New Delhi: The language of Article 370 – the reading down of which by parliament is under challenge before the Supreme Court – continued to engage the attention of the bench and the senior counsel on the 13th day of hearing before the five-judge constitution bench on Thursday (August 31).Senior advocate Rakesh Dwivedi reasoned that Article 370 has outlived its utility and that the President’s decision as a constituent body under Article 370(3) should not be questioned.However, Chief Justice of India D.Y. Chandrachud sought to link the continued existence of Jammu and Kashmir (J&K) as a state to Indian federalism.Earlier, the bench took note of senior counsel Kapil Sibal’s submission that it should not consider the Union government’s extraneous claims with regard to the restoration of J&K’s statehood while deciding the challenges to its conversion into a union territory.For the second day, the Union government refused to indicate a time frame for restoring J&K’s statehood, even as the bench made it clear that it would consider only the constitutional grounds while adjudicating the challenges before it.Dwivedi argued that the doctrine of presumption of validity of laws passed by parliament requires the petitioners to rebut it. “If two views are possible, then the one which sustains the exercise of power has to be preferred”, he told the bench.Senior counsel Harish Salve said that a law cannot be held to violate of the basic structure of the constitution and that only constitutional amendments can be challenged on that ground.However, the reading down of Article 370 must be construed as aimed at protecting civil liberties, and it should therefore be seen as being aligned with the basic structure, Salve claimed.Taking the bench through the language adopted in Article 370, Salve said Article 370(3) uses the word ‘recommendation’ instead of ‘concurrence’, and therefore, by reserving the power to the president to make it inoperative, there cannot be concurrence of the constituent assembly, which is no longer in existence, he explained.Also Read: The Backstory of Article 370: A True Copy of J&K’s Instrument of AccessionBy making it clear that only consultation (rather than concurrence) was required if the president wanted to make any exception or modification concerning defence, security and foreign affairs (subjects mentioned in Instrument of Accession (IoA)), Article 370 made the constitution-framers’ intentions clear, Salve suggested, and asked the bench to ponder over why they used different words in different contexts.“There was a political compromise and the accession was complete; Article 370(3) was aimed to put an end to the political compromise”, Salve told the bench.But the Bench asked Salve whether the abrogation of the provision itself – which has a greater constitutional impact than exceptions and modifications of the Article – could have been conceived by the constitution-framers as not meriting the restriction of consultation and concurrence (as opposed to mere recommendation, which is not binding).To this, Salve claimed Article 370 was a unique provision that left the last word to the Union government when it came to the IoA.Therefore, he submitted, this dichotomy was built-in. According to him, one cannot search for too much logic in this provision, and as a political clause, the court must give it the widest meaning possible.Dissecting the language of Article 370, Salve suggested that the president could have got a recommendation from the state constituent assembly if it existed. The president does not lose her power if there is a vacuum, he contended.Earlier, attorney general (AG) R. Venkataramani submitted that the determination of Article 370 must occur at some time and that the president could not be excluded from doing so now.Responding to the chief justice’s view that ends cannot justify the means, the AG said J&K provided a complex situation and that there is no mathematical formula to address it.
