Harish Salve: "...repeated reference to basic structure (of Constitution) is surprising... constitutional amendments are tested with reference to basic structure doctrine ....Article 370 is part of the original pristine constitution and that conferred the power to disapply the constitution..".
Solicitor General Tushar Mehta:
"I would like to make a statement, Central government is ready for elections in any time now. Till now updating of voters list was going on and is substantially done. First election will be of panchayat elections, District development elections has already taken place. Leh elections are over. Kargil elections are at the end of the next month."
However, the Solicitor General also said, "I am unable to give an exact time period for the conversion to full statehood.. but union territory is only a temporary phenomenon."
He also told the five-member Constitution bench headed by CJI D Y Chandrachud,
"Only in Jan 2022, 1.8 crore tourists visited and in 2023 1 crore tourists have been there.. these are the steps which are being taken by the centre.
The Centre can only take these steps till it is a UT. The Centre is ready for elections but the state and Election Commission (in Delhi) have to decide when to hold it and which level of elections that is Panchayat, district, etc is to be held first."
SG also said, "Terrorist instances have reduced by 45.2% compared from 2018 to 2023.
Infiltration reduced by 90%. Law and order issues like stone pelting etc reduced by 97%. Security persons casualty is reduced by 65%. Stone pelting instances in 2018 was 1767 cases. It is nil now. Youth has been gainfully employed now and earlier they were misled by secessionist forces."
"Organised bandhs etc in 2018 there were 52 and now it is nil. UT is a temporary phenomenon. You can see what developments are taking place for it to become a complete state. For the purpose of making UT a complete state.. the investment proposals from other than central scheme is Rs 78,000 crore and till now actual investment has been 2153 crores. several e-initiatives has also been taken place.
At one point there was resistance from counsel Kapil Sibal, who said, : "If you have 5,000 people in house arrest and with section 144 imposed there cannot be any bandh.. so let us not get into this... otherwise we have to counter all of this"
At this CJI Chandrachud countered him: What he (SG) is saying that roadmap to full statehood will take some time.. UT is not a permanent feature and there cannot be a timeline.. but these are the steps they are taking..
but we know these facts cannot be an answer to the constitutional question."
Sibal continued: "The drugs issue which is plaguing J&K is enormous and there is enormous rate of unemployment in the UT. Problem is this is being televised... and all of this is on record.. they make it like look what all govt is doing..".
SG Mehta joins the issue by asserting : "Development is never a problem..."
CJI says, "The constitutional issue will be dealt only with the constitutional angle and not on the basis of the policy decisions.."
Solicitor General Tushar Mehta then said, "My friend (Sibal) says some are under house arrest and that is why no bandh... so correct people are under the house arrest.."
Sibal retorted sharp: "....5000 were under house arrest let us not make a mockery of democracy.. section 144 was imposed and internet was shut off... this court has recognised all of this as well.. people could not go to hospitals even.. let us not talk about bandhs etc."
Then Attorney General R Venkataramani makes his submission: "President was to follow a process which is close to a non legislative function of the constituent assembly and that is where substitution of legislative assembly comes ...the sequence has to be seen when president is taking the call looking at what J&K has suffered and what have been the complications so far... when doctrine of impossibility stares one at their face.. they are not paralysed to take action."
He also said, "This is 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 Article 370 and in that case 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?
"There may be some broad standards where fundamental values aren't breached but if there is something that you have to negotiate, even with the breach of fundamental values what do we do and how do we answer if it is a political question or a judicial question in this case before us.
AG also stated: "When there are submissions of substituting the legislative assembly by Legislative Assembly, we are looking at the non legislative functions of the legislature.. for assuming also if the the Constituent Assembly had recommended to the President before 1957, President would have acted in this fashion only.
"The determination of Article 370 must occur at some time, notwithstanding what happened in history and if that determination is in more than one way, then the assumption in larger interest has to be taken.
"President is not excluded from taking stock and that is inherently present in article 370 and thus it will be open for the president to take stock of all actions under 370 and the issues that loom large over the nation," the AG said.
Today, on Aug 31, senior advocate Harish Salve also appeared.
He said, "....it has been submitted that president could act only when there is a recommendation by the constituent assembly. if there is a constituent assembly then you cannot act in vacuum.. we have to discern legislative intent from the language... is the president to act only to give effect to desire of constituent assembly... or get a recommendation from it.. obviously only a recommendation if the constituent assembly exists.."
Mr Salve also said, : "....while distribution in the fields of legislation was put as concurrence of the govt of the state at the same time sub clause 3 uses the term recommendation."
At this juncture CJI Chandrachud intervened and said, "There is one counter... when a change in distribution of legislative power was concerned ....concurrence was there.. the provisions spoke of concurrence, except in the area covered by the Instrument of accession. The exercise of the power under Art 370(3) brings complete abrogation of 370."
Salve continued: Salve: "History of the provision tells us that it will be difficult to find logic in this provision because much of it was political compromise.. why was constituent assembly even there.. just to assuage some ruffled feathers.. one cannot search too much logic.. as a matter of constitutional interpretation of such political provisions.. this court must give it the widest meaning possible."
Salve further maintained, "Please look at one important nuance of this article. In sub clause D, such of the other provisions of the constitution shall apply.. this does not require concurrence.. if you see 370(1)(b)... b1 requires consultation.. this dichotomy was built in... ".
CJI then said, "The Instrument of accession requires consultation, other than those governed by instrument of accession requires concurrence".
Salve, however, said, "....when it comes to the instrument of accession the last word stays with the union. why is dichotomy is the first and second proviso is something lordship has to reflect over."
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