Article 370 A Political Compromise, President Had Broad Powers To 'Pull The Plug': Respondents Tell Supreme Court [Day 13]

On the thirteenth day of the constitution bench proceedings concerning the abrogation of Article 370, the bench comprising CJI DY Chandrachud, Justices SK Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant heard arguments raised by the respondents. 

Impossibility Cannot Paralyse President's Powers: AG

The first limb of the arguments raised by the AG was that the law does not compel one to do what one cannot perform. In this context, he stated that since the Constituent Assembly had already dissolved, the President could no longer be compelled to take its recommendation for the abrogation of Article 370 under Article 370(3). He asserted that the action of taking the Constituent Assembly's recommendation was impossible now but it could not have the effect of paralysing the President's power and causing the substantive part of Article 370(3) to become otiose. For his argument, the AG relied upon the judgement in In Re: Presidential Poll v Unknown (1974), which provided for two legal maxims—Impotentia excusat legem (impossibility in law is excluded) and lex non cogit ad impossibilia (the law does not compel a man to do anything which is impossible).

In this scenario, the AG argued that the President was left with two choices- one, that he could exercise his power under Article 370(3) without any consultation on his own and; second, he could follow the precedents followed by earlier Presidents and take recourse to Article 367 and Article 370(1)(d). He added–

"There is a void, there is an impossibility of complying with the proviso of clause (3) and how to tackle that void? The president could have said that without taking recourse to any other action, I could myself render 370 inoperative. 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. If the doctrine of impossibility stands in your way, you're not paralysed."

The AG asserted that there was no 'mathematical formula' to solve issues pertaining to internal disturbance or external aggression. In such situations, he argued, there were some 'broad standards' to be followed where fundamental values were not breached. Further, he stated that it was open to the President to take into account all exercises undertaken under Article 370 and the considerations that 'loom large before the nation', particularly before J&K and correct the wrongs as per such consideration.

Article 370 Was A Political Compromise : Senior Advocate Harish Salve

In his arguments, Senior Advocate Harish Salve, appearing for an intervenor, described Article 370 as an 'element accommodating certain political compromises' within the constitutional framework. Thus, he stated that the words in the Article had to be given their plain meaning. He underlined that as per the words of the Article, the idea was not that the President could only give effect to recommendation of Constituent Assembly because had it been so, the same would have been made the precondition for exercise of power.

"Perhaps the article would have said- "If the recommendation would have been received from the Assembly, then the President may". That's not the frame in which this was drawn out. 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"," he asserted. Continuing his line of argumentation, Salve stated that the word is 'recommendation' was used on purpose instead of the word 'concurrence'.

Arguing on the context of the article, he stated that the Article was nothing but a political agreement which was not meant to led to a situation which prevented integration. He contended that the purpose of the article was not to divide constitution but lead to a 'phased integration'. Accordingly, the framers of the Constitution had inserted a 'safety valve' in Article 370 in terms of Article(3) to ensure that if the political compromise under Article 370(1) failed to achieve its purpose, we could 'pull the plug' through Article 370(3). He explained–

"So border state, with all its sensitivities, is what compelled the Constituent Assembly to agree to the special arrangement. And with their wisdom they said you have the power to pull the plug. It may be difficult to find logic in each of this because it was a political compromise. Why was a constituent assembly put in place? It was a compromise - done to assuage. One cannot search for too much logic."

In this context, he argued that for such provisions, the constitutional interpretation must be giving it the widest possible meaning. 

Not applying A Constitutional Provision Does Not Give Individual Citizens Any Right: Salve

Salve further argued that Instruments of Accession and their interpretation had always been a matter for the sovereign. Since in the present case, the accession had being complete, irrevocable, and irreversible as per Articles 1 and 3, the President would have the last word on any matter concerning the accession. 

He added that the Delhi judgments cited by petitioners had no application in the present case as those matters were concerning excessive delegation but since Article 370 and the power provided to the President under it was a part of the Constitution itself, there was no question of excessive delegation.

"The power under 370 is plenary in nature and this is a power conferred by the Constitution. Plenary power is not subject to the challenge of excessive delegation because it is provided by the Constitution itself. The second point is that the power exercised is legislative in character. Applying provisions and disapplying provisions, modifying provisions of a law is legislative in character," he submitted.

He also argued that applying or disapplying a constitutional provision would not give an individual citizen right. Stating that the J&K citizens were just "adjusting to the accession", he invoked the international law and stated that "a citizen can never assert that I had certain rights in an earlier regime. You have only certain rights as available to you." 

Laws Cannot Violate Basic Structure: Salve

Stating that he found the repeated reference to the basic structure doctrine surprising, Salve submitted that the basic structure doctrine was not a principle as an independent stand alone constitutional right but a limitation inherent under Article 368 on which constitutional amendments were tested.

"Laws, strictly speaking, can't violate basic structure. Laws violate Part III or don't violate Part III," said Salve suggesting that only constitutional amendments can be tested on the basis of basic structure doctrine.

At this juncture, the CJI underlined that in some judgements, the court had held that a particular law protects the basic structure. 

Here, Salve submitted that when a law was made to protect civil liberties which formed a part of the basic structure, the same could be said to align with the basic structure. Elaborating further, he said–

"Today if there are checks and builds to safeguard arrest, criminal trial etc- you may say this is to protect the basic structure but the basic structure is the trilogy of rights. That is not to say that the law was tested on basic structure."

He then moved on to the petitioners' argument that 'irreversible' changes could not have been made under the President's rule. Here, he argued that 'everything in one sense is irreversible'. Giving examples of the same, he said–

"Parliament passes the budgets of the states- money spent is irreversible. The president may dismiss people, appoint people, create institutions, remove institutions- the governor may do, president may do under 356- those are for those people irreversible. That is why your lordships have said 356 must be very sparingly used, it is draconian."

Stating that if the unfortunate circumstances arise that for a defined time, the system of governance changed to a President's rule, one had to accept the consequence of Article 356. 

View of Constituent Assembly can't be binding : Senior Advocate Rakesh Dwivedi

Sr Adv Salve's arguments were followed by Senior Advocate Rakesh Dwivedi's submissions. Dwivedi argued that the burden was on the petitioners to show that the view put forth by them was the correct view and that no other view could exist. He added that if there were two views, that view should be adopted which sustains the exercise of power and not defeats the exercise of power. He further argued that the character of the power of president was a 'constituent power' and was much wider than ordinary executive power.

He also added that a recommendation of an inferior authority when it goes before a superior authority can never be binding, that too if the body was a temporary body.

Concluding his arguments for the say, Dwivedi said that the decision of abrogation could not be based upon emotions.

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]

Can't Say Exactly When Jammu & Kashmir's Statehood Will Be Restored; Ready For Elections : Centre Tells Supreme Court [Day 13]