"No fundamental difference" b/w constitutional integration of J&K and integration of rest India, Attorney General on Article 370 hearing

 Attorney General R Venkataramani said in Supreme Court during hearing on abrogation of Article 370 :

 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.  

He also said, "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". 

He also said, "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".

Venkataramani said, "We have to look at this from the text and context and the intent of Article 370".

"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," he submitted.  

The bench comprises Chief Justice of India DY Chandrachud, and Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant.

Over 20 petitions are pending before the Supreme Court challenging the Central government's 2019 decision to abrogate Article 370 of the Constitution, which resulted in the revocation of Jammu and Kashmir's special status. The erstwhile State was subsequently bifurcated into two Union Territories.

When the matters were listed in March 2020, a five-judge Constitution Bench of the Supreme Court had decided not to refer the batch of petitions to a seven-judge Constitution Bench, despite some petitioners seeking such a reference.

On August 2, the top court began final hearings in the matter with a question to the petitioners about whether the Constitution makers and Article 370 itself envisaged the provision as a permanent or temporary one.

The Court sought to know whether the Article was envisaged as a permanent provision merely because the Constituent Assembly of Jammu and Kashmir (J&K), which was empowered to recommend the deletion of the provision, ceased to exist in 1957.

On August 4, the top court asked whether the Article would become part of the basic structure of the Constitution if it is accepted that Article 370 of the Constitution became permanent when the Constituent Assembly of Jammu and Kashmir was dissolved in 1957, says 'Bar and Bench'.   

On August 9, the Court said that in a Constitutional democracy like India, the opinion of people on public issues is sought through established institutions and not referendums as in the case of Brexit in the United Kingdom.

The top court, on August 10, remarked that in no way was the integration of Jammu and Kashmir with India in 1948 conditional. The integration was absolute and complete in every which way, remarked CJI Chandrachud.

On August 24, the Central government began its arguments in Supreme Court defending its 2019 move to abrogate Article 370 of the Constitution.

Solicitor General (SG) Tushar Mehta, who represented the Central government, invoked Pandit Jawaharlal Nehru and stated that the first Prime Minister had said that India would not recognize rulers of princely States who joined India as having any 'divine' rights.

On Aug 28, the Court orally observed that Article 35A of the Constitution, which was repealed in 2019, effectively conferred special rights on the people of Jammu and Kashmir and, in the process, curtailed certain fundamental rights of persons domiciled in the rest of India.

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 Chandrachud: 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.

Now see Art 117. It says that a money bill cannot be introduced except on a recommendation of president.

He pointed out that 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.

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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...

Attorney General Venkatarami still maintained, "It's still only a recommendation. The necessity of having a recommendation doesn't add any further content to the role of recommendation." He then said,

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.  

Solicitor General said,

: 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.

He said, "We share borders with at least four countries, all of which may not be friendly to put it mildly. 

Justice Kaul shot back: 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. ....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, he stated. 

Solicitor General: 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 Chandrachud: 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.  Tomorrow if there is a scenario that each of these states face this problem... 

He however, said - "I understood your argument that these border states are their own category. How do you distinguish between J&K with any other border states?"

Solicitor General: "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."

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."

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.  

During hearing, SG Mehta asserted: "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.

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"

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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 state extends to all matters except those in respect of which parliament has a power to make laws under Indian Constitution.

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.

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 Chandrachud also said: "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...".

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. In that sense the J&K constitution was always meant to be subservient to India... it's not a document which can be equivalent.