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

The arguments of the Solicitor General on August 31st sparked a huge reaction in Kashmir

September 3, 2023

The previous 5 parts of the article can be accessed here Part 1, Part 2, Part 3, Part 4, Part 5. This is the sixth part

SC hearing on Article 370 abrogation

No Assembly polls, statehood for now

The solicitor General kept his word and on August 31, told the constitution bench that the Government of India was ready for Assembly elections. At the same time, he expressed the inability of the Union government to give an exact time frame for granting statehood to J&K UT. “Elections can be held in J&K ‘anytime from now’ with most of the work on the voters’ list over…J&K’s UT status is ‘a temporary thing’ and restoration of complete statehood will ‘take some time…Elections in J&K will be held in three stages — first panchayat, second municipal polls, and third legislative assembly polls. ‘It is for the Election Commission of India and Election Commission of State to take the call on which election will take place first and how’. The updating process of the voters’ list is almost complete and will be completely over in a month,” said Tushar Mehta.

The Solicitor General further said: “We are dealing with an extremely extraordinary situation…The exact time frame for the restoration of complete statehood in J&K cannot be given at the moment. It might take some time. Various steps are being taken to restore the status of the state in J&K. Terror-related incidents have gone down by 45.2 percent when compared to 2018. Infiltration, which was one of the biggest concerns in the erstwhile state, is down by 90.2 percent…Incidents of stone pelting and hartals which were 1,767 in 2018 are now nil. Casualty of security personnel has gone down by 60.9 percent, and organized bandhs, which were coordinated by secessionist groups, have gone down from 52 in 2018 to nil in 2023….For restoration of statehood, several steps are being taken and investments of around Rs.7,000 crore have been promised out of which over Rs.2,000 crore has already been done…Several projects are underway and out of the 53 Pradhan Mantri Development Projects, 32 have been completed…Peace does not merely come by policing”[1].

To make his point, Tushar Mehta also said: “We are dealing with an extremely extraordinary situation. The state will have to be infused with several things so that it becomes a state so to say. Those actions are initiated…For the purpose of ensuring the UT becomes a complete state — as it should have been like any other state — the central sector scheme investment is Rs.28,400 crore. The investment proposals from other than central schemes are Rs.78,000 crore. And till date, the actual investment made is Rs.2,153 crore…The transparency brought in by e-initiatives ‘shows us that the projects have risen from 9,229 in 2018 to 92,560 in 2023. More and more people are participating in e-tendering and several e-initiatives and, therefore, that is also giving a boost and youth is gainfully employed’…This is how progressively we are proceeding to make it a complete state…It is heartening to know that 1.88 crore tourists visited J&K in 2022. ‘The main industry so far was tourism. Now industries are coming. Till date in 2023, 1 crore tourists. It generates employment in various sectors’. These steps being taken by the Central government can be taken only if there is UT,”[2].

Sibal’s intervention amusing

As was expected, advocate Kapil Sibal didn’t appreciate the manner Solicitor General put across the government’s view. He intervened. Objecting to the bench recording the figure given by the Central government, Sibal said: “It should not be taken on record as it will ‘affect the mind’ of the court, which is adjudicating the constitutional issue of Article 370…Even otherwise, the petitioners will have to counter these facts being brought on record by the Centre”[3].

Sibal further said: “They (Union government) are saying there were zero hartals. Five thousand people were put under house arrest. How will there be hartals, when you don’t allow them to go to hospital. Let us not make a mockery of democracy. Section 144 was imposed and the internet was shut off. This court has recognized all of this as well. People could not go to hospitals, even let us not talk about bandhs”[4].

Chandrachud’s assurance

The line pursued by Sibal created a situation that made the Chief Justice to give an assurance that the bench’s approach would be impartial and constitutional. He said: “What he (Solicitor General) has given is in pursuance to the court’s query and what steps the Union of India has taken to restore the electoral democracy. We should be fair to the Solicitor General as he has only given the roadmap…The nature of the development which the government says took place post-August 2019, this may not be of relevance to your constitutional challenge, and therefore, what they (the Union government) respond to constitutional challenge, that has to be dealt with independently…These are matters where there can be and should be policy differences but that can’t affect the constitutional arguments. We place these facts in the perspective of the roadmap to statehood of J&K. This isn’t a justification and cannot be to a constitutional challenge”[5].

AG on the integration process

Attorney General R Venkatramani also made a couple of points to defend the abrogation of J&K’s special status. He said: “The determination of Article 370 must occur at some time, notwithstanding whatever happened over a period of time…Such a determination can occur in more than one way – in a way that will advance the larger interest…When you talk of the substitution of a Legislative Assembly by a Legislative Assembly, we are looking at the non-legislative functions of the legislature. If the Constituent Assembly had recommended to the President before 1957, it would have done the same job…There is only one solitary interpretation – that it is to aid the constitutional integration process. Whatever has happened even thereafter is to be seen in the light of that. If any deviation occurs, it is open to correction”[6].

Article 370 a political compromise: Salve

Leading constitutional lawyer Harish Salve, who argued for some Safai karamcharis in the case supporting the abrogation of Article 370, said that he had made a three-page roadmap of what he will submit. He, inter-alia, said: “The Article in question prevented integration of J&K with India. The history of Kashmir did give rise to apprehensions. So the border state, with all its sensitivities, is what compelled the Constituent Assembly to agree with the special arrangement. And with their wisdom, they said you have the power to pull the plug…It may be difficult to find logic in each of these because it was a political compromise. What was a Constituent Assembly put in place? It was a compromise to assuage. One cannot search for too much logic. The safest thing for this court, in my submission, as a matter of constitutional interpretation of such provisions, which is political, the court has always said you must give these the widest possible meaning…”

Salve further said: “Article 14 argument that I was earlier given such rights in J&K—will not be open. As such a resident outside J&K could not say why am I made subject to Parliamentary legislation when this subject in the State of J&K is not. This is a relationship between the Union and the unit of the Union. Applying or disapplying the constitutional provision would not give an individual citizen right. This is adjusting the accession. In international law, a citizen can never assert that he had certain rights in an earlier regime. You have only certain rights as available to you”.

“The second point is that the power exercised is legislative in character. Applying provisions and disapplying provisions, modifying provisions of a law is legislative in character. Plenary power is not subject to the challenge of excessive delegation because it is provided by the Constitution itself. The power under 370 is plenary in nature and this is a power conferred by the Constitution. There is an arrangement for the phased integration – keeping and reserving the power of disapplying the provision by the President. 370 is a part of the constitution itself. There is no question of excessive delegation. The power has been provided to the President. When a law is made to protect civil liberties – 21 is a part of the basic structure, a law made to protect civil liberties is a law aligned with Article 21 and therefore aligned with the basic structure. The nature of the provision is such that if it confers plenary powers in the area of governance and the area of constitutional adjustments – your lordships will give it the widest possible interpretation. If we are wrong on this, the 356 test – can a change of permanence be made while the 356 regime is going on – it has two answers…Abuse of power is really the power of competence. This repeated reference to the basic structure is surprising. The basic structure was not a principle as an independent stand-alone constitutional right. Basic structure is the limitation inherent in 368 and constitutional amendments are tested with reference to basic structure doctrine,” Salve argued[7].

The upshot of the whole argument of Salve was that “Article 370 was a provision ‘made for a phased transfer of power’, although J&K’s accession to India was absolute and irreversible”[8].

Article 370 buried

Lawyer Rakesh Dwivedi, who was representing intervenor, advocate Ashwini Upadhyay, started his submissions/ arguments on August 30 with a very interesting statement. The statement was: “The burden is on the petitioners to show that what they are saying is unquestionably right. Second, if there are two views – that view should be adopted that sustains in the exercise of power and not defeats the exercise of power. So the burden on them is to show that what they’ve put forth is the only view possible.”

His arguments read like these: “This is a constituent power which is laced with elements of the act of state. 370 cannot be decided on the basis of sentiments. Sentiments are on both sides. This is a power of a very wide scope and wide impact on the whole of the country. Where you are amending the Constitution – that power is constituent power. It cannot be described as an ordinary executive power of the President or even a power that is legislative in the nature of an ordinance-making power. In constitutional matters, it is always possible to take two views. The power to modify in itself is very wide. There are five kinds of constituent powers in the Constitution. First is the original constituent power through which the Constitution was framed. We are all concerned with Kashmir and there is a presumption of validity in favour of the law (370) and it has to be rebutted by them that the only interpretation possible is the one that the petitioners are arguing…If two views are possible, then the one that sustains the exercise of power has to be preferred. The President recommending finance bills to be passed is different, the President of India has a host of roles under the Indian Constitution and not all roles are the same framers of India also knew that the President of India is a continuing office. That is how the power of judicial review has to be used…The fourth is like the provision of Articles 3 and 4 where amendment of schedules of states can be altered and the fifth is Article 2…I am dealing with CO 237. CO 372 is answered by the Solicitor General. I am saying that irrespective of 356, invocation of Article 273 is sustainable on the main part. On the one hand, if you accept our submissions, the rights of the people of Kashmir will be expanded. A recommendation of an inferior authority when it goes before a superior authority can never be binding, that also if the body is a temporary body.”

Dwivedi made yet another very interesting statement. It read: “Article 370 had reached the time when it had to be buried and now it has been done so and thus the Presidential Orders need to be upheld”[9].

Recommendation not necessary for 370 abrogation

On August 31, Dwivedi put forth more arguments to make his case. He, among other things, said: “The word ‘recommendation’ in Article 370 meant that the assent of the Constituent Assembly of J&K was not necessary for abrogation. ‘The abrogation of the provision was not an executive decision and that the entirety of Parliament, which included Members of Parliament (MPs) of J&K, had been taken into confidence’. While framing the Constitution for J&K, its Constituent Assembly did not enjoy the same freedom that the Constituent Assembly of India did…The word ‘recommendation’ under Article 370(3) means that the assent of the Constituent Assembly was not necessary to abrogate Article 370.”

Dwivedi further said: “Article 370 (3) says notwithstanding anything in the foregoing provisions of this Article, the President may, by public notification, declare that this Article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify: Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification…The J&K Constituent Assembly was bound by various things, including various diktats of the Indian Constitution. It had to ensure justice, liberty, and fraternity. It was also bound by Article 1. It could not declare that we’re not the federal unit of India. They couldn’t say that any part of their territory could not be part of India…Article 370 was always considered to be a temporary provision and the speeches of Dr. B R Ambedkar, N G Ayyangar (in Constituent Assembly), Jawaharlal Nehru, and Gulzarilal Nanda (in Parliament) clearly indicate that complete assimilation of the State of J&K at par with other States, in due course, was envisaged from the very beginning. Therefore, Article 370 was mentioned in the Constitution of India as a temporary and transitional…The framers were conscious that the Constituent Assembly would be dissolved after framing the Constitution of J&K, yet they did not provide that upon dissolution of the J&K Constituent Assembly, the power of the President would cease or become defunct. They also did not declare Article 370 as a permanent provision…This was done for a good reason as the power to repeal Art 370 was vested by the main part of the President of India, who is the head of the State and is advised by the council of ministers, which is responsible to Parliament. The fact that the President has over the years issued several Constitution Orders and has brought about fuller assimilation of J&K and parity with the other states of India shows that the trust was rightly reposed in the President…The constitutional practice shows all relevant actors understood the power of the President as continuing despite cessation of J&K Constituent Assembly”[10].

Article 370 a temporary provision

Advocate V Giri, who appeared for intervenor, All India Kashmiri Samaj (AIKS), submitted that Article 370 of the constitution, as is textually explicit, was intended by the framers of the Constitution as a temporary provision. To prove his point, he said: “The cessation of operation of Article 370 has always been considered as dependent on a Presidential Order. Once Article 370 is abrogated, then the entirety of the constitutional provisions, including those providing for the distribution of legislative power, the exercise of executive authority, separation of powers among different organs of the state, and provisions providing for a federal structure, would ipso facto apply”[11].

Chief Justice’s observations

On August 31, Chief Justice Chandrachud asked a couple of questions and made a few observations. Some of them read: “The existence of a state is a very vital element of federalism…Even if it is a legislative power, it is amenable to judicial review under Article 14. A legislative power cannot be challenged on grounds of being malafide…In two judgments though, we have said that a particular law protects the basic structure. Places of Worship Act, in Ayodhya, we said – that in pursuance of the basic structure. The second we said that the amendment for Delhi – of 239AA was in furtherance of basic structure…”[12].

Sharp reaction in Kashmir

August 31st Solicitor General’s arguments evoked a very sharp reaction in Kashmir. Certain parties felt so outraged that they even questioned the approach of the constitutional bench. The National Conference (NC), for example, described the submissions made by Solicitor General Tushar as “a tactic to divert attention from the main issue of the challenge to the legality of the Centre’s August 5, 2019 decisions.” The NC, in fact, said: “While the party will keep advocating for the restoration of democratic rights of the people of J&K, which include the holding of Assembly polls, we would continue to fight for our constitutional and legal rights as well…Mehta’s submissions in the top court about updating the voters’ list in J&K were also aimed at creating more ‘confusion’. The voters’ list is primarily being updated for the municipal elections, it has got nothing to do with the Assembly polls.”

Jammu and Kashmir People’s Conference (JKPC) chairman Sajad Lone said: “The submissions made by Mehta in the apex court were not very different from the statements that came from the Centre on the issue over the last four years. I am disappointed, not because of J&K, but partly because of the judiciary. This is the highest pedestal of the judiciary and if it asks a question and the answer is the same and as ambiguous and evasive as it was four years ago, then I think it is a matter of concern…No timeline was given by the BJP-led Centre regarding restoration of statehood or holding the Assembly polls in J&K and even the arguments presented were political and not legal.

These are very specious, fallacious arguments and I hope and pray that legality prevails, justice prevails and as has been apparently observed in the highest court, constitutional challenges are decided on the basis of what is written in the Constitution and not on the basis of these other arguments that are political in nature.”

J&K Apni Party chief, Altaf Bukhari, said: “There was nothing new in the submissions made by Mehta in the top court.

This is like the same vague statements given by the Centre after August 2019. I think either the Supreme Court is not being taken seriously or the government is not serious about doing anything here…The Centre has been saying since 2019 that elections will take place in J&K.

They are saying it every day and we too are continuing with our political activities, but this is not something new. We had expected a firm date from the Supreme Court for the restoration of statehood, but there is no firmness in their (Centre’s) statements. Whether they are telling the truth or lying, the court will decide, but there is no seriousness in the statement…We see that elections will not take place even as the situation is normal.”

The Congress also didn’t lag behind. It said: “The Solicitor General’s statement cannot be trusted. He has not said anything definite. Our party’s stand is that statehood should be restored immediately as they (Centre) have promised it and that should be followed by the election…The party never had much hope, but now, we have lost all hope.”

The separatist Gupkar group’s spokesperson and state secretary CPIM M Y Tarigami also bemoaned what the Solicitor General told the bench. He said: “The Centre has said on numerous occasions that statehood will be restored to J&K at an appropriate time.
When will that appropriate time come, perhaps we will get to know in 2024. If there is some change (after the Lok Sabha polls), they will then perhaps consider it…Why should we trust them? They have not said when the Assembly polls will take place or when statehood will be restored. This is a joke. Mehta has said there are thousands of panchayat members. That is the case in Gujarat, Uttar Pradesh or Himachal Pradesh too. So why are Assembly polls conducted there? Why are you joking with us?”[13].

The People’s Democratic Party (PDP) as a party, inter-alia, said: “Now that the government has told the Supreme Court that it is ready for elections anytime, we think it has put the EC on a very tight spot.” PDP ideologue and former minister Naeem Akhtar also reacted. He said: “We haven’t gone to court seeking the status of the state, only status quo ante, i.e., restoration of Articles 370 and 35A. Elections without statehood don’t mean anything…You have a state in Delhi, full-fledged, except land and police, which has been reduced to lesser than a municipality, despite court injunctions. We are already under the AFSPA. You have an avalanche of state agencies watching you. What would be the position of a CM or a minister in such a place?”[14].

The hearing remained inconclusive and would continue on September 4.

To be continued…

Note:
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

References: –

[1] Polls In J&K Can Be Held At Any Time, Restoration Of Statehood Will Take Some Time: Centre To SC – Sep 1, 2023, Daily Excelsior

[2] Supreme Court hearing on Article 370 abrogation | Day 13 – Aug 31, 2023, The Hindu

[3] Elections in J&K ‘anytime from now’, EC to decide dates: Centre to SC – Sep 1, 2023, Daily Excelsior

[4] Article 370 Highlights: 5,000 under house arrest in J&K, mockery of democracy, says Sibal – Aug 31, 2023, India Today

[5] Supreme Court hearing on Article 370 abrogation | Day 13 – Aug 31, 2023, The Hindu

[6] Supreme Court hearing on Article 370 abrogation | Day 13 – Aug 31, 2023, The Hindu

[7] Article 370 Highlights: 5,000 under house arrest in J&K, mockery of democracy, says Sibal – Aug 31, 2023, India Today

[8] Article 370 was a political compromise, Salve tells SC – Sep 1, 2023, Indian Express

[9] Article 370 Highlights: 5,000 under house arrest in J&K, mockery of democracy, says Sibal – Aug 31, 2023, India Today

[10] Article 370 Case : Live Updates From Supreme Court [Day 14] – Sep 1, 2023, Live Law

[11] Abrogation Of Article 370 Was Not Executive Decision, Supreme Court Told – Sep 1, 2023, NDTV