Article 370 Hearing: Ten Key Highlights From SG Tushar Mehta's Arguments Before Supreme Court

On 5 August 2019, the central government made the decision to revoke the special status of Jammu and Kashmir and reorganise it into two union territories by revoking Article 370.

In 2019, several petitions challenging the abrogation of Article 370 and the Jammu and Kashmir (J&K) Reorganisation Act, 2019 were referred to a Constitution bench.

Consequently, a five-judge Constitution bench, headed by Chief Justice of India (CJI) D Y Chandrachud, has been hearing a batch of petitions challenging the abrogation of Article 370 of the Constitution, since 2 August 2023.

On 28 August at 10:55am, Solicitor General (SG) Tushar Mehta commenced his arguments in defence of the Government of India's decision to abrogate Article 370.

Ten Key Highlights From His Arguments Before The Supreme Court Bench:

1. Merger Agreement not essential for integration:

In his argument, SG Mehta highlighted the subordinate nature of the J&K Constitution compared to the Indian Constitution.

He provided the Bench with a comprehensive list of states that became part of the dominion of India without signing a merger agreement, offering valuable insight into the historical context.

He further asserted that signing such an agreement is not a necessary condition for integration with the union of India.

2. Article 370 and Article 367 could be used to amend any part of Constitution, including the basic structure:

SG Mehta emphasised before the bench that any provision of the Constitution can be amended or nullified by utilising the combined power of Article 370 and Article 367.

He argued that through an administrative action by the President and the Governor of the state, it is possible to amend, alter, or even eliminate any provision of the Constitution. Additionally, new provisions can be created using the combined authority of Article 370 and Article 367.

SG Mehta highlighted that this route had been utilised multiple times in the past, permitted under Article 370 until 5 August 2019, when it ceased to be applicable.

Prior to this, any provision or article could be removed, with Article 370 being regarded as superior even to the basic structure of the Constitution.

3. Articles 21, 22 were not made applicable to J&K, Preamble applied without 'secular', 'socialist':

Expressing disbelief, SG Mehta stated that Articles 21 and 22 were not made applicable to J&K, which he considered unthinkable in any constitutionally governed civil society.

According to him, Article 19 had an added sub-article (7), which remained in effect until 1979. This sub-article allowed for "reasonable restrictions" as determined by the appropriate legislature, allowing citizens to apply their fundamental rights against the state while the legislature decided on reasonable restrictions.

He also pointed out that the Preamble of the Constitution of India was extended to J&K, but the words "socialist" and "secular" were excluded from its application. SG Mehta found it shocking that various provisions of the Constitution were selectively applied to the region over time.

4. People not defined as 'permanent residents' deprived of fundamental rights:

SG Mehta emphasised that Article 35A of the Constitution introduced a separate clause for the "permanent residents" of J&K.

He pointed out that individuals not meeting the artificially defined criteria of "permanent residents" were entirely stripped of their fundamental rights.

SG Mehta lamented that people were led to believe that this situation did not hinder progress or deprive them of their rights, and they were encouraged to fight for what they thought was their special status.

5. Benefits accruing to the people of J&K from post-abrogation of Article 370

SG Mehta pointed out to the Bench that since the abrogation of Article 370 and the introduction of Article 35A, investments into the region are pouring in and that the tourism industry is booming.

He added, ‘...Now, 16 lakh tourists have come. New hotels are coming up which gives employment to a large number of people — from tangawala to officials!’

He also told the court that the impugned constituional order has made application of welfare legislations possible in the state.

6. The Constitution of J&K is at par with legislation only, not Constitution as we understand it:

SG Mehta stated, "The Constituent Assembly is not a law-making body in that sense. My submission is that the Constitution of J&K is at par with legislation only; it is not a kind of a Constitution as we understand it, not a document of governance."

He referred to the Constitution (Application to Jammu and Kashmir) Order, 1954, to highlight the modification made to Article 367 in its applicability to J&K.

The Order stated that “references to the Legislature or the Legislative Assembly of the said State shall be construed as including references to the Constituent Assembly...”.

He also added that in the absence of the Legislative Assembly, the term "Constituent Assembly" was used synonymously as both are co-equal organs in the context of Jammu and Kashmir.

7. Article 370 was intended to be a temporary provision:

SG Mehta argued that Article 370 was always meant to be a temporary provision and could be removed at any time, as stated by various parliamentarians.

He also mentioned a private member's bill introduced in 1964 by Prakash Vir Shastri, which aimed to abolish Article 370.

8. J&K Constitution had to be repealed; cannot co-exist with the Constitution of India:

SG Mehta argued, "Ultimately I would show that the Constitution of J&K had to be repealed because it can never coexist. Once you apply the entire Constitution, you cannot have a situation where there is a separate document of governance operating. According to me, it (J&K Constitution) is a separate piece of legislation."

He also referred to the Supreme Court’s judgment in Mohammed Maqbool Damnu vs State of Jammu and Kashmir (1972) to contend that if an authority contemplated under Article 370 ceases to exist, it can be replaced by the successor.

9. Political arguements are being made as no petition challenges President's rule:

SG Mehta contended that, "Today, there is no challenge to the dissolution of Article 370...The petitions which Mr Sibal argued.. these are petitions filed by two members of the Parliament belonging to the Jammu & Kashmir National Conference...no challenge either to the Governor’s Rule, the President’s Rule or dissolution of the legislative assembly."

He further said, "...For half an hour a political argument was made. I am trying to show that there was no challenge, but these arguments were submitted."

10. During President’s Rule, the Parliament exercises the role of the state legislature in all states:

SG Mehta argued that whenever the President’s Rule is imposed, the Parliament exercises the role of the state legislature under Article 356(1)(b) in all states.

He mentioned that 248 laws have been passed till date where the Parliament has acted as the state legislature during the President’s Rule, including reorganisation of the state of Punjab.

SG Mehta also apprised the Bench that whenever the President’s Rule is imposed under Article 356, the provision to Article 3 is suspended in each and every case and that what was done in J&K was not unique.

He further added, "...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 etc. The government had to take proactive steps."

Around 4.05pm, the court was adjourned for the day. The hearing will be continued today (29 August).