Supreme Court Hears Challenge to the Abrogation of Article 370 | Day 11

Solicitor General Tushar Mehta argued that removing Art. 370 was Union’s way to rectify the mistakes of the past.


Hello and welcome to SCO’s breakdown of Day 11 arguments in the challenge to the abrogation of Article 370. On Day 11, Solicitor General Tushar Mehta continued his arguments in support of the abrogation of Article 370.

He argued that Article 370 gave the people of J&K a different set of rights from the people of the rest of the country. He began listing what he called “shocking” differences in the application of the Constitution to J&K and India.

Entire parts of the Constitution were made inapplicable to the state. This included Parts of the Constitution on Directive Principles of State Policy, The States, Union Territories, and The Scheduled and Tribal Areas, and the 5th and 6th Schedules. Second, the words “socialist”, “secular”, and “integrity” from the Preamble of the Constitution were not made applicable to the state. Third, key provisions of Part III (Fundamental Rights), were made to apply partially, taking away crucial rights from the people. It removed references to Scheduled Tribes (ST) in Article 15(4), disallowing the recognition of ST’s in J&K. It redefined “reasonable restrictions” under Article 19, allowing the state legislature to set its definition until 1979. Articles 20 and 21, 22, 31, 31A and 32 were applied with modifications. “Articles 21 and 22 are the heart and soul of Part III”, Mehta exclaimed.

Chief Justice D.Y. Chandrachud reminded the Solicitor General that he was arguing on behalf of the same Government that had made these modifications. Without skipping a beat, Mehta responded that “the Government has the right to correct its mistakes”, and that he was “justifying the undoing of our mistakes.” Mehta said that it was “unfortunate” that some people of J&K believed in the value of Articles 370 and 35A. He said that after the abrogation of Article 370, investments and the tourism industry have boomed in the state, and employment and income have increased in the region.

He then moved his arguments towards the interpretation of “constituent assembly”. Mehta argued that in the context of J&K, the term Constituent Assembly always meant Legislative Assembly, and was used interchangeably, in a “floating way”. He elaborated that J&K was already a part of India under Article 1, which describes India as a Union of States. Therefore, the Constituent Assembly could never have created a “Constitution” when it was already bound by another. So, Mehta concluded that the J&K Constituent Assembly made a “legislative enactment”, much like a legislative assembly would do.

He then read out the speeches made by former Prime Minister Jawaharlal Nehru where he said that Article 370 is “part of certain transitional provisional arrangements. It is not a permanent part of the Constitution”. He also referred to statements made by former leaders from the state and representatives in the Parliament, to argue Article 370 was intended to be temporary. CJI Chandrachud interjected to remind Mehta that these were just views of individual members of the Parliament and not the “collective decision of the Parliament as a body”. Mehta tried to convince the Bench that this was how the members of Parliament understood Article 370, and chose to “leave it at that”.

The Petitioners had earlier argued that the Union had played a “fraud on the constitution” while abrogating Article 370, as they suspended the proviso to Article 3 when the state was under President’s. This allowed the Union to reorganise J&K into Union territories without “reference to the legislature of the state”. To this, Mehta argued that it is a “constitutional practice” to suspend Article 3 and its provisos when a state was under President’s rule. The reason, he clarified, was that under President’s Rule, the Legislature of a state is suspended. Therefore, any provision that requires the consultation of the state Legislature also stands suspended. Parliament assumes the role of a state’s legislative assembly and makes laws for it under President’s Rule. CJI Chandrachud asked Mehta why suspension of Article 3 was needed if Parliament could assume the powers of the legislative assembly. Mehta responded that it was to ensure that in the event that a legislative assembly was in ‘suspended animation,’ it could not “do anything.” Presumably, the Solicitor’s justification seemed to be to avoid complications of the legislative assembly coming back and passing a resolution against the decision of Parliament.

Mehta sought to discredit the arguments made by Senior Advocates Kapil Sibal and Nitya Ramakrishnan against the Governor’s powers to dissolve the Legislative Assembly of J&K in 2018. Mehta stated that without an actual plea filed against these events, any argument made against it was a political attack. This ruffled some feathers in Court with Sibal vehemently insisting that he “never made a political argument in this Court.”

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