Srinagar/New Delhi: On behalf of the Govt of India, four lawyers presented their arguments in support of the abrogation of article 370 before the Supreme Court on the 13th day of the hearing on Thursday with AG saying that Kashmir has both internal disturbance and external aggression, Adv Salve asserting on the textual context of article 370- which says “recommendation and not concurrence” and Adv Dwedivi calling president’s action a Constituent power.
The hearing began when SG Mehta briefed court about the current situation in Jammu and Kashmir, He cited increasing number of tourists visiting valley after abrogation and decreased law and order events in the region.
Subsquently,three more lawyers argued in favour of the abrogation.
Here is the Detailed Hearing:
Justice BR Gavai is presiding virtually today. The CJI has informed the court that Justice Gavai is suffering from conjunctivitis.
SG: The central government is ready for elections at any time. Till date updating of the voters list was going on- which is substantially over. Some part is remaining- that the Election Commission is doing.
SG: There are three elections which are due. For the first time, the three tier panchayat raj system is introduced. First elections would be for panchayats. District development council elections have already taken place.
SG: Leh elections are over. Kargil hill development council- the elections would be by the end of this month.
SG: Then there would be municipality elections and then there would be legislative assembly elections. It is a UT with the legislature- except for law and order and police they have...
SG: The terrorist initiated instances are reduced by 45.2%. I'm comparing 2018 situation with 2023 situation. Infiltration reduced by 90.2%
SG: Law and order events- stone pelting etc reduced by 97.2%. These figures are all relevant for purpose of when to hold the elections. Security person casualty is reduced by 65.9%. These are factors agencies would take into consideration.
SG: What affected the elections most was stone pelting and regular calls of bandh and hartals- hospitals, schools, every institution a common man is concerned with.
SG: 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.
SG: In 2018, organised bandhs were 52- they are nil now.
SG: So far as statehood is concerned, I've already made a statement but that apart, the statement of Home Minister on floor of parliament - UT is a temporary thing, we're dealing with an extremely extraordinary situation.
SG: Those actions (to restore statehood of J&K) are initiated. I may give some instances how it is progressing to become a state. Because I'm unable to give exact (details).
SG: 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.
SG: Several e-initiatives have taken place and as a result of that, the transperancy 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: Policing alone can't do it, several initiatives are introduced...out of 53 projects under the Prime minister development package, worth 58477 crores, out of 53, 32 are completed.
SG: This is how we are proceeding to make it a complete state. But I'm unable to give an exact timeline period right now about complete statehood. UT status is a temporary status.
SG: Only in 2022- January to December 2022, 1.88 crores tourist visited. The main industry was tourism. Now new industries are also coming.
SG: These are the steps taken by union government and these steps can be taken only if it is a union territory.
SG: The government is ready for elections. It is for the Election Commission of India and 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's in the process. It'll be over soon.
Sr Adv Kapil Sibal: I just want to know if your lordships are taking into account these facts. Because that's relevant from our point of view. Because if your lords had said earlier that subsequent facts would be taken into account.
CJI: These facts would have possibly no bearing on the constitutional issues being argued.
Sibal: Even otherwise, because we would have to counter those facts.
CJI: We have asked them for a roadmap on elections. That's what they've provided. But our decision on the constitutional issue has to be...
Sibal: These facts would go into the mind of the court because they're trying to show how this enormous change has taken place.
Sibal: If you have 5000 people under house arrest and 144 throughout the state, there can be no bandh! My request is please don't enter into arena because we would have to counter it with all kinds of facts.
CJI: 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.
Sibal: If these facts come on record, that has...
CJI: To be fair to the SG, what he was saying is that the roadmap to full statehood would take time but right now development work is taking place, and some stability has to come, this is not permanent.
CJI: These are matters where there can be and should be policy differences but that can't affect the constitutional arguments. We place these facts in the perspective of the roadmap to statehood. This isn't a justification and cannot be to constitutional challenge.
CJI: Therefore, we didn't even place the additional affidavit on record as well.
SG: During my assistance on merits, I've never relied on this.
Sibal: The problem is that all this is televised. And all of this is recorded. These facts then come on record. They're a part of public space. People think what a great thing has been done by the government.
Sibal: This creates a problem. That's why..
SG: Progress never creates problems.
CJI: We have clarified that constitutional challenge will be dealt with on constitutional arguments.
SG: 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: 5000 people! Let's not make a mockery of democracy.
Sibal: 5000 people were under house arrest at that time, 144 through state. This court in a judgement has recognised that...internet was shutdown and then they're saying there were no bandhs. How can there be bandhs when people can't even go to hospitals.
CJI: Right from the inception of the hearing, we have heard this matter in a sort of dispassionate way, the sense of objectivity...we request both sides to maintain it at that level.
AG commences his arguments for the day.
AG: The presumption against absurdity is to avoid an impossible result, it will avoid an unworkable and impractical result, it will also avoid an anomalous and illogical result, and it will avoid a futile or pointless result.
AG: One possibility is that maybe it is extreme to say that because the Constituent Assembly doesn't exist, the proviso dissolves. Suppose we don't want to go through that, the president says I'm free to exercise my power.
AG: The other is that you follow the precedents followed by the President earlier while taking recourse to Article 367 and recourse to Article 370(1)(d).
AG: In two occasions the president has done that earlier. I'll show that.
AG: There is a void, there is an impossibility of complying with the proviso of clause (3) and how to tackle that void? The president could have said that without taking recourse to any other action, i could myself render 370 inoperative.
AG: But the president doesn't adopt that course. She wants to be guided by a process which would approximate the non-legislative functions of the legislative assembly.
AG: If the doctrine of impossibility stands in your way, you're not paralysed.
AG: It's not about ends justifying the means. It's about taking stock of very complex situations. Do we have a mathematical formula of doing it? Or do we only measure it by saying that there are constitutional mandates- if you disobey them you cannot do anything regarding A 370?
AG: I do not know whether these questions can be answered through a mathematical formula.
AG: How do we have a mathematical formula saying this is how you'll do it in the context of internal disturbance, or this is how you'll do it in the context of external aggression? You have some broad standards where fundamental values aren't breached.
AG: 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?
AG: When you talk of substitution of a legislative assembly by 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.
AG: The determination of Article 370 must occur at some time, notwithstanding whatever happened over a period. If determination can occur in more than one way, whichever is the way that will advance the larger interest...
AG: 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.
AG: That precisely is what happened now. The president started saying that the president is not precluded from taking stock. It's inherent in Article 370.
AG: It is open to the President to take stock of all exercises undertaken under Art 370 and take into account the larger considerations that loom large before the nation, particularly before J&K.
CJI: If there is something which remains, you can tell us after lunch. Thank you.
Senior Advocate Harish Salve commences his arguments.
Salve: I am appearing on behalf of the applicant in an IA. I have made a three page roadmap of what I'll submit.
Salve: I am only supplementing some submissions made. One is construction of proviso to 370(3), the width of power under 370, the nature of the power of president under various sub articles under 370, the absence of a challenge on administrative law principle of abuse of power.
Salve: The first point relates to construction of proviso. Normally these are the three aspects that are looked at- textual, contextual, and historical. The author of the provision and list of date sets out in detail - on whether there should be special treatment of Kashmir.
Salve: This was an element accomodating certain political compromises within the constitutional framework. And it now stands as it does and its words have to be given their plain meaning.
Salve: In textual bit, what is of significance is that if the idea was that the president could only give effect to recommendation of Constituent Assembly- then that would have been made the precondition for exercise of power.
Salve: Perhaps the article would have said- "If the recommendation would have been received from the Assembly, then the President may".
Salve: That's not the frame in which this was drawn out.
Salve: One of the articles of that nature is Article 249- it starts by saying that "If the council of states has declared by resolution, then it shall be lawful to make laws".
CJI: But Mr Salve, does the proviso to Art 370(3) does not bring out the same result by the use of the expression "shall be necessary"?
Salve: "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 don't have Constituent Assembly, you cannot act.
Salve: 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.
Salve: This very article uses two separate expressions- "concurrence" and "recommendation". If there was concurrence here, it would have been a much stronger place for the Constituent Assembly.
Salve: This article was very carefully crafted. Within the committee and assembly, there were differences. So we must give meaning to each word. The difference between concurrence and recommendation and framing of proviso...
CJI: 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 Art 370(3) brings complete abrogation of 370.
CJI: In which case, all the limitations infused by the earlier provisions of Art 370 are listed. Could it be to require concurrence for altering decisions of legislative power or for other provisions but for abrogation of the article nothing more than recommendation is required?
Salve: That brings me to contextual...till the arrangement is in place, unlike other states, where the constitution sets out legislative powers in the VII schedule in absolute terms- and there is an elaborate mechanism to tinker with those.
Salve: Here, there was a political agreement. There was an agreement embodied in (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.
Salve: There was a safety valve in Article 370(3). If the political compromise in 370(1) fails to achieve its purpose, it might become necessary to pull the plug. 370(3) is that plug.
Salve: The framers kept with the president the power to do away with this Article.
Salve: Your lordships have seen how phase by phase this divide has been narrowed down. More and more subjects were added, more and more alignment was made.
Salve: 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.
Salve: It may be difficult to find logic in each of this because it was a political compromise. Why was a constituent assembly put in place? It was a compromise - done to assuage.
Salve: One cannot search for too much logic. The safest thing for this court, in my submission, is a matter of constitutional interpretation of such provisions-which is political, the court has always said you must give these the widest possible meaning.
Salve: Look at one important nuance of this Article- in sub clause (d), "such of the other provisions of this constitution shall apply..." So power to the president to apply, disapply, apply with modifications...this doesn't require concurrence.
Salve: This dichotomy was built in.
Salve: This was meant to operate much beyond the Constituent Assembly because that concurrence would continue. There would always be a state government.
Salve: What that state government would be is another matter.
Salve: Disapplying 370 was carved out and put in (3). That can't be a provision limited in time to the existence of a constituent assembly. That is what explains why recommendation rather than concurrence...
Salve: When it comes to instruments of accession and terms of accession, the last word is with the Union. Because IoA requires consultation, not concurrence.
Salve: 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 370...
CJI: 370(1)(b) doesn't 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.
CJI: We take the matters in the list as they are and then you define what would be the domain of parliament to make law.
CJI: There is a bifurcation. Matters which are referable to the IoA, are those on which you only require consultation...but matters not specified in IoA- concurrence required.
CJI: You can make exceptions or modifications but if it's matters under IoA, it's only consultation.
Sibal: One cannot miss the significance of the overlay of the principle of international law which is ingrafted in 363- that these are matters primarily for the sovereign.
Sibal: Instruments of accession and their interpretation has always been a matter for sovereign. Here the accession being complete, irrevocable, and irreversible - that is clear as per Art 1 and 3. Where it touched the IoA, the president has the last word.
Sibal: That philosophy is reflected in (3). That if you want to disapply this political arrangement, if there is a Constituent Assembly consult them, otherwise you can do it. And there also recommendation.
Salve: 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: 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: There is a compromise. The accession is complete but I have a political compromise in which 370(1) is to operate but 370(3) is to put the compromise to an end and i reserve the right.
CJI: Which were the matters in IoA to which the first proviso to (d) applies?
Salve: We'll try responding to this by 4 p.m.
The bench rises for lunch. The hearings are to resume at 2 p.m.
Reconvened
Salve: This is an arrangement for the phased integration - keeping and reserving the power of disapplying the provision by the President.
Salve: The delhi laws judgments were cited. That can have no application here. That principle cannot apply here. Your Lordships read down the power to extend and apply laws under Art 14. The argument was excessive delegation.
Salve: 370 is a part of Constitution itself. There is no question of excessive delegation. The power has been provided to the President.
Salve: The power under 370 is plenary in nature and this is a power conferred by the Constitution.
Salve: Plenary power is not subject to the challenge of excessive delegation because it is provided by the Constitution itself.
Salve: The second point is that the power exercised is legislative in character. Applying provisions and disapplying provisions, modifying provisions of a law is legislative in character.
CJI: Even if it is a legislative power, it is amenable to judicial review under Art 14. A legislative power cannot be challenged on ground of being malafide.
Salve: 14 cannot have any application to Article 370(3).
Salve: This is a relationship between the union and the unit of the union.
Salve: 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 they had certain rights in an earlier regime. You have only certain rights available to you.
Salve: Article 14 argument that I was earlier given such rights in J&K- will not be open.
Salve: Their rights are expanded by applying the Indian Constitution wholly...
Salve: As much as a resident outside J&K could not say why am I made subject to parliamentary legislation when this subject in the state of J&K is not...
Salve: Here, abuse of power is really the power of competence. This repeated reference to basic structure is surprising.
Salve: Basic structure was not a principle as an independent stand alone constitutional right. Basic structure is the limitation inherent in 368 and constitutional amendments are tested with reference to basic structure doctrine.
Salve: Laws, strictly speaking, can't violate basic structure. Laws violate Part III or don't violate Part III.
CJI: In two judgments though, we have said that a particular law protects the basic structure. Places of worship act, in Ayodhya, we said- that is in pursuance of the basic structure. The second we said that the amendment for Delhi- of 239AA was in furtherance of basic structure.
Salve: When a law is made to protect civil liberties- 21 is a part of basic structure, a law made to protect civil liberties is a law aligned with Art 21 and therefore aligned with the basic structure.
Salve: Today if there are checks and builds to safeguard arrest, criminal trial etc- you may say this is to protect the basic structure but the basic structure is the trilogy of rights. That is not to say that the law was tested on basic structure.
Salve: The nature of the provision 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: If we're wrong on this- the 356 test - can a change of permanence be made while 356 regime is going on- it had two answers.
Salve: This is no longer res integra. Your lordships have held that up to the stage that parliament approves, don't do anything irreversible. Thereafter you may.
Salve: Because everything is in one sense is irreversible. Parliament passes the budgets of the states- money spent is irreversible.
Salve: The president may dismiss people, appoint people, create institutions, remove institutions- the governor may do, president may do under 356- those are for those people irreversible. That is why your lordships have said 356 must be very sparingly used, it is draconian.
Salve: 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 356. That's in the alternative.
Senior Advocate Harish Salve has concluded his arguments.
Sr Adv Rakesh Dwivedi commences his arguments
Dwivedi: The burden is on them to show that what they're saying is unquestionably right. Second, if there are two views, that view should be adopted which sustains the exercise of power and not defeats the exercise of power.
Dwivedi: So the burden on them is to show that what they've put forth is the only view possible.
Dwivedi: In constitutional matters, it is always possible to take two views...
Dwivedi: I have some divergence from what Mr. Salve submitted. It's not in opposition.
Dwivedi: My divergence is about the character of power of president. Mr Sibal said that it is executive, Mr Salve said that it is legislative. I say it is Constituent power much wider than Art 370.
Dwivedi: The power to modify in itself is very wide. There are five kinds of Constituent powers in the Constitution. First is the original Constituent power through which the Constitution was framed.
Dwivedi: The second is the ancillary constituent power- like Article 238 that for certain period, central govt would control part B states.
Dwivedi: Where you're amending the constitution - that power is Constituent power.
Dwivedi: It cannot be described as an ordinary executive power of the President or even a power which is legislative in the nature of an ordinance making power.
Dwivedi: This is a constituent power which is laced with elements of act of state.
Dwivedi: 370 cannot be decided on the basis of sentiments. Sentiments are on both the sides.
Dwivedi: This is a power of a very wide scope and wide impact- for the whole of the country.
Dwivedi: On one hand if you accept our submission, the rights of people of Kashmir get expanded.
CJI: The existence of a state is a very vital element of Federalism.
Dwivedi: I am dealing with CO 273. CO 272 is answered by the SG. I am saying that irrespective of 356 invocation or Art 3 invocation 273 is sustainable on main part.
CJI: So you have given 3 Constituent powers- original Constituent power, ancillary Constituent power, amendatory Constituent power.
Dwivedi: The fourth is like the provisions of Art 3 and 4 where amendment of schedules of states can be altered.
Dwivedi: And the fifth is Art 2.
Dwivedi: A recommendation of an inferior authority when it goes before a superior authority can never be binding, that also if the body is a temporary body.