Article 370 case: We have seen difficult times in Punjab, North-East too; J&K cannot be treated differently, says Supreme Court

Various parts of the country have been plagued by militancy and separatism including Punjab and north-eastern States and Jammu and Kashmir (J&K) cannot be singled out in that respect, the Supreme Court said on Tuesday while hearing the case challenging abrogation of Article 370 of the Constitution [In Re: Article 370 of the Constitution]

A Constitution Bench of Chief Justice of India (CJI) DY Chandrachud and Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai and Surya Kant was hearing arguments of the Central government defending its 2019 move to abrogate Article 370 which had conferred special status on J&K.

The bench today asked Central government law officer Solicitor General (SG) Tushar Mehta whether there was a possibility that other States would be bifurcated into union territories like J&K was in 2019.

The SG replied that J&K was a one-off situation that would not arise again.

Justice Sanjay Kishan Kaul then said,

"We have seen very difficult times in Punjab, North-East. Not a one-off instance."

Justice Gavai also referred to the ongoing situation in Manipur.

"You cannot say that it is to be treated differently because it is a border state," Justice Khanna weighed in.

The SG replied,

"See the consistent, repeated situation we are facing since decades. Here, one part of the territory is occupied by Pakistan, PoK. This is a problem faced by the nation since decades and these decisions are not taken as knee-jerk decisions. These are policy considerations."

Today marked the twelfth day of the hearing in the petitions challenging the Central government's move in August 2019 that resulted in the revocation of the special status of Jammu and Kashmir (J&K).

During the course of today's hearing, the Central government submitted that Jammu & Kashmir is a Union Territory only as a temporary measure, and that its statehood would be restored, although Ladakh would remain a Union Territory.

The Supreme Court said that even if the role of the J&K Constituent Assembly with regard to the status of Article 370 is interpreted as a recommendatory one, it does not mean that the Assembly can be overridden by the President of India.

Centre's top law officer, Attorney General (AG) R Venkataramani stated that the abrogation of Article 370 enabled different people to contest elections in Jammu & Kashmir. He added that the move marked the finality of the region's integration into the Union of India.

He argued,

"The argument that during President's Rule you could not have taken irreversible decision without taking resort to Article 368 is not correct. If the understanding of Article 370 was to enable completing of the situation where complete national integration would be over, then that purpose was over. Is the President stopped from taking stock of what has happened under 370(1)(d)? She is entitled to ask this question at any point of time. This provision was meant to work during certain period and now the period has come to an end."

Justice Khanna asked if there was any proclamation in exercise of the President's power under clause 3 of Article 370, which allows the President to cease the operation of the Article, on the recommendation of the Constituent Assembly of J&K. The AG said he would revert to the Bench on that question.

The CJI then posed questions to the AG on the nature of the Presidential orders that enabled the abrogation.

"If the Constituent Assembly recommends to the President that do not abrogate Article 370, then is it open to the President to override the Constituent Assembly?"

The AG contended that the Assembly cannot say that it wants to retain Article 370, as it has only an advisory role.

At this point, CJI Chandrachud pointed out that the word 'recommendation', found in Article 370(3), along with words like 'concurrence' and 'consultation', meant a positive decision and not a mere opinion.

When the AG maintained that the Assembly only had recommendatory powers, the CJI responded,

"There has to be a recommendation from the Constituent Assembly to the President for abrogating Article 370 and this recommendation has to be before the decision to abrogate is taken...Are you saying absence of recommendation is not a problem? And that it is only a sequitur? If the proviso to 370(3) cannot apply, does it mean substantive power under 370 is denuded or lost? If not lost, then is it a unilateral power, which can be exercised by the President?"

The CJI added that in the absence of a Constituent and State Legislative Assembly, Article 367 was resorted to for the abrogation.

"That is why you go to Parliament for a broader consensus, but in this process there is a dilution. That is the role prescribed by 370(3), but now you say that role is merely recommendatory. But mere recommendation does not mean it can be overridden."

SG Tushar Mehta argued that federalism is a part of the basic structure of the Constitution, but federal diversity can still exist within federalism.

"It was the people of the State who were behind integration of the State with the Union of India. Article 370(1) permits the Prime Minister and Chief Minister of State to make change, alteration, choose not to apply any provision and like 35A, create a Constitutional provision only for J&K. Like this, discretion is now used to ensure that such a thing can never happen again. This is where explanation to Article 367 plays a role."

The CJI pointed out that in the instant case, Article 367 is sought to be amended in order to amend Article 370. Article 367 provides that the General Clauses Act, 1897 will apply when it comes to interpretation of the Constitution of India.

The SG said the same has been done consistently and affirmed by the top court.

"370 was the only Article which permitted President to change any other article. So, 367 mechanism was issued in past."

The CJI then asked whether the government could have used Article 367 to amend Article 370.

"This while using 370(1)(d), then are you not changing Article 370? Whereas the purpose of 370(1)(d) is to amend other provisions of the Constitution and so can you use this to amend Article 370 itself? This is the heart of the matter. This needs clarity."

The SG replied saying the that the concurrence required is of the government, which does not mean the Governor of the State.

Justice Khanna opined that 'government' here referred to the Council of Ministers.

SG Mehta replied that the Indian federation has no space for Article 370, and making Article 370(1) permanent will make an unconstitutional provision remain in the Constitution.

"If the proviso becomes otiose, then the main Article does not become otiose at all."

Justice Khanna then said that the Constitution in a democracy will always have limitations, expressed both by the executive and the judiciary.

During the course of the hearing, the SG said that J&K has all the powers of a state.

Justice Khanna then remarked, "Representation of the State is the representation of the will of people, and that was taken away."

The SG in conclusion posed a question for the Bench:

"I have a question which you may think over the holiday tomorrow: When Constituent Assembly was being dissolved, suppose the members would say now with J&K Constitution, they are like a monarchy and now Article 370 can be done away with. So, in this case, would the President have to act in this fashion? Clearly, no. Debates in the Constituent Assembly clearly suggest that Article 370 was a temporary one."

Read our coverage of Day 1 of the hearing here and here.

Read our coverage of Day 2 of the hearing here and here.

Read our coverage of Day 3 of the hearing here and here.

Read our coverage of Day 4 of the hearing here and here.

Read our coverage of Day 5 of the hearing here and here.

Read our coverage of Day 6 of the hearing here and here.

Read our coverage of Day 7 of the hearing here and here.

Read our coverage of Day 8 of the hearing here and here.

Read our coverage of Day 9 of the hearing here and here.

Read our coverage of Day 10 of the hearing here and here.

Read our coverage of Day 11 of the hearing here and here.

[Follow our live-coverage of today's hearing]