Article 370: SC Asks Whether Its Reading Down Was Logical to Achieve J&K’s Integration

New Delhi: Chief Justice of India D.Y. Chandrachud asked on Tuesday, August 29 whether the reading down of Article 370 was a logical step to achieve Jammu and Kashmir's integration.

The five-judge constitution bench was hearing petitions challenging the reading down of Article 370.

During the hearing, the word “recommendation” used in the proviso to Article 370 (3) of the Constitution – before it was read down on August 5, 2019 – came in for special scrutiny before the top court bench.

The proviso says that the "recommendation" of the Constituent Assembly of the State "shall be necessary before the president issues a notification" declaring that this article "shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify".

Attorney General R. Venkataramani contended before the bench that the word “recommendation” should be construed as mere advice, and therefore, it is not binding on the president.

Chief Justice of India D.Y. Chandrachud, however, expressed his disagreement with such interpretation. According to him, the word “recommendation” in Article 370(3) meant a positive decision, because the same Article also uses the words ‘consultation’, ‘concurrence’ and ‘decision’ and ‘advice’ in different contexts.

AG Venkataramani was of the view that the Constituent Assembly could not have recommended to the president not to read down Article 370, and therefore, the question of the president overriding it did not arise. The Constituent Assembly could only recommend rendering Article 370 inoperative, he suggested.

Also read: Day 2 of Article 370 Case: Constituent Assembly Is Distinguishable From Partisan Parliament, SC Told

He added that the president did not lose authority and power under Article 370(3) just because the Constituent Assembly was no longer operative, having dissolved itself without such a recommendation. The power conferred on the president under Article 370 is a legislative power, not executive, he clarified.

The CJI observed that between absolute autonomy of J&K in 1950 to “complete integration” on August 5, 2019, there was a chasm substantially bridged in between. He asked whether the reading down of Article 370 was a logical step to achieve that integration.

Earlier, Solicitor-General (SG) Tushar Mehta had submitted that Article 370(3) has an in-built extinguishing clause.

The CJI made it clear that restoration of democracy in the erstwhile state of J&K is important. He nudged the AG and the SG to take instructions from the “highest levels” of the Union government on the “road map” and a “time frame” to restore democracy in J&K.

“Progression has to take place. It can’t be a UT permanently,” the CJI told the SG, who brought Union home minister Amit Shah’s statement in parliament that the government would confer statehood on J&K, if the situation improved, and that it had no difficulty in doing so.

Ladakh, however, will remain a UT, the SG disclosed.

"I have taken instructions. The instructions are that Union territory is not a permanent feature. But I will make a positive statement the day after tomorrow. Ladakh will remain a Union territory," Mehta said during the course of the hearing.

Earlier, the CJI had asked why the government could not declare a specific time frame for creating a Union territory to tackle national security, so that it could fulfil hopes that statehood would be restored soon. The bench quizzed the SG on the contours of Article 3 which enables parliament to form new states, and alter areas, boundaries and names of existing states.

The bench also sought to dissect Article 370 (1) (d) which makes the consultation with and concurrence of the state government mandatory for applying provisions of the Indian Constitution other than Articles 1 and 370. Consultation with the J&K government was mandatory if the other provisions of the constitution related to matters specified in the Instrument of Accession (IoA), while its concurrence was required for matters outside the IoA.

Also read: The Backstory of Article 370: A True Copy of J&K’s Instrument of Accession

Mehta pointed out that there were several exercises of this provision during the president’s rule, and the concurrence of the governor was considered sufficient for the purpose. To a query from Justice Sanjiv Khanna on whether concurrence of the government meant that of the council of ministers, Mehta suggested that its powers could be exercised by the governor, in its absence.

The CJI posed a specific question asking whether parliament can use Article 367 – dealing with interpretation – to amend Article 370.

The amendment to Article 367 enabled parliament to read ‘Legislative Assembly’ instead of Constituent Assembly, in order to circumvent the requirement of Article 370 (3), which makes recommendation of the Constituent Assembly mandatory for the president to make Article 370 inoperative.

Mehta submitted that when the Constituent Assembly was dissolved without any recommendation to make Article 370 inoperative, the proviso to Article 370(3) requiring such recommendation became otiose. The president, therefore, was left to his own choice, he suggested.  He added that the removal of Article 370 – a transitory provision – furthers the basic structure of the constitution and enhances equality and fraternity, the bedrock of the constitution.

The Wire is now on WhatsApp. Follow our channel for sharp analysis and opinions on the latest developments.