Salve: Here, there was a political agreement. There was an agreement embodied in (d) which has concurrent. But if this led to a situation which ultimately prevented integration - the purpose was not to divide constitution. It was a phased integration.
Salve: That brings me to contextual...till the arrangement is in place, unlike other states, where the constitution sets out legislative powers in the VII schedule in absolute terms- and there is an elaborate mechanism to tinker with those.
CJI: In which case, all the limitations infused by the earlier provisions of Art 370 are listed. Could it be to require concurrence for altering decisions of legislative power or for other provisions but for abrogation the article nothing more than recommendation is required.
CJI: In which case, all the limitations infused by the earlier provisions of Art 370 are listed. Could it be to require concurrence for altering decisions of legislative power or for other provisions but for abrogation the article nothing more than recommendation is required.
CJI: There is one consideration - that where the change in the distribution of legislative power was envisaged, the provisions spoke of concurrence, except in the area covered by the IoA. The exercise of the power under Art 370(3) brings complete abrogation of 370.
Salve: This article was very carefully crafted. Within the committee and assembly, there were differences. So we must give meaning to each word. The difference between concurrence and recommendation and framing of proviso...
Salve: This very article uses two separate expressions- "concurrence" and "recommendation". If it was concurrence here, it would have been a much stronger place for Constituent Assembly.
Salve: "shall be necessary" here must then be subject to the principle that if there is a constituent assembly...first of all, the word is 'recommendation', not 'concurrence'; second, that becomes necessary. If you don't have Constituent Assembly, you cannot act.
Salve: Is the president to act only to give effect to desire of the Constituent Assembly or is he to receive the recommendation from Constituent Assembly? The compromise was that he must receive the recommendation.
Salve: One of the articles of that nature is Article 249- it starts by saying that "If the council of states has declared by resolution, then it shall be lawful to make laws".
CJI: But Mr Salve, does the proviso to Art 370(3) does not bring out the same result by the use of the expression "shall be necessary"?
Salve: Perhaps the article would have said- "If the recommendation would have been received from the Assembly, then the President may".
Salve: That's not the frame in which this was drawn out.