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: AGThe 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 SalveIn 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: SalveSalve 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...

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

Padmakshi Sharma

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