Abrogation of Article 370 | Day 11: Removing Art. 370 Was Union’s Way to Rectify the Mistakes of the PastChallenge to the Abrogation of Article 370
Over four hours today, Solicitor General Tushar Mehta argued that abrogation of Article 370 was crucial to giving the people of Jammu and Kashmir (J&K) rights which people of the rest of the country enjoyed. He also argued that Article 370 was intended to be a “temporary” provision and that the words “constituent assembly” and “legislative assembly” were used interchangeably.
Mehta then claimed that the reorganisation of the state of J&K into Union territories was constitutional. This was not a downgrade for the state, as Union Territories are as much a part of India’s federal structure as states, he said.
Mehta began the day’s arguments by responding to the Bench’s request from the previous hearing for a list of Princely States that had integrated into India without a merger agreement.
Article 370 of the Constitution of India provided the State of Jammu and Kashmir with a special constitutional status. The provision substantially limited Parliament’s power to legislate for the State compared to other states.
On August 5, 2019, the Union government diluted Article 370, revoking Jammu and Kashmir’s special status. First, President Ram Nath Kovind issued presidential order CO 272. This Order allowed the Union to amend Article 370 without the recommendation of the Constituent Assembly.
Since J&K was under President’s Rule at the time, the powers of the Jammu and Kashmir Legislative Assembly were vested in the Union Parliament. So, a few hours after CO 272 was issued, the Rajya Sabha recommended the abrogation of Article 370 through a Statutory Resolution under Article 370(3).
On August 6, 2019, President Kovind issued a Proclamation, CO 273, putting the Rajya Sabha’s recommendation into effect. All clauses of Article 370 ceased to operate, except Clause 1 which was amended to state that the Constitution of India applies wholly to the State, removing the special status awarded to Jammu and Kashmir.
On August 9, Parliament passed the Jammu and Kashmir Reorganisation Act, 2019. This Act bifurcated the State of Jammu and Kashmir into two Union Territories—J&K and Ladakh.
Petitions were filed challenging the constitutionality of the dilution of Article 370 and the bifurcation of the State into two Union Territories.
On August 28, 2019, a 3-Judge Bench led by former CJI Rajan Gogoi referred the case to a 5-Judge Constitution Bench.
On October 1, 2019, 5-Judge Constitution Bench of the Court comprising Justice N.V. Ramana, S.K. Kaul, R. Subhash Reddy, B.R. Gavai and Surya Kant decided to hear the case from November 14th, 2013. The petitioners sought the case to be placed before a larger Bench. On March 2nd, 2020, the Bench refused to refer it to a larger Bench.
On July 3, 2023, the Supreme Court listed the matter to a Constitution Bench led by Chief Justice D.Y. Chandrachud. The Bench assembled on July 11, 2023 and decided to hear the challenge from August 2, 2023.
Abrogation of Article 370 was a rectification of the Government’s previous mistakes
In a bid to show the Court that Article 370 was a benevolent exercise in restoring rights to the people of J&K, Mehta began to list out various “shocking” discrepancies in the rights awarded to the rest of India and to the state. He submitted that the Presidential Order of 1954 diluted many critical provisions of the Constitution, including fundamental rights, before making it applicable to J&K.
First, entire parts of the Constitution were made inapplicable to the state. This included 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), 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. This, Mehta argued, allowed the imposition of different restrictions to freedom of speech of the people of J&K. 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. He argued that it was “unthinkable” in a democracy to not have these rights.
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 also drew attention to Article 35A which was inserted to the Constitution as a result of the 1954 Order. This provision restricted the right to employment and acquisition of property within J&K to “permanent residents” of the State. He argued that this was an “artificial class” created by the provision and it was discriminatory as it only gave benefits to “permanent residents” of the State and nobody else. Attorney General R. Venkataramani chimed in and declared that the insertion of Article 35A was not a “modification” but rather an amendment to the constitution which only applied to a certain class of people (permanent residents).
Chief Justice D.Y. Chandrachud pointed out that Article 35A essentially deprived the people in other parts of India of three fundamental rights: the right to residency, the right to acquire permanent property (which was a fundamental right back then) and the right to employment. The Court could not question this as Article 35A provided “immunity” to these violations. In other words, the Court’s power of judicial review was taken away. The Solicitor agreed with the Chief and stated that with the abrogation of Article 370, these violations came to an end.
Mehta said that it was “unfortunate” that some people of J&K believed in the value of Articles 370 and 35A. “People were convinced that this was not a hindrance to progress, they were not deprived of rights, they were told they are special and were told to fight for it” he declared. He said that after the abrogation of Article 370, investments and the tourism industry has boomed in the state, and employment and income has increased in the region. He is expected to substantiate this claim tomorrow.
Constituent Assembly and Legislative Assembly were always interchangeable
Mehta then argued that in the context of J&K, the term Constituent Assembly always meant Legislative Assembly. In 1951, when Yuvraj Karan Singh issued a Proclamation to create a Constituent Assembly to draft a Constitution for the State, Mehta argued that J&K was already a part of India under Article 1. Therefore, the Constituent Assembly could never have created a “Constitution” when it was already bound by another. So, Mehta submitted, the J&K Constituent Assembly made a “legislative enactment”, much like a legislative assembly would do.
He then argued that the terms “Constituent Assembly” and “Legislative Assembly” were used interchangeably, in a “floating way” in the J&K context. For instance, in the C.O. 39 issued in March 1952, the Constituent Assembly was treated as the Legislative Assembly for the purpose of election of the President. Mehta argued that this showed that they were effectively the same body, and that until the Constituent Assembly dissolved, it passed several laws, apart from the J&K Constitution as well. The Bench then reminded him that the two were equated in the C.O.s as well as for the purpose of law making, only because there was no Legislative Assembly in J&K at the time.
Mehta disagreed, and stated that it was not just an interim solution while the Legislative Assembly was formed. There appeared to be a practice of using these words interchangeably when one term became otiose. For instance, he pointed out, in Article 370, the ‘Sadr-i-Riyasat’ was changed to the ‘Governor’ when the ‘Sadr-i-Riyasat’ was made obsolete.
Article 370 was envisaged to be temporary, Unification of J&K to India was the ultimate goal
Relying on the speeches made in the Lok Sabha by Jawaharlal Nehru in 1963 and statements of former leaders from the state and representatives in the Parliament, namely Inder Malhotra, Vishnu Kamath, Sham Lal Saraf, Keshavrao Sonawane, DC Sharma, and Mansinh P. Patel, in 1964, Mehta argued that Article 370 was intended to be temporary. Jawaharlal Nehru had stated that Article 370 is “part of certain transitional provisional arrangements. It is not a permanent part of the Constitution. It is a part so long as it remains so”, highlighting that there was “no doubt that Kashmir is fully integrated.”
Inder J. Malhotra, former MP from Jammu had stated that “The people of the State have no special liking for this Article 370 which exists in the Constitution, and we shall be very happy as soon as this is omitted.” Hari Vishnu Kamath, who was a member of the Constituent Assembly and later a member of Parliament, had stated that if J&K’s accession to India was considered to be irrevocable, “there cannot be two opinions on the question that the article must go”, and that “if this article is repealed, the State will derive the same benefits as other States of the Union are deriving from their relationship with the Indian Union”. Sham Lal Saraf, a former minister of J&K and a member of the state’s Constituent Assembly, had taken the view that once the barrier created by Article 370 was removed, and the state would “function as any other part of the country, the people will very much benefit.” Diwan Chand Sharma, member of Parliament, had viewed Article 370 as not just a wall, but a “mountain which stands between India and Jammu and Kashmir.”
Chief Justice D.Y. Chandrachud interjected to remind the Union that these were just views of individual members of the Parliament. “We are concerned with the collective decision of the Parliament as a body”, he said. Mehta tried to convince the Bench that this was how the members of Parliament understood Article 370, and chose to “leave it at that”.
Suspension of Article 3 when a State is under President’s Rule is conventional
The Petitioners had argued that the Union had played a “fraud on the constitution” while abrogating Article 370, as they suspended the provisos and explanations under Article 3 when the state was under President’s rule to abrogate Article 370 without “reference to the legislature of the state”. To this, today, Mehta argued that it is a “constitutional practice” to suspend Article 3 and its provisos when a state was under President’s rule.
He stated that since the first ever case of Presidential Rule imposed on Kerala in 1959 to date, proviso to Article 3 has always been suspended in a state during this time. The reason, he clarified was that under President’s Rule, the Legislature of a state is suspended. Therefore, any provision which requires the consultation of the state Legislature also stands suspended. There was no “sinister motivation” behind this, Mehta exclaimed, it was a “constitutional convention”.
Similarly, he added, it was also not surreptitious for Parliament to assume the role of a state’s legislative assembly and make laws for it when it is under President’s Rule. He informed the bench that when Punjab was under President’s rule, Parliament assumed the role of its legislative assembly and reorganised the State. It bifurcated the region into Punjab and Haryana, made Chandigarh a Union Territory and gave parts of the state to Himachal Pradesh. So, it was not uncommon for Parliament to suspend Article 3 and assume the role of a legislative assembly to make laws for a state when it is under President’s Rule.
Chief Justice D.Y. Chandrachud interrupted the Solicitor General asking what the need for suspension of Article 3 was if Parliament could assume the powers of the legislative assembly anyways. Mehta responded that it was to ensure that in the event that a legislative assembly had not dissolved and was in ‘suspended animation,’ it could not “do anything.” Presumably, the Solicitor’s justification seems to be to avoid complications of the legislative assembly coming back and passing a resolution against the decision of Parliament.
Extending this line of thought, the Solicitor also declared that it was not unusual to reorganise a State into a Union Territory as for all practical purposes, states and UT’s were the same. “A Union Territory is as much a part of federalism as a state” he said. He suggested that at the time, Parliament felt it was essential to make J&K a Union Territory, but this will be undone soon.
Justice Khanna however pointed out that while this explanation may be accepted for Ladakh, the petitioners’ argument that J&K—a state had been “downgraded” to a UT, remained unanswered. Mehta is expected to clarify this position tomorrow.
With no plea, petitioners have no reason to argue against power of Governor to dissolve legislative assembly
Seeking to discredit the grounds for the petitioners’ arguments, Mehta pointed out that the Governor’s Rule imposed on 20 June 2018 or the dissolution of the Legislative Assembly on 21 November 2018 were not challenged in Court. He stated that the Governor’s Rule was challenged 14 months after it was imposed, only after the President’s Rule was declared in 2019. The dissolution, he submitted, has not been challenged till date.
He was specifically targeting the submissions made by Senior Advocates Kapil Sibal and Nitya Ramakrishnan, against the Governor’s powers to dissolve the Legislative Assembly. 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.”
Mehta stated that the issue of dissolution and governor’s powers were dealt with in Gagan Bhagat v. Union Of India. When the bench suggested that this may have been the reason that the petitioners had not added this to their prayers, Mehta smiled and said “they came to know [about this case] when I said it in my written submissions, they were not aware of it”.