Hearing on Article 370: Separatist Article 370 and SC’s pertinent questions and inspiring observations – Part V

The Solicitor General put forth some more significant arguments in support of what the Narendra Modi government did in August 2019

The Solicitor General put forth some more significant arguments in support of what the Narendra Modi government did in August 2019
The Solicitor General put forth some more significant arguments in support of what the Narendra Modi government did in August 2019

The previous 4 parts of the article can be accessed here Part 1, Part 2, Part 3, Part 4. This is the fifth part

SC hearing on Article 370 abrogation

Solicitor General took on NC, PDP

Further defending the Union government’s August 2019 reforms on August 28, Solicitor General Tushar Mehta tore into the Kashmir-based National Conference and People’s Democratic Party. Without naming them he said: “Citizens have been misguided that the special provisions for J&K were ‘not discrimination but a privilege’. Even today (these) two political parties are before this court defending Article 370 and 35A.” In fact, he started his submissions by referring to the “list of states that became a part of the Dominion of India without signing a merger agreement[1].”

J&K Constitution subservient

As for the status of the now defunct J&K Constitution, the Solicitor General very rightly said: “There is enough material to show that the Constitution of J&K is subordinate to the Constitution of India and the Constituent Assembly of J&K was, in reality, a legislative assembly making laws…The Constituent Assembly of J&K was for all purposes functioning as the state legislature apart from framing a subordinate document called ‘the Constitution of J&K’ and also made legislations by passing several laws…The Constituent Assembly of J&K, in the exercise of its limited powers, approved and adopted the Constitution of J&K which was nothing but a ‘legislative piece’ for internal governance with the overarching application of the Indian Constitution…The effect of Article 370 was such that by the administrative act of the President and the state government, any part of the Constitution of India with respect to J&K can be amended, altered, or even ‘destroyed’ and new provisions can be created…After the 42nd amendment, the words ‘Socialist’ and ‘Secular’ were not made applicable to J&K. Even the word ‘integrity’ is not there. Fundamental duties were not there, which exist in the Indian Constitution” [2].

“The High Court judges who were appointed to the High Court of J&K used to take oaths on the constitution of the state. Though they were discharging duties under the Constitution of India, the oath was on the constitution of the state…,” Tushar Mehta also said [3].

Not just this, the Solicitor General further said: “(Article) 370(1) route and (Article) 367 mechanism have been used more than once. Because 370 permits it. It stopped only after August 5, 2019. Otherwise, any provision, any Article could be removed. It was placed on a very high pedestal, even above the basic structure. Article 370 has continuously evolved depending upon the needs of that situation. Earlier, it was Maharaja, then when Maharaja ceased to exist, it became Sadar-i-Riyasat. Since the Constituent Assembly happened to exist, it was by recommendation…[4].

Article 35A discriminatory

Taking on the Nehru government, Tushar Mehta said: “The J&K Constitution provided for a separate provision for permanent residents of J&K in Article 7. It removed references to Scheduled Tribes from Article 15(4). Other Articles 19, 22, 31, 31A, and 32 were applied with some modifications…(Illegal and unconstitutional) Article 35A of the Indian Constitution…gave special rights to only permanent residents of the erstwhile state; it was discriminatory, to say the least. Under the provision (A-35A), people like sanitation workers working in the erstwhile state for decades were not given equal rights like that of permanent residents of J&K. This discrimination continued till the provision was abrogated in 2019. Non-permanent residents of J&K were not able to purchase lands, could not avail of scholarships, employment in the state government…The court (should) look into issues from the ‘eyes of people’. People were misguided by those – who were supposed to guide them – that this was not discrimination but a privilege…The Constitution of J&K needed to be repealed because it could not co-exist with the Indian Constitution”[5].

The Solicitor General further said: “The impact was that people from Pakistan Occupied Jammu and Kashmir (read West Pakistan) were driven out — both Hindus and Muslims. They were driven out in 1947 during the raids. They were not permanent residents till 2019. There were a large number of safai karmacharis brought (by the Bakshi Ghulam Mohammad government) from other states (in this case Punjab)…They are not permanent residents and, hence, do not get any of these benefits…Despite living there for decades, no person from outside J&K can acquire property. Meaning thereby, no investment…Now investments are coming…Tourism has started. Traditionally, J&K didn’t have big industries. There were cottage industries and the main source of income was tourism…16 lakh tourists have come and new hotels were coming up giving employment to a large number of people.”

“The Government of India has a right to say that this (application of 35A) ought not to have been done and correct itself which we did…I am justifying that correction. I am not saying that government and this government…The mistakes of the past should not befall the future. That’s why, what we did in those days, I am justifying our undoing of it in (August) 2019”[6].

It needs to be underlined that Kapil Sibal had intervened to defend Article 35A. As a matter of fact, he said: “Jawaharlal Nehru had opposed outsiders buying land in J&K as they would come with business and it would destroy the place.”[7].

Governor’s rule, dissolution of Assembly imperative

The Solicitor General made some significant points while countering the arguments of the petitioners’ lawyers regarding the imposition of the Governor’s Rule, President’s Rule, and dissolution of the J&K Assembly. He, inter-alia, said: “On November 21, 2018, the Legislative Assembly of the state was dissolved but there was no contemporaneous challenge by any political party or any citizen or leader. Today, there is no challenge to the dissolution of Article 370…The petitions which Kapil Sibal argued…these are petitions filed by two members of Parliament (Akbar Lone and Hasnain Masoodi) belonging to J&K National Conference…No challenge either to the Governor’s Rule, the President’s Rule, or dissolution of the Legislative Assembly…For half an hour a political argument was made (by Kapil Sibal). I am trying to show that there was no challenge, but these arguments were submitted…But if there is no challenge and you (Kapil Sibal) raise a plea that the Governor should never have dissolved (the Assembly) it becomes a political argument[8].

“On June 20, 2018, under Section 92 of the J&K Constitution, the Governor’s Rule was imposed in the state due to the failure of constitutional machinery in the state and only one petition challenged it after 14 months (which was rejected by Supreme Court). No political party challenged the Governor’s Rule or dissolution of the Assembly. We are being called at midnight in this court for a hearing on forming governments, but here there are no challenges. Yet, arguments have been made about how can the Governor dissolve the House. I am unable to understand the hollowness of the arguments…In J&K, Governor’s Rule has been imposed eight times and President’s Rule three times,” the Solicitor General also said while defending imposition of the Central rule and dissolution of the Assembly[9].

Alarming situation

Holding his ground firmly, the Solicitor General further apprised the constitution 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…There is a reason that this is done…Under the President’s Rule when the legislature is dissolved, any provision which requires some action to be done by the 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 (Feb 14, 2019) etc. The government had to take proactive steps…Whenever the President’s Rule is imposed, the Parliament exercises the role of the state legislature under Article 356(1)(b) in all states. 248 laws have been passed to 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…Even the views are taken here. In Punjab, it was not done…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…It is necessary that for some time J&K remains a Union Territory…Home Minister Amit Shah made a statement in the Lok Sabha that the Centre will grant full statehood to J&K at an appropriate time[10].

Federal diversity can still exist within federalism

On August 29, the Solicitor General put forth some more significant arguments in support of what the Narendra Modi government did in August 2019. He, among other things, said: “Article 370 is the result of a promise made by then Dominion of India to the people of J&K” and tried to make it more “easier to persuade lordships on the correct interpretation.” He said: “Articles 291 and 362 provided for privy purses. But the Centre under 366 removed the term princely states and, hence, there were no need for privy purses (any longer). That is not under consideration…Federalism is part of the basic structure but the federal diversity can still exist within federalism. It was the people of the state who were behind the integration of the state with the Union of India. Article 370(1) permits the Prime Minister and Chief Minister of the state to make changes, and alterations, choose not to apply any provision and like 35A create a constitutional provision only for J&K…Like this discretion is now used to ensure that such a thing can never happen again…370 was the only Article which permitted President to change any other article…So 367 mechanism was issued in the past…The recommendation is of the body. Concurrence is of the government and the government does not mean Governor…If not the Council of Ministers, then Governor…There is no such provision in the Constitution or in the world like Article 370 and in a federation like ours, there cannot be such an Article. Making 370(1) permanent will make an unconstitutional provision to remain in the Constitution. If the proviso becomes otiose, then the main Article does not become otiose at all…There were hartals every two or three weeks, and banks, and schools were closed…when state reorganization takes place, there is a blueprint as to how the Central government will work once the states are reorganized…like how the youth will be taken into the mainstream, etc…This is a one of its kind situation which will not arise again.”

Union Territory imperative

Tushar Mehta further argued and defended not just the reorganization of J&K State but also defended the government’s decision to create two UTs out of the erstwhile J&K State. His arguments read like this: “See the consistent, repeated situation we are facing for decades. Here one part of the territory is occupied by Pakistan…PoJK…This is a problem faced by the nation since decades and these decisions are not taken as knee-jerk decisions…These are policy considerations…Youth who used to be employed by terror groups, etc., or interests inimical to India are employed gainfully now…It can be seen that these considerations decided whether the reorganization was correct or not. The blueprint ensured what was done so that J&K returned to normalcy…UT here (J&K) is not permanent in nature…I will show that that is not of a permanent nature and we want this to become a state again…I will submit…I have taken instructions (from the government) and the instructions are that the UT is not a permanent feature and I will make a positive statement the day after tomorrow…It’s necessary that for some time it (J&K) remains under the Union as a Union Territory. The Hon’ble Home Minister has said in the House that this is a temporary measure. Ultimately, J&K will become a state…Ladakh would remain a UT…but here we are only on J&K…In terms of local body district development council elections…So far as Ladakh is concerned…it consists of two units, Leh and Kargil…Leh elections are over…For Kargil, the elections will be in September…We have created two UTs…One UT has police powers with the Central government and the rest is what a state has…It (Ladakh) is a UT without a state legislature but it has all the attributes of a state…Every entry apart from police is there and I do not even have to mention why police is out of the purview”[11].

As for the conversion of a state into a UT, the Solicitor General said that the Parliament has the power to do it. He said: “There is no restriction on Parliament’s power in this regard” and gave the examples of Tripura and Arunachal Pradesh which became UTs first before becoming states. And describing the case of J&K as a complicated one, Tushar Mehta said: “There are several considerations…What we see today is a result of the blueprint we have. After this decision, there were elections which took place of district development councils. There are 34000 elected people. Democracy is going to the grassroots. There are a large number of schemes introduced…” [12].

We are all Lakhanpal

After the Solicitor General concluded his submissions, Attorney General R Venkataramani took the floor to defend the abrogation of Article 370 and the benefits of abrogation. He, inter-alia, said: “Puranlal Lakhanpal wanted to contest elections and now he can, after 61 years, in J&K. In a way, we are all Puran Lakhanpal. That is the significance of what has been done now. Article 370 is nothing but the finality of the integration of J&K into the Union of India. The argument that during the President’s Rule, you could not have taken the irreversible decision without resorting to Article 368 is not correct…if the understanding of 370 was to enable completion of the situation where complete national integration would be over. Is the President stopped from excluding taking stock of what has happened under 370(1)(d)? She is entitled to ask this question at any point in time…This provision was meant to work during a certain period and now the period has come to an end…Assembly cannot say that they want to retain 370…It is an advice…The Constituent Assembly does not have the power to ask it to retain it. Recommendation to the President is not a binding…”

Significantly, the Solicitor General again spoke. He said: “Only one question, your Lordships can consider over this holiday tomorrow – when Constituent Assembly was being dissolved…Suppose the members would say ‘Now in the exercise of our powers under Article 370(3), we recommend to the President, that the Constitution which we have framed will provide for a semi-kind of monarchy and now, therefore, you delete Article 370.’ Would it not go against the very spirit with which 370 was incorporated? That it has to be temporary and you (J&K) are an integral part?… So, in this case…would the President be completely denuded and have to act as per the desire of the Constituent Assembly? It cannot be for the simple reason that the debates in the Constituent Assembly repeatedly say, this is a temporary provision.”

Actually, it was Kapil Sibal’s intervention which made the Solicitor General to intervene. Sibal had said: “There can’t be negation principle read into the proviso, the principle of negation, whittling down the entire scheme of Article 370. You can’t read it into the proviso”[13].

SC’s questions, observations

It was expected that the constitution bench would put questions and make observations and it happened. It is heartening to note that the bench on August 28 made certain very significant observations. For example, it “prima facie agreed with the Centre’s submission on pleas challenging the abrogation of Article 370 that the Constitution of J&K is ‘subordinate’ to the Indian Constitution, which is on a higher pedestal.”

At the same time, however, it appeared that the constitution bench was not in full accord with Tushar Mehta’s plea that “the Constituent Assembly of the erstwhile state, which was disbanded in 1957, was in reality a Legislative Assembly.” “At one level, you (Tushar Mehta) may be right subject to rejoinder arguments from the other side (petitioners’ side) that the Constitution of India is really a document which lies on a higher platform than that of the Constitution of J&K,” the bench said. At other level, “it would be difficult to accept the second limb of the argument that the Constituent Assembly of J&K was, in reality, a Legislative Assembly as proviso to Article 370 specifically mentioned that it (CA) brought certain subjects into the fold of the state upon its approval.” Not just this, Chief Justice Chandrachud said: “By enacting Article 35A, they (in this case Nehru government) took away fundamental rights of equality, liberty to practice profession in any part of the country and even granted immunity from legal challenges and the power of judicial review”[14].

Addressing the Solicitor General, the Chief Justice also said: “The constitutional practice cannot obviate the legality of what is done”[15]. Besides, he told him that “he was representing the Government of India and in constitutional theory, the Government of India was a perpetual entity[16].

Justice Sanjiv Khanna also made an observation. He referred to the arguments advanced by the petitioners and said: “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”[17].

We will survive if the nation survives

On August 29, Chief Justice Chandrachud asked many serious questions and made many serious observations as far as the conversion of the state into UT and Assembly elections in J&K and paramount national interest were concerned. Emphasizing that “restoration of democracy” in J&K “is very important”, he asked the Centre if it had a timeframe and roadmap to grant statehood to the erstwhile State of J&K.

“We are conscious of the fact that these are matters of national security. We understand that ultimately, preservation of the nation itself is the overriding concern. But without putting you in a bind, you and the Attorney General may seek instructions at the highest level. Is there a time frame in view?”, said the Chief Justice. He also asked: “Why Parliament should not be allowed to create a UT out of a state to meet national security challenges, with the promise of returning it to a state within a time limit?”

Referring to states like Manipur, Mizoram, etc., the Chief Justice said: “The creation of UTs…you have, on one hand, examples like Chandigarh, carved out of Punjab…It was part of a state and became a UT…Then you have a progression where certain areas of existing states became UTs…For example, Mizoram, Manipur, Tripura…They became UTs…in the process of making them a stable administration to become states. You cannot immediately make them states…Parliament can certainly make that – Today the situation is not ripe to make them full-fledged states, today we will carve them out, and give them the status of UT. At a future point of time, when Parliament feels that they are now sufficiently stable institutionally, we will make them states which we did in the North-East,” he said.

“Can the Union not have control for a certain stipulated period to bring stability?”, he asked and, at the same time, he said: “Because let’s face it, whether it’s a state or UT, all of us survive if the nation survives. If the nation itself doesn’t survive, there is no relevance of state or UT…Should we not give that allowance to Parliament to postulate that for a certain period, in the interest of the preservation of the nation itself, in the interest of preservation of the Union itself, we want, for a certain stipulated period, that this particular state should go in the fold of UT – on the clear understanding that this shall revert to a position of a state over a period of time… In a given case, it may be 6 months, 1 year?”

The Chief Justice did not stop just here. He further observed: “Equally, restoration of democracy is very important. It is a vital component of our nation…We take your (Solicitor General’s) point that the progression has already begun” and asked, “Is there a roadmap?”

Border states

As for the Solicitor General’s arguments concerning J&K as a border state, the bench put a question: “How it (Union government) distinguished between J&K and other border states to apply reorganization?” The query came when Tushar Mehta said J&K is “one of a kind case. If Gujarat or MP was to be bifurcated, the parameters would be different. But in J&K, considering its strategic importance, border state, history of terrorism, history of infiltration, and history of outside influence, there would be several considerations in the mind of the government. We share borders with at least four countries, all of which may not be friendly, to put it mildly…History too was taken into account. How the situation in Kashmir is developing, the number of deaths of civilians, the number of deaths of security forces, the number of attacks, the number of stone-pelting, paralyzing schools, hospitals, banks, business houses, everything. All these are policy considerations”[18].

Process of integration

Besides, the constitution bench wanted to know from the government’s law officers if the abrogation of Article 370 was “really a logical step” to achieve J&K’s complete integration with India.

“The wide chasm between absolute autonomy, as it existed on January 26, 1950, and complete integration, as it was brought on August 5, 2019…That chasm has been substantially bridged by what was happening in between. So, really, in the sense it was not a complete migration from absolute autonomy to absolute integration.

It is obvious that a substantial degree of integration has already taken place in the last 69 years. Therefore, what was done in 2019 was it really a logical step forward to achieve that integration?” the bench asked the Attorney General[19].

(To be continued)…

1. Text in Blue points to additional data on the topic.
2. The views expressed here are those of the author and do not necessarily represent or reflect the views of PGurus.


[1] Supreme Court hearing on Article 370 abrogation | Day 11Aug 28, 2023, The Hindu

[2] Constitution of J&K subordinate to Indian ConstitutionAug 29, 2023, Daily Excelsior

[3] Constitution of J&K at par with legislation only: MehtaAug 28, 2023, India Today

[4] Article 370 Case : Live Updates From Supreme Court [Day 11]Aug 28, 2023, Live Law

[5] J&K Constitution ‘subordinate’ to Indian Constitution: Centre to Supreme CourtAug 28, 2023, India Today

[6] Is Conversion Of Jammu & Kashmir As Union Territory Consistent With Federalism? Supreme Court Asks Centre [Day 11]Aug 29, 2023, Live Law

[7] Supreme Court voices drawbacks of Article 35A in ongoing Article 370 hearing Aug 28, 2023, Thaiger

[8] Supreme Court hearing on Article 370 abrogation | Day 11Aug 28, 2023, The Hindu

[9] J&K Constitution ‘subordinate’ to Indian Constitution: Centre to Supreme CourtAug 28, 2023, India Today

[10] Supreme Court hearing on Article 370 abrogation | Day 11Aug 28, 2023, The Hindu

[11] Article 370 case: LIVE UPDATES from Supreme Court [Day 12]Aug 29, 2023, Bar and Bench

[12] Article 370 case: ‘J&K not unique’, Supreme Court cites Punjab, Northeast in bifurcation argumentAug 30, 2023, Live Mint

[13] Article 370 case: LIVE UPDATES from Supreme Court [Day 12]Aug 29, 2023, Bar and Bench

[14] Article 370 Hearings: Article 35A Comes Under Critical Scrutiny Before Supreme CourtAug 29, 2023, The Wire

[15] Supreme Court hearing on Article 370 abrogation | Day 11Aug 28, 2023, The Hindu

[16] Hearing on Article 370: Statehood of J-K will be restored, Centre tells SCAug 28, 2023, The Tribune

[17] Supreme Court hearing on Article 370 abrogation | Day 11Aug 28, 2023, The Hindu

[18] Is there a time frame to grant statehood to J&K… When will elections be held, SC asks CentreAug 30, 2023, Indian Express

[19] SC wants Centre to tell when electoral democracy will be restored in J&KAug 30, 2023, Daily Excelsior

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