Article 370(3) was a fail-safe in case Article 370(1) did not function as intended for integration of J&K with India, Harish Salve on Day 13 of hearings

On Day 13 of the hearings 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, Attorney General for India R. Venkataramani, and senior advocates Harish Salve and Rakesh Dwivedi argued that the power of the President of India to do away with Article 370 is unfettered and absolute.

AT a certain point on Day 13 of In Re Article 370 hearings, senior advocate Rakesh Dwivedi, arguing on behalf of an intervenor, offered a tangential lesson in history.

Churchill was a great leader, but when the Atlantic Charter was signed between him and Roosevelt, a question was posed to him: What about India?” Dwivedi said.

Dwivedi continued with a smile, “Churchill replied that the respect for freedom and sovereignty that the charter envisions does not apply to India.”

So nations have to sometimes make certain choices about the recognition of freedom and sovereignty,” he concluded.

A five-judge Constitution Bench, headed by the Chief Justice of India Dr D.Y. Chandrachud and also comprising Justices Sanjay Kishan Kaul, Sanjiv Khanna, B.R. Gavai and Surya Kant, is hearing a batch of petitions challenging the de-operationalisation of Article 370 and bifurcation and retrogression of statehood of Jammu and Kashmir (J&K).

The Constitution (Application to Jammu and Kashmir) Order, 2019 (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 “exceptions and modification” to apply in relation to J&K.

The Jammu and Kashmir Reorganisation Bill, 2019 bifurcated the state into two Union territories, J&K and Ladakh wherein the former retained legislative assembly.

Attorney General of India’s submissions

Attorney General of India R. Venkataramani continued his submissions on the construction of Article 370 and the intent of provision.

He began his arguments by referring to Bertrand Russell and his famous philosophical investigation where he talks about a signpost.

Russel asks how does one know what a signpost means? Venkataramani answers that according to Russel, there must be a practice of using signposts and an understanding that develops using the signposts over the years.

Venkataramani added: “We know without the practice and understanding the signpost means nothing.”

He drew a corollary with this principle and said that it has been used in various circumstances to mean that if there is a certain understanding of law on the basis of practice, then interpretation follows a certain trajectory.

However, when there is a lack of understanding or conflict in understanding on the basis of practice, interpretation follows another trajectory. 

Therefore, according to Venkataramani, we must go into the minds of the original authors of Article 370 and see what practices regarding Article 370 were developed over a period of time to understand how the Article has to be interpreted.

Venkataramani referred to the Desuetude doctrine. 

The doctrine suggests a statute or provision that has fallen into disuse for a long period of time becomes legally inoperative.

In the context of Article 370, he argued that it is not enough to simply look at the text and the context to arrive at a meaning because the court is confronted by the practice of Article 370; whether in conformity with the original intent or in deviation from it.

Venkataramani said: “So, the court is called upon to look at the age of the text, the use of the text, and how in present times the President of India understands both, that is, the original text and the use of the text. The President also understands what he would like to do with the text”.

Continuing from his earlier submissions in which he had suggested a proposition that the President of India under Article 370 is not precluded from ‘taking a stock of what Article 370 has done over a period of time’.

Today, Venkataramani said that the power of taking stock is written into Article 370.

Presumptions against absurdity

In this context, he proposed certain constructions against the principle of absurdity which the President must take into account.

One of the first propositions against the presumption of absurdity is that one must avoid an impossible result.

Another proposition follows is that an unworkable or impracticable result must be avoided.

Third, one must avoid an anomalous or illogical result.

Lastly, a pointless or futile result must also be avoided.

Venkataramani referred to a In Re Presidential poll judgment of 1974. The case concerns an Article 143 (power of the President to consult the Supreme Court) reference in the context of holding an election for the President of India.

In that case, the issue before the Supreme Court was whether the election to fill the vacancy caused on the expiry of the term of the office of the President of India must be completed before the expiry of the term of the office notwithstanding that the legislative assembly of Gujarat was dissolved.

He read some of the paragraphs of the judgment. 

In the judgment, the court observed that: “The law does not compel one to do that which one cannot possibly perform. Where the law creates a duty or charge, and the party is disabled from performing it, without any default in him, and has no remedy over it, there the law will in general excuse him.”

The judgment further states: “Therefore, when it appears that the performance of the formalities prescribed by a statute has been rendered impossible by circumstances over which the persons interested had no control, like the act of God, the circumstances will be taken as valid.”

The reference to this judgment was made to consider if there is an impediment attached to the powers of the President under Article 370(3) after the Constituent Assembly of J&K ceased to exist.

Article 370(3) reads as: “(3) Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify:

Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.”

Here, Venkataramani stated that one thing is clear, no text once enacted can efface itself out. The only principle to which that happens is the principle of expressed or implied repeal.

Venkataramani pointed out that Article 370(3) remained an important part of reaching that exit stage of abrogation. But the question he posed is: How does one reach the exit?

He suggested a few possibilities. 

First, which he noted might be an extreme consideration, is that since the Constituent Assembly of J&K no longer exists, the proviso to clause (3) of Article 370 dissolves itself along with the assembly.

Second, he suggested that if one does not want to follow this route, then the President of India could have used his powers under clause (3) to make the whole provision inoperative.

Third, Venkataramani suggested recourse to Article 367 through Article 370(1)(d).

The Constitution (Application to Jammu and Kashmir), Order, 2019 (Presidential Order C.O. 272) added Clause (d) of Article 367(4) which says that the reference to “Constituent Assembly of the State” in Article 370(2) of the Constitution would be read as “legislative assembly of the State” for the purpose of Article 370(3).

Through this, Venkataramani explained, the President of India extended the provisions of the Indian Constitution with modifications to find out if any assistance can possibly be sought from anybody that can fit in within the “framework of the Constituent Assembly of J&K”.

The Attorney General submitted that the President of India has taken a recourse to this route on two occasions earlier. However, he did not disclose the two instances where a recourse to this route has been adopted.

Further, Venkataramani supported his argument by stating that the Indian Constitution includes a large number of provisions which talk about non-legislative functions of the legislature.

He said that functions like passing a resolution or giving recommendation is a non-legislative function. Therefore, according to him, the requirement of ‘recommendation’ under proviso to clause 3 of Article 370 was a non-legislative function.

Venkataramani called this recourse adopted by the President of India as closely approximating the non-legislative functions of the Constituent Assembly of J&K.

He added: “That is where the substitution of the legislative assembly comes in”.

According to him, once a non-legislative power of the legislative assembly is exercised by the President of India under Article 356(1)(b), the Parliament of India is empowered to take stock of what it can do to Article 370. 

Article 356(1)(b) states that during President rule, the President by proclamation may declare that the power of the state legislature may be exercised by or under the authority of the Parliament.

Harish Salve’s submissions

Senior advocate Harish Salve, appearing for an intervenor, began his submissions on the construction of the proviso to clause (3) of Article 370.

He said that three aspects should be looked at: textual, contextual and historical.

Salve told the court that looking at the Constituent Assembly debates of Dr Gopalaswami Ayyangar and the draft Article 306A (which later became Article 370), one thing is crystal-clear— that the provision reflected an element accommodating certain political compromises within the constitutional framework.

Now, as the Article stands before it was de-operationalised, its words must be given plain meaning, he added.

By plain meaning, he meant that the text must be given textual meaning.

Salve told the court that under the textual aspect, what is of great significance is the idea that the President could only act to give effect to the recommendation of the Constituent Assembly.

He added: “Then that would have made a precondition to the exercise of power. Perhaps the Article would have said ‘if a recommendation is received from the Constituent Assembly then the President may [exercise his powers]’.”

Salve said that the court, during the course of the hearings, has referred to other Articles where a reference to ‘if’ is made.

For instance, Article 249 of the Indian Constitution.

Article 249 concerns the power of the Parliament to legislate on matters under List II of the Seventh Schedule in national interest.

Salve said that this was not the frame in which Article 370 was drawn out.

At this point, the CJI intervened and said that the use of the term ‘shall be necessary’ under Article 370 does not bring out the same result (that an ‘if’ would bring out).

Salve replied that the expression ‘shall be necessary’ in the proviso to Article 370(3) should be subjected to the principle that if there is a Constituent Assembly of J&K, then its recommendation is necessary.

However, he added that the proviso uses the term ‘recommendation’ and not concurrence.

Salve explained that the political compromise in Article 370 was that the President has to receive a recommendation of the Constituent Assembly, if there exists an assembly. 

He pointed out that Article 370 uses three different terminologies: concurrence, consultation and recommendation.

Salve made a distinction between concurrence and recommendation. He pointed out that with concurrence, the role of the Constituent Assembly is much stronger.

The CJI responded: “One countervailing consideration you have to bear in mind. Where a change in legislative powers is envisaged, the provisions spoke of concurrence except the areas covered by the instrument of accession

The exercise of the proviso to clause(3) of Article 370 brings about the complete abrogation of the status. In this case, all the limitations introduced in the earlier clauses of Article 370 are lifted. 

Could it be the intent that you need concurrence of altering a decision of the legislative power but for abrogating Article 370, nothing but a mere recommendation?”

Through this line of argument, the CJI wanted Salve to interrogate the notion that ‘concurrence’ was stronger than ‘recommendation’.

Salve replied that he would answer this question through a contextual reading of Article 370.

He first pointed out that unlike other states, for whom legislative powers are mentioned in List II of Seventh Schedule, J&K’s legislative powers came from the Instrument of Accession.

He added that the purpose of Article 370 was not to create a permanent divide in the Constitution of India.

Elaborating on this point, he said that there was a safety valve in Article 370(3): “If the political compromise in Article 370(1) fails to achieve the purpose, at any time it may become necessary to pull the plug. Article 370(3) is that plug.

The Constitution gave the President of India the powers to do away with this special arrangement. Your Lordships have seen the entire history; how phase by phase this [divide] has been narrowed down.”

Salve emphasised that to understand the context of Article 370, the historical background of the drafting of Article 370 must be taken into consideration.

Summarising his arguments on contextual interpretation, Salve said that it was because J&K was a border state that compelled the State to agree to the special arrangement. 

He also added that the history of Article 370 shows that the use of different terms like concurrence, consultation or recommendation may not be logical because the provision was ultimately a political compromise.

However, he added that concurrence of the State is meant to continue forever as there will always be a state government.

Salve concluded by stating: “Disapplying Article 370 itself comes under Article 370(3). That is why perhaps the framers of the Constitution of India scaled it down to a recommendation instead of concurrence.

For that too, they put it in a proviso, till the life of the Constituent Assembly (of J&K). The whole idea of the Constituent Assembly was to accommodate a political compromise of accession.”

Rakesh Dwivedi’s submissions

Dwivedi, appearing for the intervenor advocate Ashish Upadhyay, told the court that he differs from the petitioners on the point of nature of powers vested in the President under Article 370.

Dwivedi said that while senior advocate Kapil Sibal argued that the powers vested with the President is executive and Salve argued that the powers are legislative, according to him the powers are constituent powers.

He further clarified: “This power is much wider than the powers exercised under Article 368.

As per Dwivedi, these powers were vested with the President for special reasons that existed when Article 370 was drafted.

He explained that the first original constituent powers was to draft a constitution. The second form of constituent powers is ‘ancillary constituent powers’ which is reflected in provisions like Articles 238, 306, and 370.

The purpose of the three provisions is to give some time for states to bring them at par or align them with other states of the federal union.

The third type of constituent power is the power to amend the Constitution under Article 368.

Dwivedi told the court that what it is dealing under Article 370 is the constituent powers laced with elements of an act of a State.

He justified his use of the expression ‘act of a State’ because without the proviso to Article 370(3), Article 370 could have been done away with anytime through an act of the State.

He said: “So, the constitution-makers, instead of leaving it for the State to act supra constitutional to annex a state, provided a procedure to avoid that happening. So far that when it happens, it happens with consultation, concurrence or recommendation.

After a period of time lapses, when it is felt by the people as a whole that the time is right, J&K will stand at par [with the rest of the states]. Who decides when the time is right?”

He had already answered his own question before asking it: the people as a whole or as the Solicitor General of India Tushar Mehta put it on Day 10 of the hearing, “We, the people.”

The CJI asked for clarification on why the power of the President has been referred to as ancillary constituent powers. 

Dwivedi answered: “I say ancillary for this reason— that it is a continuation of the process which began with the insertion of Article 370.”

Dwivedi said the recommendation of the Constituent Assembly of J&K, which is a temporary body, can never be binding since it is the President that sits as a superior body. 

Dwivedi told the court that the power exercised by the President of India under Article 370(3) has an impact on the Constitution of J&K as when “one expands the other contracts”.

According to him, this power of the President has a direct impact or reduction on the “playfield” for the J&K Constitution.

At this point, the CJI remarked: “Very significantly, any modification cannot be brought through the Constitution of J&K. It has to be about within the rubric of the Indian Constitution.”

Dwivedi extolled one and all to examine Article 370(3) sans emotions or sentiments.

There are sentiments and emotions on both sides regarding Article 370, but those emotions must be buried now, they must be cremated,” Dwivedi concluded. 

The Leaflet