Supreme Court Hears Challenge to the Abrogation of Article 370 | Day 13

Hello everyone, and welcome to SCO’s breakdown of day 13 of arguments in the Article 370 case. In the previous hearings, the Bench had asked the Solicitor General of India to submit information on a “blueprint” or “roadmap” chalked out for the reorganisation J&K, and inform them when elections would be conducted in the state. The Chief Justice had also asked Mehta when the Union planned to reinstate J&K’s statehood. On Day 13, Mehta came to court equipped with different data points but didn’t commit to a date by which J&K would be made a “complete state”.

First, he submitted that the Union is ready to announce elections in J&K any time now. They were simply waiting for the Election Commission to complete updating the voters list in the state, which is “substantially over”. He then reiterated that for the first time, a three-tier panchayat raj system would be introduced in J&K. So, Panchayat elections will be held first, seeing as District elections had already been conducted. In Ladakh, the Leh Hill Development elections had already taken place and the Kargil Hill Development Council election was scheduled at the end of September 2023. Municipality elections will follow, and then legislative assembly elections will be conducted after that.

The scheduling is based on data that suggests improvement in the law and order and development situation in J&K , Mehta said. Since August 2019, among other similar metrics, “terrorist-initiated instances” have reduced by 45.2 percent. Infiltration, which he said was a major issue in the region, had reduced by 90.2 percent. “Law & Order events” had reduced by 97.2 percent.
Mehta emphasised that this was not only because of increased security personnel but because of gainful employment of the youth who were “misled by cessationist forces and forces outside the country.” Organised bandhs by “cessationist forces”, which were 52 in 2018, had also dropped to zero.

Attorney general R Venkataramani’s focus was on the president’s powers to repeal Article 370. He stated that the President was not limited or “paralysed” by the situation of impossibility, which in the case is the lack of a Constituent Assembly. You’ll remember from our previous videos that Article 370(3) requires that a Constituent Assembly recommend the abrogation of the provision. Venkataramani argued that it was “impossible” to get the recommendation of J&K’s Constituent Assembly because the Constituent Assembly did not exist after 1957. So, the President is empowered to “take stock” of the situation in J&K from time to time and decide when the abrogation of Article 370 is necessary for the state.

Senior Advocate Harish Salve argued next and said that Constitution framers were apprehensive of the “troubled history” of J&K. Considering the sensitivities of the border state, they were compelled to agree to a system where Article 370(3) would act as a “safety valve” mechanism. This fail-safe would ensure that “if the political compromise in 370(1)” failed, and there was a “need to pull the plug” on the agreement between J&K and India, Article 370(3) would be that plug.

Senior Advocate Rakesh Dwivedi was the last counsel to argue for the day. He contended that the President’s power under Article 370, was neither an executive one like Sibal had previously suggested, nor a legislative one as Salve argued. Rather, it was a “constituent one” that was built into the original Constitution of India. Justice Khanna disagreed, and pointed out that the only “constituent power” was the power to frame the Constitution—everything else was either a legislative power or an executive one. Dwivedi maintained that the President’s powers under Article 370 were much wider than ordinary executive powers.

Dwivedi will continue arguing on September 1st, 2023.

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