New Delhi: The Centre on Thursday wriggled out of giving an exact timeline to restore statehood in Jammu and Kashmir, but Solicitor general Tushar Mehta on its behalf told the Supreme Court on Thursday that the Centre is ready for elections there anytime, depending on the election commission.
Only four of the judges on the Constitution Bench were present in the court, namely the CJI and Justices S K Kaul, Sajiv Khanna and Suryakant, while justice B R Gavai appeared from his chamber.
Senior advocate Kapil Sibal, appearing for the petitioners, however, opposed the statistics reeled out by Mehta on the status of normalcy in the valley and sought to counter them. He said: "If you have 5,000 people under house arrest and 144 throughout the state, there can be no bandh as claimed by the solicitor general. Please d not enter into the arena because we would have to counter it with all kinds of facts."
CJI DY Chandrachud's comment
Chief Justice D Y Chandrachud sought to stress that the challenge to the constitutionality will be decided solely on the basis of the constitutional arguments and not on the statistics presented by the Centre. He said the solicitor general was only replying to the court's query on giving a definite timeline for restoration of statehood to J&K as restoration of democracy is vital.
‘..It is obvious that a substantial degree of integration had already taken place between 1950 to 2019– in 69 years. And therefore what was done in 2019, was it really a logical step forward to achieve that integration?’, the CJI had asked.
Kapil Sibal argues
Sibal was challenging the SG's claim of terrorism down in J&K by 45.2%, infiltration by 90.2% and law and order 97.2% and the bandhs from 1767 in 2018 to nil. Even the organised bandhs were nil. The SG also pointed out the progress in the state with the central and private investments.
Mehta said the voters' lists are being readied and will be over in a month or so and then three elections are to be held. Already district development elections completed, then come the panchayat and municipal eleections and then the elections of the state legislature.
Senior advocate Harish Salve
Senior advocate Harish Salve, appearing for an applicant in an interlocutory application, said he was only supplementing some submissions made such as consstriction of proviso to Article 370(3), the width of power under Article 370 and the nature of powers of the President under various sub-articles of Article 370 and the absence of a challenge to the administrative law principle of abuse of power.
He said if the idea was that the President could only give effect to the recommendation of the Constituent Assembly, then that would have been made the precondition for the exercise of power. CJI Chandrachud asked does the proviso of Article 370(3) not bring out the same result by the use of expression "shall be necessary"?
Salve replied: "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 do not have a Constituent Assembly, you cannot act. Is the President to act only to give effect to the desire of the Constituent Assembly or is he to receive the recommendation from the Constituent Assembly? The compromise was that he must receive the recommendation."
Article 370 was carefully crafted, using two separate expressions
He argued that Article 370 was carefully crafted, using two separate expressions: “concurrence” and “recommendation”. He contends that if the word concurrence was placed, then it would have been a much stronger place for the Constituent Assembly. He said the framers kept with the President the power to do away with this Article. He said the constituent assembly was put in place as a political compromise.
Salve started after Attorney General R Venkataramani completed his arguments assertin that it is open to the President to take stock of all execises undertaken under Article 370 andd take into account the larger considerations that loom large before the nation, particularly before J&K. He claimed there is only one solitary intertation that it is to aid to the constitutional integration process. Determination of Article 370 must occur at some time in a way that will advance the larger interest, he said.
AG's comments
The AG said the President could have unilaterally abrogated Article 370 but instead, he took the recommendation of the Legislative Assembly into consideration. He points out that the President can declare the ‘power of the legislature’ under the Constitution.
He relied on the Supreme Court’s ruling in Re: Presidential Poll v. Unknown (1974) to contend that the law does not compel one to do what one cannot perform. He submits that since the Constituent Assembly does not exist, it cannot recommend abrogation.
