Salve went on to point out that Article 370 (1)(d) does not require concurrence of the State government. This sub-clause states:
“Such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify.”
“If you see 370(1)(b), it requires consultation. This dichotomy was built in,” Salve said.
The CJI remarked that subjects in the Instrument of Accession required consultation while those which were not in the Instrument of Accession required concurrence of the State government.
Salve replied,
“When it comes to the Instrument of Accession, the last word stays with the Union. Why there is dichotomy in the first and second proviso is something lordship has to reflect over…One cannot miss the significance of overlay of international law engrafted in Article 363 and that matters in Instrument of Accession…There is the underpinning of political compromise in Kashmir. They reserved the power in the President to disapply the provision in total, this is a unique provision.”
The CJI then posed the question,
“Where the power to do something lesser in terms of constitutional impact is hedged in with restrictions, namely the power to make exceptions and modifications, can we subsume that the power to do something greater, which has a greater constitutional impact, namely the abrogation itself will be bereft of all limitations?“
Salve contended that there was a compromise and that now the accession is complete.
“It (J&K) is part of India and it is an Indian State. Now there is a political compromise and sub-clause 3 is to put an end to the political compromise.“
Source: Barandbench
