On Day 12 of the hearing in a batch of petitions challenging the August 5, 2019 decision to put an end to the autonomy guaranteed to J&K under Article 370 of the Constitution, the Solicitor General of India Tushar Mehta told the court that in the absence of the Constituent Assembly of J&K recommending the abrogation of Article 370 before it lapsed, the President of India gained absolute discretion to abrogate or nullify the effect of Article 370.
"MR Solicitor General, please do not get derailed because this is the heart of the matter," said the Chief Justice of India (CJI) Dr D.Y. Chandrachud.
The Solicitor General of India Tushar Mehta replied with a sweeping gesture of his hand, "Nobody can disturb or derail me without my consent. I am quite accustomed to such interruptions [from the other side]."
Mehta was arguing how Article 370(1)(d) was used to amend Article 367, which replaced the term 'Constituent Assembly of the State' to 'legislative assembly of the State'.
This, in effect, was used to bring an amendment to Article 370 of the Indian Constitution and ended the special status enjoyed by J&K under the Indian Constitution.
According to Article 370(3), Article 370 can be declared inoperative, fully or partially, by the President through a public notification based on the recommendation of the Constituent Assembly of the state.
However, according to Mehta's argument, the Union Government de-operationalised Article 370 through the root of Article 370(1)(d) which allows the provisions of the Indian Constitution to be extended to J&K subject to certain "exceptions and modifications".
Through this, an amendment was made in Article 367 which replaced 'Constituent Assembly of state' with 'legislative assembly' and thereby, allowed the Parliament to exercise the power to repeal Article 370 since J&K was under President rule.
As the Supreme Court entered Day 12 of the In Re Article 370 hearings, Mehta was faced with some tough questions.
"What you [Union government] have done is essentially worse [than merely substituting the term Constituent Assembly with the term legislative assembly]… Article 367 was sought to be amended to amend Article 370."
"By making an amendment in Article 367 to equate the Constituent Assembly [of J&K] with the legislative assembly, are you not amending Article 370 without taking recourse to Article 370(3)?"
These were the questions put by the CJI and Justice Sanjiv Khanna respectively to Mehta after he had argued yesterday that the de-operationalisation of Article 370 is a "right loss".
A five-judge Constitution Bench, comprising, besides the CJI and Justice Khanna, of Justices S.K. Kaul, B.R. Gavai and Surya Kant, is currently hearing a challenge to de-operationalisation of Article 370 through The Constitution (Application to Jammu and Kashmir) Order, 2019 (Presidential Order C.O. 272) on August 5, 2019.
The Presidential Order C.O. 272 ended the autonomy guaranteed to J&K under Article 370 of the Indian Constitution and extended all provisions of the Indian Constitution, including its "modification and exceptions" to apply in relation to J&K.
Mehta reiterated his argument from yesterday that Article 370 is a "drastic provision" and it could never be permanent.
He said: "The visionary fathers and mothers of our Constitution could never have [made] it permanent."
The CJI asked: "Can the abrogation [of Article 370] stand independent of the modification made to Article 367?"
Mehta replied: "Even in the absence of a proviso, the last explanation merely substitutes the term legislative assembly with the Constituent Assembly."
To this, the CJI remarked: "What you have done here is essentially worse… Article 367 [was] amended to amend Article 370."
Mehta responded: "This [act of amending Article 367 through Article 370(1)(d)] has been done consistently and has been affirmed several times by Your Lordships."
"Article 370 is the only Article that permits the President [of India] to change any other Article of the Constitution. The mechanism of Article 367 has been used in the past as well. The only thing that happened on August 5, 2019 is that by using the mechanism of Article 367, the term Constituent Assembly was changed [to legislative assembly]. It is not worse," Mehta averred.
The CJI pointed out: "The 367 mechanism used earlier to change sadar-i-riyasat was with the concurrence of the legislative assembly of J&K."
Mehta clarified: "That was only once and that was done under Article 370(3). This time, it was done under 370(1)(d)."
Can Article 367 be amended without taking recourse to Article 370(3)?
Mehta further clarified: "First exercise [of using Article 367 to add an explanation to clause(1) of Article 370 whereby government of state was recognised as sadar-i-riyasat acting on the aid and advice of the Council of Ministers], as My Lords rightly said, was under Article 370(3) because the Constituent Assembly of J&K was in existence [at that time]. Rest, whenever there were modifications made in Article 367, they were made under Article 370(1)(d), including the present one."
At this point, the CJI posed another question: "If you have to make an alteration in Article 370, abrogate or dilute its status, you have to follow the recourse to Article 370(3). But can you do that using the powers of Article 367?"
The CJI further added: "Can you alter the import of Article 367 itself by a process other than Article 370(3)? What you have done essentially is that you have used Article 367 to amend the proviso to Article 370(3)."
"We did not amend the proviso. The proviso to Article 370(3) is an explanation. That instead of A [explanation] it would be an [explanation] B," Mehta clarified.
The CJI responded: "You can call it an explanation or amendment, but one thing is very clear. The amendment to Article 367 has the consequence of now reading the words 'legislative assembly' in place of 'Constituent Assembly'."
Mehta answered: "This, in fact, was not necessary [pointing out to the replacement of words]. But yes, it was done. Not under Article 370. It was the President under Article 370(1)(d) who added the explanation."
At this point Justice Khanna interrupted: "By making an amendment in Article 367, by equating Constituent Assembly with legislative assembly, are you not amending Article 370 without taking recourse to Article 370(3)? Because Article 370 can only be amended in accordance with the terms of Article 370(3)."
"I understand. But this [referring to the argument Justice Khanna had expounded] has the effect of [making] Article 370 permanent because there is no Constituent Assembly of J&K now," Mehta pointed out.
Since a recommendation of the Constituent Assembly of J&K was a prerequisite for an amendment under Article 370(3), Mehta wondered if relying on the argument Justice Khanna had expounded would mean the Article could "never be modified".
However, the CJI, not being satisfied with Mehta's thesis on the point, raised another concern: "The argument of the other side is this: You can take the recourse of Article 370(1)(d) in a situation where you have to amend any other provision of the Constitution, other than Article 370."
The CJI added: "It is very clear [from the provision of Article 370, which provisions can be amended through the root of Article 370(1)(d)]."
Mehta replied: "But [that provision] does not say so!"
To this the CJI responded: "Article 370(1)(d) refers to any other provisions of the Indian Constitution. Other provisions of the Constitution, according to you, would include Article 367? Possible. We will test that hypothesis."
He continued: "But can you use Article 367 to amend Article 367 to bring an amendment to Article 370? If you do that, while exercising the powers under Article 370(1)(d), are you not really doing that to amend Article 370 itself because the only provision that the Constitution created to amend Article 370 is Article 370(3).
"What you are doing is, according to the petitioners, you are using the amendment power of Article 367 and applying the provisions of Article 370(1)(d) to bring about an amendment to Article 370 itself," the CJI proposed.
The CJI further said: "Whereas, the purpose of Article 370(1)(d) is to amend some other provisions of the Constitution. True, Article 367 is another provision of the Constitution. But can you use that to amend Article 370 itself?"
Mehta tried answering that the consequence of interpreting Article 370 in the manner suggested by the petitioner is that it would give the provision a permanent character.
He said: "In the absence of a Constituent Assembly of J&K, this [Article 370] can never be modified. Article 370(3) can never come into operation. Article 370 gets the status of permanent provision. Please read the provision in totality."
Mehta added: "Even [amendment through] the Article 368 route cannot be done if that [the petitioner's submission] is the meaning given. Then, Article 370 is completely unalterable."
At this juncture, Justice Khanna asked: "Could the legislative assembly of J&K make a recommendation in terms of Article 370(1)(d) saying that Article 367 equates 'Constituent Assembly' with 'legislative assembly'?"
Mehta quickly answered: "If it is an amendment, then the legislative assembly cannot do so."
"Just think about it and then answer," Justice Khanna remarked.
Mehta told the court that he is conscious of the fact that this is the heart and soul of the matter. But he added that the court must consider that the route of Article 367 has been taken to amend Article 370 previously as well.
However, the court was quick to respond that all those instances were when the concurrence or consultation of the legislative assembly of J&K was sought.
In fact, the CJI pointed out that 'consultation or concurrence' of the legislative assembly is significant and that is what makes the present interpretation different from the rest.
Mehta told the court that this interpretation is no different. He said: "This is also with concurrence. The only difference is that the governor of J&K steps into the shoes of the State government."
Justice Khanna averred: "Concurrence of the government means the concurrence of the Council of Ministers of [the legislative assembly of J&K]."
Mehta responded: "There are several instances of exercise of Article 370(1)(b) when J&K was under President's rule with concurrence of the governor [of the State]."
Yesterday, Mehta had pointed out that under The Constitution (Application to Jammu & Kashmir) Amendment Order No. 39, 1952 (C.O. 39), the President of India recognised the "Constituent Assembly" of J&K as the "legislative assembly" of the state for the purpose of election of the President of India.
Today, the CJI referred to that argument and asked: "At the time when there was no legislative assembly, the explanation to Article 370(3) was amended to provide that the Constituent Assembly shall itself be treated as legislative assembly.
"The Constitution of J&K had not been framed at that time and that is why there was no legislative assembly in the State.
"So, according to you [Union government], the flipside now is when there is no Constituent Assembly, we can change the Constituent Assembly to legislative assembly," the CJI asked.
Mehta pointed out that this is to "democratise [the integration of people of J&K with their brothers and sisters in the rest of India]" and nothing else.
Justice Khanna offered an explanation to the interpretation of Article 370(3) pursued by Mehta.
Justice Khanna said: "The second answer could be that by amending Article 367, you are not really amending Article 370 because Article 370(3) procedure has to still apply to abrogate or nullify Article 370.
"Suppose, Article 367 was amended in terms of Article 370(1)(d) with the concurrence of the state government. The second step would have been to make a recommendation to abrogate Article 370. This would have really passed.
"Nobody would have probably noticed. The other side [petitioners] would not have been here, except some of them. Is this route permissible?"
Mehta answered: "Your Lordships is absolutely right. That is my answer."
But he added: "So, the Constituent Assembly having chosen to be dissolved without recommending [the abrogation of Article 370], it has left it to the absolute discretion of the President of India … to ensure that there is democratisation of action. This is a one-of-its-kind provision.
"We can read that in the absence of the Constituent Assembly and its recommendation, the provision [Article 370] goes, it becomes redundant. It becomes otiose! This again is a pointer that it was intended to be temporary."