Mehta again defended abrogation citing “unique” challenges faced by J&K as a border state and stressed that the reorganization act 2019 was driven by policy considerations.
The hearing then focused on the interpretation of Article 370, specifically addressing whether the recommendation provided by the J&K Constituent Assembly was binding. Mehta contended that it was a recommendation and not binding on the President, emphasizing that Article 370 was always intended to be temporary.
When Mehta argued that the Constitution of J&K will always be subordinate to the Indian Constitution because the J&K Constituent Assembly's very creation was by Article 370, CJI agreed saying yes, the J&K constitution is not a document that can be equivalent to the Indian Constitution.
CJI also said that they (the bench) understand that these are matters of national security. However, he sought a time frame to restore democracy in Kashmir.
“We understand the matters of national security. The preservation of nation itself is the overriding concern. But without putting you in a bind, you and the Attorney General may seek instructions on the highest level - is there a time frame in view?,” CJI asked.
Mehta also apprised the court that the statehood will be restored in J&K but Ladakh will continue to remain a UT.
Detailed hearing:
SG Mehta: I will cover only three points now- the interpretation of Art 370, which according to us is the correct interpretation; second, state reorganization act and; third, what are the parameters of powers of legislature during 356.
SG Mehta: If I start with 370, some of the arguments on the other side were that there was an assurance given to princely states as a result of which they joined India and Art 370 is a result of that.
SG Mehta: I will deal with that contention first. This happened first in the case of Madhavrao Scindia - the govt withdrew privy purses.
SG Mehta: There were two constitutional provisions- Art 291 and 362 which provided for privy purses. Central govt exercised powers under 366 and deleted the term 'princely states'.
SG Mehta: This court allowed that petition and said that so long as these two provisions exist, you cannot take away privy purses by merely changing Art 366 which is the definition clause.
SG Mehta: After the judgement in Madhavrao Scindia, there was a constitutional amendment. Government repealed it. So the route was taken. That came to be challenged and the matter went to be challenged in Raghunath Rao Ganpat Rao v UOI.
SG Mehta: In this case, the court said that any change in the Constitution which brings everyone at par can never be faulted with. Princely states, after formation of Constitution, lost their special privilege and the word 'fraternity' had to be given meaning.
SG Mehta: Here two constitutional provisions were dispensed with by way of a definition clause, unlike interpretation clause. Kindly bear one factor in mind- Article 370(3) has an in-built extinguishing provision. That's the distinction.
SG Mehta (reading from Raghunathrao's judgement): "A serious argument has been advanced that the privy purse was a just quid pro quo to the Rulers of the Indian States for surrendering their sovereignty and rights over their territories..."
SG: "...This argument based on the ground of breaking of solemn pledges and breach of promise cannot stand much scrutiny. To say that without voluntary accession, India would be different from that Bharat that came into being prior to the accession is untenable..."
SG: "One should not lose sight of the fact that neither 'cause of their antipathy towards Rulers nor due to any xenophobia, did the Indian Govt entertain the idea of the integration but because of the will of the people. It was the people who were instrumental in integration."
SG Mehta: Even removal of some provision, according to this judgement, can further the constitutional objective and can be in furtherance of the basic structure of the Constitution - fraternity, equality- it's a basic structure, it's a part of brotherhood.
SG: If any provision which keeps out of the total composition of our Constitution as an appendage, as a transitory provision, to be removed at an appropriate stage- if it is removed, it furthers basic structure & enhances equality and fraternity, which is the bedrock of Constitution.
SG: In this view, it may not be necessary to read Madhavrao Scindia judgement. In Madhavrao, it was done by a presidential order - one definition was deleted, and the president never possessed this power.
SG: Here, only in one provision, that is Art 370, which can amend any part of the Constitution - explanation 367 mechanism is used. This is a drastic nature of this provision. 370(1) permits two organs- President, State govt to change anything in Constitution.
SG Mehta: To ensure that this never happens again, 367 was used.
CJI: Mr SG, can the abrogation stand independent of the modification made to Article 367?
SG: Even in absence of the proviso, explanation what it does is that it merely substitutes the term Constituent Assembly with Legislative Assembly.
SG: My submission is that when the Constituent Assembly is dissolved without any recommendation, that power of the requirement goes because proviso becoming otiose cannot result into the main provision becoming inoperative. The president was left to his own choice.
SG Mehta: 367- I cannot modify under 370(3). That I have done only under 370(1)(d). And Damnoo approves it.
CJI: Can you alter the import of a provision of Article 370 itself by a process other than Article 370(3)? Because what you've done here is that you have used Article 367 to amend the proviso to 370.
SG: Not amend. 367 is explanation. It may have an effect of amendment.
CJI: Whether you call it an explanation or an amendment- the amendment to 367 had the consequence of reading the words 'Legislative Assembly' instead of 'Constituent Assembly'.
Justice Khanna: The question is that by amending Art 367, aren't you in fact amending Art 370 without taking recourse to 370(3)? Because Art 370 can only be amended in terms of Art 370(3).
SG: I understand but that would have an effect on the Article being permanent because then 370 can never be modified.
CJI: The argument of the other side is that you can then take recourse to sub-clause (d) of clause (1) in a situation where you have to amend any other provision of the Constitution other than Article 370.
SG Mehta: It doesn't say so.
CJI: 370(1)(d) refers to "other provisions of the Constitution". Other provisions according to you would include 367. Possible. But can you use 367 to bring about an amendment to 370? If you do that, are you not really doing that to amend 370 itself?
CJI: This is the heart of the matter.
SG: What will be the impact of this interpretation? I'll show that. In absence of a constituent assembly, which can never be modified, Art 370(3) can never come into effect and 370 gets the status of a permanent provision. Please read it in totality.
SG Mehta: The difficulty is that then even the 368 route, which is suggested, cannot be taken. If that is the meaning given, that 370 remains unalterable, it becomes permanent.
SG Mehta: Other provisions would mean other than (b)
Justice Khanna: Could the legislative assembly make a recommendation in terms of 370(1)(d) saying that under 367 you equate constitutent assembly to legislative assembly.
SG Mehta: Let me give it a thought and respond to that
SG Mehta: Through the 367 mechanism, 370 has been modified.
CJI: That's the point with the caveat that the use of 367 mechanisms to modify mechanism was always with the concurrence.
SG: This is also with concurrence. The only difference is that the concurrence is of the governor because governor steps into the shoes of the government.
Justice Khanna: Concurrence of government means council of ministers.
SG Mehta: Council of ministers, if it is there. Otherwise, the powers are to be exercised by the governor.
CJI: So simply put, your argument is that when there was no legislative assembly, the explanation was amended so as to provide that constituent assembly will be treated as legislative assembly...
J Khanna: So by amending 367 you are not amending 370 as such as procedure under 370 has to be followed to abrogate...Suppose 367 was amended in terms of 370(1)(d) with concurrence of state govt, other side would not have been here.
SG Mehta: The Constituent Assembly having chosen not to dissolve - left it to the discretion of the president. It could have been done. It would have been defendable. But with a view to ensure that there is democratisation of the action...
SG Mehta: They never wanted 370(3) to die, it's very clear.
SG Mehta: It is contained in Part XXI- temporary, special, transitory provisions. So constitution framers are aware of what words they're using.
SG Mehta: Look at the width of the power. Two individuals, two organs- President and state govt can alter any part of the Constitution and apply it to one part, can delete any constitutional provision, can create a new provision.
SG Mehta: Considering the legislative expanse of this provision, the constitution makers could have never wanted for this to remain forever.
SG Mehta: Impact of Art 370 was to deprive the residents of J&K and Ladakh from being treated at par with their fellow citizens. This is also a suggestive indicators that framers didn't intend for it to be permanent.
SG Mehta: This is the only provision in the Constitution where application of constitution and application of central laws including beneficial legislations is dependent on concurrence of state govt. Such a drastic provision cannot be perennial.
SG Mehta: This is the only provision that has a self destructive clause. This shows it was intended to be temporary.
Mehta: If the proviso becomes otiose, the main condition doesn't become otiose. The conditionality goes
Mehta: Even if the Constituent Assembly had been in existence, the limited roles stipulated...that I've already said is only recommendatory and president could have taken any other decision.
CJI: That cannot be correct because so long as the Constituent Assembly- it was not recommendatory. Look at the way the Article is made - "Recommendation...shall be necessary".
SG Mehta: What is mandatory is that you take recommendation. But the recommendation is not binding. Otherwise the constitution would have said, act accordingly.
Mehta: The Constitution of J&K will always be subordinate to Indian Constitution because the J&K Constituent Assembly's very creation was by Article 370.
CJI: According to you, the role of the Constituent Assembly of J&K is the role created for it by Constitution of India, nothing beyond that.
SG: Yes, it is subservient and subordinate. It never had original Constituent powers.
SG: Constitutions have certain attributes - it must be a document of governance providing for everything. This constitution only has certain aspects, rest they leave it to Constitution of India. For being recognised as a Constitution, you must provide for a kind of sovereignty
SG: Sovereignty would include right to acquire new areas, right to cede territories- which we have in Art 1,2,3,4. None of the attributes of a constitution can be attached to J&K constitution. It was a piece of legislature recognised till 5 August 2019.
CJI: There is another reason why your argument may be correct- look at S 5 of J&K constitution. It says that the executive and the legislative powers of the state extend to all matters except those in respect of which parliament has the power to make laws under the Indian Constitution.
CJI: So once the constitution of India defines areas in which parliament has power to make laws then that is denuded from the jurisdiction of j&k legislative assembly.
CJI: We have seen how progressively the ambit of the legislative domain of parliament was expanded. For instance, initially, the entire concurrent list was outside the power of parliament, we only had certain entries in union list.
CJI: Subsequently, the concurrent list was brought in. Then entry 97 was wholly outside purview of parliament. Later on, entry 97 is also gradually brought in...
CJI: It's very obvious from S 5 that once constitution of india prescribes a legislative domain for parliament, that is denuded from legislative domain of the J&K legislative assembly.
CJI: In that sense the J&K constitution was always meant to be subservient to India... it's not a document which can be equivalent.
SG Mehta: Section 147 even makes these provisions unamendable - sections 3 and 5 cannot be amended.
SG: This is a one of a kind case. If Gujarat or MP was to be bifurcated, the parameters would be diff. But when J&K, considering its strategic importance, border state, history of terrorism, history of infiltration, history of outside influence- there'd be some considerations.
SG Mehta: We share borders with atleast four countries, all of which may not be friendly to put it mildly.
Justice Kaul: We have many states with borders.
SG: The history also- how situation in Kashmir is developing, the deaths of civilians, the deaths of security forces, the number of attacks, stone pelting, the hartals, paralysing schools, hospitals, banks, businesses- everything.
SG: All are policy considerations. Whenever a state reorganization takes place, not only are their policy considerations as to why but also a blue print as to what the centre would do after the state is reorganised. How to bring youth in mainstream? How to employ, float schemes.
SG: There are several considerations. We will have to start with democratic local self governance so people participate in the internal institutions for their own good.
CJI: Once you concede that power to the union in relation to every Indian state, how do you ensure that the kind of abuse they apprehended- this power will not be misused
SG: Your lordships are dealing with a one of a kind situation which will not arise...
Justice Kaul: It's not one of its kind situation. We have seen the northern border Punjab- very difficult times. Similarly, some states in North East.
Justice Kaul: Tomorrow if there is a scenario that each of these states face this problem...
Justice Kaul: I understood your argument that these border states are their own category. How do you distinguish between J&K with any other border states?
SG: Here is a border state where one of our territories is occupied by Pakistan - we have PoK. I have given figures of deaths taking place every year. This is a problem faced by nation since decades which we're sorting out.
SG: There are several considerations - one of the considerations is how to bring youth in mainstream. What we see today is a result of blue print we have
SG: After this decision, there were elections which took place of district development councils. There are 34000 elected people. Democracy is going to the grassroots. There are large number of schemes introduced.
SG: The youth which used to be employed by the interests not amenable to India- terror groups etc, are gainfully employed. There is a blue print and I'll show that blue print.
CJI: Does parliament have the power to convert an existing Indian state into a UT? If it does have that power, how do we read Article 3?
Justice Kaul: What is the nature of the exercise of that power? Is it permanent, temporary, what is it?
CJI: The UT here is not intended to be a permanent territory?
SG: No!
CJI: How impermanent is this? When are you going to have elections?
SG: I will show the steps taken to reach that stage.
SG Mehta reads Article 3.
CJI: So wherever you read State, you read UT. Let's read clause (1) in that light.
CJI: Does clause (a) contemplate a situation where the entire territory of a state can be turned into a UT?
SG: There are two- J&K, and Ladakh. And there is nothing that prohibits that.
Justice Kaul: Suppose you had not carved out Ladakh? Then the power would be to convert the whole state into a UT.
Justice Kaul: How do you contemplate converting a state into UT? And if that can't be done can you do that by carving out a UT and making other also a UT?
SG: There is no restriction. For example, Assam, Tripura, and Arunachal became UT first and then became states.
Justice Kaul: Carving out Ladakh as a UT is less complicated. Suppose you don't carve out Ladakh as UT- can you say that the J&K state will become as it is in boundaries but it's not a state, it's a UT. When we want it, we'll reconvert it.
SG: Separation is necessary, that's my reading. That question we're not faced with yet.
Justice Kaul: Let's complicate it. Suppose out of Assam, you carve out a UT or you convert Assam to a UT.
SG: It's an extreme example but for purpose of testing, separation would be necessary. One state cannot be declared as UT.
SG: But here it is nobody's case that we carved out Ladakh to get out of this. We had other reasons.
CJI: As we see creation of UTs, you have on one hand, examples like Chandigarh - carved out of Punjab and remained a UT. Then you have a progression where certain areas became UTs in progression of making them states- north east, manipur, Mizoram, tripura.
CJI: They became UTs but that's in the process of making them into a stable administration to make them states. You can't immediately make them states.
CJI: Why was it not possible for the Union to say that right now in the case of a state, we have such an extreme situation in terms of national security, that we want for a certain period that a UT should be created. But this is not permanent and this shall be back as a state.
CJI: Can a union not do that for a certain period, to bring stability? Because let's face it, whether it's a state or UT, all of us survive if a nation survives.
CJI: Should we not permit parliament to postulate that for a certain period, in interest of the preservation of the nation itself, we want for a certain period that this particular state shall go in fold of UT- on the clear understanding that this shall revert back to a state.
CJI: The government also has to make a statement before us that that progression has to take place. It can't be a UT permanently.
SG: That's exactly the statement made on the floor of the parliament. I'll show after lunch.
CJI: We understand that these are matters of national security...the preservation of nation itself if the overriding concern. But without putting you in a bind, you and AG may seek instructions on the highest level - is there time frame in view?
SG: I'll take instructions. But I'll show statements and efforts...
CJI: Equally, restoration of democracy is important.
SG: In 2020, for the first time local Elections took place.
CJI: we take your point that progression has already begun.
CJI: Is there a roadmap? Tell us what the roadmap is.
The bench rises for lunch. Hearings to resume at 2 pm.
SG: I have taken instructions. The instructions are that UT is not a permanent feature. But I will make a positive statement day after tomorrow. Ladakh will remain UT.
SG: We will also meet personally and make a statement. I must tell your lords that so far as Ladakh is concerned - local body elections took place in 2020 and so far as Ladakh is concerned, it consists of two units- Leh and Kargil.
SG: We will also meet personally and make a statement. I must tell your lords that so far as Ladakh is concerned - local body elections took place in 2020 and so far as Ladakh is concerned, it consists of two units- Leh and Kargil.
SG reads from debates of Lok Sabha before passing of 2019 bill.
"Jahan Tak UT ka sawal hai, paristhiti saamanya hote hi, uchit samay par purna rajya ka darja dene mein iss sarkar ko koi aapatti nahi" As far as the question for UT is concerned, as soon as the situation returns to normalcy, at the right time, the current government does not mind conferring the status of a State (on J&K)."
SG Mehta: If you see holistically Articles 3 and 4, and I'm saying this academically- there is nothing if we read as a common scheme of reorganisation- that one state for a good reason, can be converted into a UT.
SG Mehta: Because 4 says some incidental provisions can even include something which may otherwise amount to amendment but would not be treated as an amendment under 367.
SG Mehta: Raja Rampal, five-judge bench, says "India is an indestructible union with destructible units."
SG Mehta: This is a provision where strict compliance is not insisted upon, provided that there is a broader compliance, namely the entire nation considering that this affects the nation as a whole. This situation doesn't just states or neighbouring states, it affects the nation.
SG: Nobody has shown a bird eyes view of reorganization act. Without showing, many statements were made. Please see.
SG: It has all attributes of a State- assembly constituency, election commission, legislative assembly, population ratio, UT, formation of UT of Ladakh without legislature, formation of UT of J&K with legislature-no reduction, they say representation in parliament is reduced, no.
SG Mehta: Earlier, only permanent residents could contest election under Section 16. Now, you should be a citizen of India, not a permanent resident, for being qualified to be elected like any other state.
CJI DY Chandrachud recalls his time in Bombay HC and says that his colleague transferred from Gujarat HC would tell him every day how many days were left for vacation.
SG: A Gujarati can come out of Gujarat but Gujarat never comes out of him (laughs).
SG Mehta concludes his submissions.
SG: I wanted to read the concluding speech of Dr Ambedkar...if time permits, at the end I will.
AG: 61 years ago we had Puranlal Lakhanpal wanting to contest an election. How his dream has come true, we can now contest elections in J&K.
AG: If you look at the constitutional integration process of the rest of the country and compare it to the constitutional integration process of J&K- the historical narration shows that there is no fundamental difference at all.
AG: The political compulsions that happened in case of J&K made a very slight deviation...article 370 is nothing but the outcome of the formalisation of the principles and the procedures for interpretation.
AG: We have to look at this from the text and context and the intent of Article 370.
AG: Article 370 conferring powers on the President is not in the nature of executive power of the president. The executive head is conferred a legislative power- a very extensive and vast power.
AG: The assembly having dissolved itself - it is no longer operative and cannot operate ever...Does the president lose the authority and power under 370(3) and the entire scheme of 370 is lost?
AG: The president didn't require any further assistance from any other authority.
CJI: Does the recommendation require a positive recommendation or...
AG: It's an advice.
CJI: Suppose there is a Constituent Assembly and it recommends to the President - do not abrogate 370, is it open to the president then to override the advice?
AG: That power of recommendation is not available to the assembly. It has to only recommend to render 370 inoperative.
CJI: Recommendation is not just an opinion. When the constitution uses the term "recommendation", it means a positive decision because Art 370 uses different phrases. It uses consultation, concurrence, decision, and recommendation.
AG: Recommendation is not binding on the president. Therefore, it is recommendation. It is not concurrence.
CJI: The hues of the word 'recommendation' is not by itself dispositive of the content of the expression as to whether it is merely and advice or condition precedent.
CJI: I'll give examples of 'recommendation' being used in Constitution- Art 109, 117. 109 deals with money bills. A money bill is not introduced in Rajya sabha, always introduced in lok sabha. After the bill is passed in Lok Sabha, it's sent to Rajya sabha for recommendation.
CJI: Those recommendations aren't binding on the lok sabha. It may either accept them or accept them in part, or reject them. That's what Art 109(2) it says recommendation of Rajya sabha doesn't bind lok sabha.
CJI: Now see Art 117. It says that a money bill cannot be introduced except on a recommendation of president.
CJI: In Art 117, the same word 'recommendation' is used but here recommendation is mandatory. You can't move the bill except on recommendation of president.
CJI: In 370, the recommendation is a condition precedent and condition in terms of time. The recommendation has to be before the abrogation by president. Thus, to say that this recommendation is just an opinion and not binding...
AG: It's still only a recommendation. The necessity of having a recommendation doesn't add any further content to the role of recommendation.
AG: Can a body like the Constituent Assembly of J&K have a final say on Art 370? It is not a constituent body of parliament of India. It doesn't have all attributes and powers
SG: The president of India, being bound solely by a body outside the constitution of India may perhaps not be the correct interpretation of our constitution. Constitution of J&K is beyond and outside our constitution.
AG: The constitutional integrity is the only mantra while framing article 370, everything else revolved around it.
CJI: You're right that this was in the aid of constitutional integration...there was undoubtedly a gradual integration...but there are two ways to look at it- If the proviso to 370(3) cannot apply does it mean substantive power under 370 is denuded or lost?
AG: The answer is no.
CJI: If that power is not lost then is it an unilateral power which can be exercised by the president?
CJI: A 367 was followed since there was an absence of constituent assembly and there was no legislative assembly...but in this process there is a dilution- that is the role prescribed by 370(3). You say that role is mere recommendatory but that doesn't mean it can be overridden.
SG: I have a question which you may consider on the holiday- When constituent assembly was being dissolved, suppose the members would say now with J&K constitution they are like a monarchy and now A 370 can be done away with- would the president have to act in this fashion?
SG: It cannot be for the simple reason that the Debates in the constituent assembly clearly say that 370 was a temporary provision.
CJI: One last word - the wide chasm between absolute autonomy as it existed on 26 Jan 1950 and complete integration as brought on 5 August 2019- that chasm had been substantially bridged by what had happened in between.
CJI: In that sense it was not a complete migration from absolute autonomy to absolute integration. It is obvious that a substantial degree of integration had already taken place between 1950-2019- in 69 years.
CJI: And therefore what was done in 2019, was it really a logical step forward to achieve that integration?