” in order to protect national security, but pushed the government to commit to a time frame by which it would be restored to a full-fledged State.

​Read more here.​