Supreme Court hearing on Article 370 abrogation | Day 11

The Bench rises for the day. The hearing will resume tomorrow that is on August 29.

Justice Sanjiv Khanna points out the arguments advanced by the petitioners. He says - ‘ Converting Ladakh into a Union Territory- the other side has argued is downgrading it. Article 356- the maximum tenure is 3 years. We have crossed those 3 years’

SG Mehta says - ‘...The arguments by petitioners are factually wrong- that my consolidated fund is gone, representation in parliament is gone, my elections- voting in parliament is gone, GST Council is gone- specific provisions have been made’.

He adds that it is necessary that for some time J&K remains as a Union Territory. He also refers to Home Minister Amit Shah’s statement in the Lok Sabha that the Centre will grant full statehood to J&K at an appropriate time.

Addressing SG Mehta, CJI Chandrachud says –’..The constitutional practice cannot obviate the legality of what is done.’

SG Mehta responds by saying - ‘....Even the views are taken here. In Punjab it was not done. ‘

SG Mehta submits that whenever the President’s Rule is imposed, the Parliament exercises the role of the State legislature under Article 356(1)(b) in all states. He says that 248 laws have been passed till date wherein the Parliament has acted as the State legislature during the President’s Rule.

‘....During the president’s rule, the parliament acting as a state legislature even reorganized the state of Punjab’, he adds.

SG Mehta elaborates that there is a reason that this is done. He submits that under the President’s Rule when the Legislature is dissolved, any provision which requires some action to be done by that legislature, that provision is suspended. Any provision that mandates advice or consultation or aid is suspended.

‘...During the President’s rule, there are certain steps taken to infuse confidence amongst people. There were situations that were alarming - everything may not be on record. Pulwama happened etc. The government had to take proactive steps’, he adds.

SG Mehta apprises the Bench that whenever the President’s Rule is imposed under Article 356, the proviso to Article 3 is suspended in each and every case and that what was done in J&K was not unique.

‘..it is being said that as if we did something surreptitiously as if we had some sinister plan’, he adds.

Sibal reverts by saying that he has never made a political argument in this court.

SG Mehta quips– ‘...But if there is no challenge and you raise a plea that the governor should never have dissolved (the Assembly) it becomes a political argument.’

Responding to SG Mehta’s submission, senior advocate Kapil Sibal says – ‘...There was a PIL filed before this court for governor’s rule- dismissed by Justice Gogoi. I would be very happy if this court were to say that because all this was not challenged the entire process followed would be Constitutional.’

SG Mehta says – ‘...For half an hour a political argument was made. I am trying to show that there was no challenge, but these arguments were submitted.’

SG Mehta contends – ‘ Today, there is no challenge to the dissolution of Article 370...The petitions which Mr. Sibal argued..these are petitions filed by two members of the Parliament belonging to the Jammu & Kashmir National Conference...no challenge either to the Governor’s Rule, the President’s Rule or dissolution of the legislative assembly.’

SG Mehta says – ‘....Ultimately I would show that the Constitution of J&K had to be repealed because it can never co-exist. Once you apply the entire Constitution, you cannot have a situation where there is a separate document of governance operating. According to me it (J&K Constitution) is a separate piece of legislation.’

SG Mehta refers to the Supreme Court’s ruling in Mohammed Maqbool Damnoo v. State of Jammu and Kashmir (1972) to contend that if an authority contemplated under Article 370 ceases to exist, it can be replaced by the successor.

The Bench has reconvened. The hearing has resumed.

The Bench rises for lunch. The hearing will resume at 2 pm.

In response, SG Mehta says – ‘....That is a wrong point. I am not being political but from a citizen’s point of view, unless investment comes, you never develop’.

Senior advocate Kapil Sibal says – ‘During these debates, Nehru intervened and said that if you talk about letting outsiders buy land in J&K, I am totally opposed to it because businesses will come and destroy the entire state. He was very adamant.’

CJI Chandrachud points out that the statements are individual views and are not expressions by the Parliament as a collective body.

Referring to the statements of the Parliamentarians, SG Mehta contends that Article 370 was intended to be a ‘temporary provision’ and could be removed at any time.

SG Mehta refers to the private member’s bill introduced on September 11, 1964, by Prakash Vir Shastri, an independent MP from Bijnor for the abrogation of Article 370.

‘....that its biggest side effect has been that that of Pakistan spewing venom against India in other countries. Secondly, the countries which are ignorant of our constitution or the real situation are also beginning to suspect that the provision is not temporary as being bandied by the government of Pakistan’. [Text from Prakash Vir Shastri’s speech]

SG Mehta points out that until 2019, the J&K High Court judges used to take the oath which stipulated – ‘...true allegiance to the Constitution of the State’.

He says that although they were under an obligation to apply the constitution of India, the oath they took was expressing their allegiance to J&K.

SG Mehta says – ‘....The Constituent Assembly is not a law-making body in that sense. My submission is that the Constitution of J&K is at par with legislation only, it is not a kind of a Constitution as we understand it, not a document of governance.’

Referring to the Constitution (Application to Jammu and Kashmir) Order,1954, SG Mehta highlights the modification made to Article 367 in its applicability to J&K. It stated that “references to the Legislature or the Legislative Assembly of the said State shall be construed as including references to the Constituent Assembly...”.

‘...Thus, in the absence of the Legislative Assembly, the word Constituent Assembly was used synonymously as both are co-equal organs in the context of Jammu and Kashmir’, he adds.

SG Mehta apprises the Bench that because of the abrogation of Article 370 and the introduction of Article 35A, investments are pouring in, and the tourism industry is booming.

‘...Now, 16 lakh tourists have come. New hotels are coming up which gives employment to a large number of people - from tangawala to officials!’, he adds.

SG Mehta submits – ‘..I am urging your lords to look at the matter from the perspective of the people of J&K. Something that is impugned here is a constitutional exercise of power which confers fundamental rights, applies the entire Constitution, and brings the J&K people to par....It applies all laws that are welfare legislations to J&K which were not applied earlier. I have the list with me. Till now, people were convinced by those who guide them that this is not a hindrance in your progress, it is a privilege you fight for.’

CJI Chandrachud says – ‘...See the 1954 order ​(Constitution (Application to Jammu and Kashmir) Order, 1954)​...it applied the entirety of Part III (fundamental rights) and so Articles 16, 19 applied to J&K. Now, you bring in Article 35A which creates an exception under 3 areas: employment under state govt, acquisition of immovable properties, and settlement in the state. Though Part III is applicable, when you introduce Article 35A, you take away 3 fundamental rights- Article 16(1), the right to acquire immovable property which was then a fundamental right under Article 19(1)(f), Article 31, & settlement in the state which was a fundamental right under Article 19(1)(e).’

He adds – ‘...So those that the Constitution expressly made the provisions of Article 19 applicable, which would include these three rights and Article 16– by enacting Article 35A, you virtually took away the fundamental rights.’

SG Mehta points out that through Article 35A of the Constitution, a separate clause was inserted with respect to “permanent residents” of J&K. He says that similarly situated persons who do not come within the artificially created definition of “permanent residents”, were completely deprived of all fundamental rights.

‘....Unfortunate part is, till now, people were convinced that this was not a hindrance to progress, they were not deprived of rights, they were told they are special and was told to fight for it’, he adds.

In response, SG Mehta says that the government of India has a right to say that this ought not to have been done and correct itself.

‘...The government can correct itself, which we did. I am justifying that correction....The mistakes of the past should not befall the future. That is why I am justifying our undoing in 2019’, he adds.

To this, CJI Chandrachud points out that the Solicitor General is appearing for the Government of India who did this and that in constitutional theory, the Government of India is a perpetual entity.

SG Mehta says – ‘....In Article 19, a sub-article (7) was added by way of modification which remained till 1979- 25 years. The words “reasonable restrictions” were construed as meaning “such restrictions as the appropriate legislature deems reasonable”. The citizens apply fundamental rights against the State. And now the legislature would decide what are the reasonable restrictions.’

He further pointed out that even Articles 21 & 22 were not made applicable which is unthinkable in any constitutionally governed civil society.

SG Mehta highlights that the Preamble of the Constitution of India was made applicable to J&K but without the words “socialist” and “secular”.

SG Mehta says – ‘....over time several provisions of the Constitution were made to apply to J&K, but in a shocking way. There is much to be made of what was and what was not applied to J&K’.

He points out that Part IV [Directive Principles of State Policy], Part VI [The States], Part VII [The State in Part B of Schedule 1], Part VIII [Union Territories], Part X [The Scheduled and Tribal Areas], 5th Schedule, 6th Schedule, were not made to apply to J&K.

SG Mehta submits that by an administrative act of the President and the Governor of the State, any provision of the Constitution can be amended, altered, or destroyed and even new provisions can be created with the combined use of Article 370 and Article 367.

‘....This Article 370(1) route and Article 367 mechanism has been used more than once. Because Article 370 permits it. It stopped only after August 5, 2019. Otherwise, any provision, or any Article (could be removed). It was placed on a very high pedestal, even above the basic structure’, SG Mehta adds.

SG Mehta says that whenever a word in Article 370 becomes otiose, it is replaced by its successor – for instance, Sadr-e-Riyasat was replaced by the Governor.

Mehta says that the words Constituent Assembly and Legislative Assembly can be used interchangeably, in a ‘floating way’.

Referring to the note submitted by the Union government, Chief Justice D.Y Chandrachud says that the Union’s contention that the Constituent Assembly of J&K was in the nature of a legislative assembly and not a Constituent Assembly ‘may be a problem’.

The CJI highlights that Article 370(2) refers to it as a Constituent Assembly of the State.

‘...But more importantly, once Article 238 makes certain provisions of the Constitution inapplicable to Part III states, especially J&K, which would be brought into force by the Constituent Assembly framing a Constitution, then it may be difficult to call it a legislative assembly’, the CJI adds.

SG Mehta says that he will point out to the Bench how the J&K Constitution was subordinate to the Indian Constitution.

SG Mehta takes the bench through a list of States that became a part of the Dominion of India without signing a merger agreement. He had earlier argued that signing of a merger agreement was not an essential requirement for integration with the Union of India.

Justice SK Kaul says – ‘...Mr SG, the close proximity between the arguments and the order... ‘

In response, SG Tushar Mehta says – ‘...The timing is definitely not proper, I bow down.’

Sibal says that this is not how our democracy should function.

Chief Justice of India D.Y Chandrachud asks Attorney General Venkataramani to look into the matter and talk to the Lieutenant Governor.

‘..If there is something else, then it is different. But why such close succession to him appearing and then getting suspended’, the CJI adds.

Solicitor General Tushar Mehta says – ‘...I have checked my lords after reading the newspapers. What is reported in the newspapers may not be the whole truth. There are other issues. He appears in various courts and there are other issues. We can place it before the court.’

Senior advocate Kapil Sibal brings to the notice of the court that senior lecturer Zahoor Ahmad Bhat was suspended from the Union Territory’s education department by the Jammu and Kashmir Lieutenant Governor’s administration in Srinagar, four days after he pleaded against the abrogation of Article 370 in the Supreme Court.

‘..My lords, Zahoor Ahmad Bhat, the academic who came here and argued for a few minutes- because he argued what he argued he was suspended from the faculty on 25th August. He took leave for two days, went back, and was suspended’, Sibal submits.

The Bench has convened. The hearing has begun.

The Constitution Bench comprising CJI DY Chandrachud, Justice Sanjay Kishan Kaul, Justice Sanjiv Khanna, Justice BR Gavai, and Justice Surya Kant will continue to hear arguments advanced by the Union government today.

Chief Justice of India D.Y. Chandrachud on Thursday said the government cannot justify the “means” used to abrogate Article 370 from the Constitution and erase Jammu and Kashmir as a full-fledged State in August 2019 by simply pointing to the “ends” achieved.

“We cannot postulate a situation that ends justify the means… Means must be consistent with the ends,” Chief Justice Chandrachud said. Read more here.

Stay updated about the ongoing Supreme Court proceedings on the abrogation of Article 370 with The Hindu’s coverage of the latest developments. Read more here.

As the petitioners contesting the abrogation of Article 370 concluded their arguments in the Supreme Court on August 23, the leaders of Jammu and Kashmir’s regional parties — the National Conference (NC) and the Peoples Democratic Party (PDP) — expressed satisfaction and optimism regarding the case.

“I thank all the lawyers who spoke for Article 370. Those people who were not with the decision of August 5, 2019 were given the feeling they were not alone in this fight. Heavy and constitutionally apt arguments were given. I don’t think we could have done better than this. We now await the final judgement,” former J&K Chief Minister and NC vice president Omar Abdullah said.