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 addedA 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...

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]

Padmakshi Sharma

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