Article 370 Case | Substantial Integration Of J&K Had Already Taken Place In 69 Years; So Was 2019 Decision Really A Logical Step? CJI Asks [Day 12]

While concluding the twelfth day of the Article 370 case hearing, Chief Justice of India DY Chandrachud, who was presiding over the Constitution bench, raised a significant question regarding the abrogation of the special status of Jammu and Kashmir.  He pointed out that various Constitutional Orders issued over the years have incrementally applied the provisions of the Indian Constitution to Jammu and Kashmir. Therefore, "substantial integration" had taken place over sixty nine years. In this context, were the steps taken by the Union Government in August 2019 "a logical step" to achieve integration, he asked.

As the bench was about to rise, the CJI articulated :

"One last word - the wide chasm between absolute autonomy as it existed on 26 January 1950 and complete integration as brought on 5 August 2019 - that chasm had been substantially bridged by what had happened in between. In that sense, it was not a complete migration from absolute autonomy to absolute integration. It is obvious that a substantial degree of integration had already taken place between 1950-2019- in 69 years. And therefore what was done in 2019, was it really a logical step forward to achieve that integration?"

The twelfth day was also witnessed certain important queries raised by the Bench regarding the manner in which Article 370 was abrogated (detailed report can be read here). The bench hearing the matter also comprised Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant.

Was 'Recommendation' By Constituent Assembly A Mandatory Condition To Abrogate Article 370?

An interesting point of contention that arose during the Union's arguments was whether the recommendation of the Constituent Assembly of J&K was necessary to abrogate Article 370. It may be noted that as per Article 370(3), the President may declare Article 370 as inoperative provided that it is done with the "recommendation of the Constituent Assembly of the State".

The issue first arose during SG Mehta's arguments when he stated that even if the Constituent Assembly had been in existence, it would have a limited role to play as its decision would be only "recommendatory" in nature and the President could have taken any decision even if the Constituent Assembly did not agree to the same. 

CJI then stated : "That cannot be correct because look at the way the Article is made - "recommendation...shall be necessary"."

SG Mehta clarified that here, what was mandatory was that the President takes a recommendation from the Constituent Assembly. However, such a recommendation was not binding. "Otherwise the constitution would have said, act accordingly. The Constitution of J&K will always be subordinate to Indian Constitution because the J&K Constituent Assembly's very creation was by Article 370," he added

A similar line of argumentation was made later by Attorney General for India Venkataramani who argued that the dissolution of the Constituent Assembly of J&K cannot be interpreted to mean that the President's hands are tied forever.  Seeking clarification, CJI asked–

"Does the recommendation require a positive recommendation or what?"

The AG responded by stating that the recommendation was merely "an advice" and that the power of recommending to keep Article 370 operative was not available to the assembly. "It has to only recommend to render 370 inoperative," said the AG.

To this, the CJI said–

"Recommendation is not just an opinion. When the constitution uses the term "recommendation", it means a positive decision because Article 370 uses different phrases. It uses consultation, concurrence, decision, and recommendation."

The AG asserted that 'recommendation' was not binding on the president. "Therefore, it is recommendation. It is not concurrence," he added.

CJI then pointed out that whenever the recommendation is not binding, the Constitution specifies it expressly. He elaborated :

"Article 109 deals with money bills. A money bill is not introduced in Rajya Sabha. It is always introduced in Lok Sabha. After the bill is passed in Lok Sabha, it's sent to Rajya Sabha for recommendation. Those recommendations aren't binding on the Lok Sabha. It may either accept them or accept them in part, or reject them. That's Article 109(2). It says recommendation of Rajya Sabha doesn't bind Lok Sabha. Now see Article 117. It says that a money bill cannot be introduced except on a recommendation of president. In Article 117, the same word 'recommendation' is used but here recommendation is mandatory. You can't move the bill except on recommendation of president."

Using this as an example, the CJI stated that under Article 370 the 'recommendation' to be provided was a condition precedent to the abrogation and also a condition in terms of time, which means that the recommendation had to be made before the abrogation was carried out by the president. 

The AG remained set on his point and argued that it was still only a recommendation that was required. He added–

"The necessity of having a recommendation doesn't add any further content to the role of recommendation. Can a body like the Constituent Assembly of J&K have a final say on Article 370? It is not a constituent body of parliament of India. It doesn't have all attributes and powers."

The SG added to this–

"The President of India, being bound solely by a body outside the Constitution of India may perhaps not be the correct interpretation of our constitution. Constitution of J&K is beyond and outside our constitution."

However, the bench did not seem receptive of the argument that the J&K Constituent Assembly was an "outside body". Justice Sanjiv Khanna pointed out that the Constituent Assembly of J&K finds a mention in Article 370 itself. CJI also pointed out that the Centre used the Article 367 route to change the meaning of "Constituent Assembly" as "Legislative Assembly". So would not this indicate that the Centre itself was conscious of the necessity of the recommendation of the Constituent Assembly to abrogate 370, asked the bench.

The discourse over the issue continued with the CJI asking–

"If the proviso to Article 370(3) cannot apply, does it mean substantive power under Article 370 is denuded or lost? If that power is not lost, then is it a unilateral power which can be exercised by the President? Article 367 was followed since there was an absence of constituent assembly and there was no legislative assembly but in this process there is a dilution- that is the role prescribed by Article 370(3). You say that role is mere recommendatory but that doesn't mean it can be overridden."

The SG responded to this question by means of another question. He said–

"I have a question which you may consider on the holiday- When constituent assembly was being dissolved, suppose the members would say now J&K constitution is like a monarchy and now Article 370 can be done away with- would the president have to act in this fashion? It cannot be for the simple reason that the debates in the constituent assembly clearly say that Article 370 was a temporary provision."

Can Parliament Convert An Existing State Into A Union Territory?

Another discourse which arose during the arguments was if the Parliament had the power to convert an existing Indian state into a Union territory. For context, Article 3(1) provides that the Parliament can form a new State by separation of a territory from any State or by uniting two or more States or by uniting any territory to a part of any State. Later, by an amendment, the word 'state' was declared to also include 'union territories'. In this context, the Supreme Court bench asked if Article 3(1) contemplated a situation where an entire territory of a state could be turned into a Union Territory? The SG clarified that two UTs had been carved out of the State, namely, J&K, and Ladakh and there was nothing that prohibiting the same.

Justice Kaul asked–

"Suppose you had not carved out Ladakh? Then the power would be to convert the whole state into a UT. How do you contemplate converting a state into UT? And if that can't be done can you do that by carving out a UT and making other also a UT?"

The SG stated that as per his reading 'separation' was necessary in such situation. This means that an entire state could not be converted into a UT but separating a state into two or more UTs was permissible. To test the argument, Justice Kaul asked–

"Let's complicate it. Suppose out of Assam, you carve out a UT or you convert Assam to a UT. Then?"

The SG responded–

"It's an extreme example but for purpose of testing, separation would be necessary. One state cannot be declared as UT. But here, it is nobody's case that we carved out Ladakh to get out of this. We had other reasons."

Continuing this line of discourse, the CJI pointed that in the creation of UTs, there were two kinds of examples, the first kind was UTs like Chandigarh which was carved out of Punjab and remained a UT. The second kind was "a progression", where certain areas became UTs in progression of making them states. Of these, the north eastern states of Manipur, Mizoram, and Tripura were examples. "They became UTs but that's in the process of making them into a stable administration to make them states. You can't immediately make them states," he added. Thus, he asked if the Union Government was planning to re-convert J&K into a State and if so, when would it provide a time-frame or roadmap for the restoration of statehood of J&K. The Union affirmed that it would restore J&K's statehood.

SG Mehta then continued his arguments stating that–

"If you see holistically Articles 3 and 4, and I'm saying this academically- there is nothing if we read as a common scheme of reorganisation- that one state for a good reason, can be converted into a UT."

Quoting Raja Rampal decision, he added, "India is an indestructible union with destructible units." He further stated–

"This is a provision where strict compliance is not insisted upon, provided that there is a broader compliance, namely the entire nation considering that this affects the nation as a whole. This situation doesn't just affects states or neighbouring states, it affects the nation."

He reiterated from his earlier arguments that J&K still had all attributes of a State including assembly constituency, election commission, legislative assembly, population ratio etc. He said–

"They say representation in parliament is reduced, no that is not correct. Earlier, only permanent residents could contest election under Section 16. Now, you should be a citizen of India, not a permanent resident, for being qualified to be elected like any other state."

J&K Case | Supreme Court Explains 'Heart Of The Matter' : Could Union Have Amended Article 370 Through Article 367 Route? [Day 12]