Article 370 was a political compromise, Salve tells SC

He told the bench that this was the “workable arrangement. They said alright, ultimately we will decide and we will keep to ourselves the power to dis-apply this Article. But if this works, phase by phase…why not? And it did work to a large extent.”

Salve, who appeared for some safai karamcharis, said Article 370 was a provision “made for a phased transfer of power”, although J&K’s accession to India was “absolute and irreversible”.

In the context of evolution of Article 370, Salve said there was a “political agreement…given the circumstances…. But if this led to a situation which ultimately prevented the purpose of 370 — which was not to create a permanent divide in the Constitution, it was a phased integration — there was a safety valve in Article 370(3) that if the political compromise in 370(1) fails to achieve the purpose, at any time it might become necessary to pull the plug. 370(3) is that plug …The framers of the Constitution kept with the President the power to do away with the special arrangement.”

“There were two approaches…one saying doesn’t matter. Things will settle down. Don’t agree to anything special for Kashmir. The other extreme saying if the legitimacy of the accession is being questioned and there is a popular uprising, accommodate that. This was the compromise,” he pointed out.

Salve said the historical perspective of Article 370 is very important. “The troubled relations…while there always was a hope that relations with the neighbouring country would be on good terms, the history of Kashmir did give rise to apprehensions. So (a) border-state, with all its sensitivities, is what finally compelled the Constituent Assembly to agree to the special arrangement. And with their wisdom…they said you have the power to pull the plug.”

The senior counsel said that “the history of this provision also tells us that it may be difficult to find a logic in each of these because these were a political compromise. Why was a Constituent Assembly put in place? It was a compromise. A lot of things are done to assuage ruffled feathers”.

He said the safest approach for a court as a matter of Constitutional interpretation of such provisions which are essentially political, not in pejorative sense but in its Constitutional sense, is to give it its widest possible meaning.

Appearing for advocate Ashwini Upadhyay, senior advocate Rakesh Dwivedi said the Article 370 question “cannot be decided on the basis of sentiments. Sentiments are on both sides.” He said the burden is on the petitioners to show that what they are saying is unquestionably right.

“If there are two views, that view should be adopted which sustains the exercise of power and not defeats the exercise of power,” Dwivedi said. “So the burden on them is to show that what they’ve put forth is the only view possible.”

The hearing will resume Friday.