Attorney General R Venkataramani told Supreme Court's Constitution Bench on Article 370 abrogation vis-a-vis the erstwhile state of Jammu and Kashmir :
"The president could have said that without taking recourse to any other action, I could myself render 370 inoperative". And then he says,
"But the President doesn't adopt that course. She wants to be guided by a process which would approximate to the non legislative functions of legislative assembly".
AG also says, "There is a void, there is an impossibility of complying with the proviso of clause (3) and how to tackle that void?"
During Aug 31 hearing, senior counsel Harish Salve, who made the appearance for the first time in this case, said: "There is the underpinning of political compromise in Kashmir... they reserved the power in the President to 'disapply' the provision in total.. this is a unique provision"
Salve also said, "....there is a compromise and that the accession is complete....it is part of India and it is an Indian state.... now there is a political compromise and sub Article 3 is to put an end to the political compromise." He further stated before the Bench, "...Jurisdiction of this court under article 32.. should it extend or not extend to J&K.. all such provisions have to applied with adaptation.. sub article 3 is the answer of how it resulted in complete accession
...reserving the right to the President the power to disapply this article and for this there cannot be concurrence".
A notable takeaway from Thursday (Day 13/Aug 31) hearing is the assertion by the Supreme Court.
Even as the Central government told the Court how the abrogation has benefited the region, the apex Court said that the constitutional issue will not be dealt with on the basis of policy decisions.
Another important facet also came up during hearing.
Senior Advocate Rakesh Dwivedi, who appeared for an intervenor in support of the abrogation of Article 370, submitted that there is a presumption of validity of the move to revoke the special status of Jammu & Kashmir.
"If two views are possible, then the one which sustains the exercise of power has to be preferred...What your lordships deal with today is the constituent power which is laced deeply with elements of acts of State."
CJI D Y Chandrachud replied that modifications can only take place within the Indian Constitution and it cannot happen with the J&K Constitution.
"The continued existence of States is integral to federalism in India," the CJI said.
Solicitor General (SG) Tushar Mehta cited the increased tourism footfall and investment coming into the province after the abrogation.
The CJI, however, made it clear,
"We know these facts cannot be an answer to the constitutional question...The constitutional issue will be dealt only with the constitutional angle, and not on the basis of the policy decisions."
Attorney General (AG) R Venkataramani argued that in issuing the orders enabling the abrogation, the President was to follow a process that is close to a non-legislative function of the Constituent Assembly.
"The sequence has to be seen when the 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", reports Bar & Bench.
"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. Thus, it will be open for the President to take stock of all actions under Article 370, and the issues that loom large over the nation."
Senior Advocate Harish Salve appeared for an intervenor in support of the abrogation.
"While distribution in the fields of legislation was put as concurrence of the government of the State at the same time, sub-clause 3 uses the term recommendation," he said trying to drive home the point that the government could not act in a vacuum if there was a Constituent Assembly.
During the hearing, importantly, AG Mr Venkataramani said there are matters...
"I do not know whether these questions can be answered through a mathematical formula."
He maintained, "It's 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 A 370?
"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?
You have some broad standards where fundamental values aren't breached."
But, he said, "...if there is something that you have to negotiate, even with the breach of fundamental values what do we do? Is it a political question or a judicial question?"
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| AG: Venkataramani |
AG: When you talk of substitution of a legislative assembly by Legislative Assembly, we are looking at the non legislative functions of the legislature. If the Constituent Assembly had recommended to the President before 1957, it would have done the same job.
"The determination of Article 370 must occur at some time, notwithstanding whatever happened over a period. If determination can occur in more than one way, whichever is the way that will advance the larger interest...", he said.
He then said, "There is only one solitary interpretation - that it is to aid the constitutional integration process. Whatever has happened even thereafter is to be seen in the light of that.
If any deviation occurs, it is open to correction by the President."
ends
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