During the hearing, he maintained that the Indian Constitution was amended in various ways but didn't apply to J&K due to Article 370. He cited various articles including 20, 21, and 161 that weren't present in the J&K constitution and “deprived people of basic rights e.g. tribal rights.”
He presented instances where Parliament had exercised powers of the state legislature during the President's Rule in various states, indicating a precedent for such actions.
Chief Justice of India (CJI) and SG Mehta asked whether the Constituent Assembly of J&K was more akin to a legislative assembly or a Constituent Assembly. The CJI noted the distinction between the two terms and raised questions about the application of Article 370 in this context.
SG Mehta argued that Article 370 evolved over time and was used for specific purposes based on the situation.
He called Article 35A an artificial & discriminatory provision that conferred special privileges, and these were only discontinued after August 5, 2019.
“People have lived in Kashmir for decades and have no right to jobs and land, why? Why this discrimination” he asked the bench.
The discussion further delved into the impact of Article 35A on fundamental rights, particularly the rights to employment, property acquisition, and settlement. The Solicitor General argued that the abrogation of Article 35A had led to increased investments and development in the region.
The hearings witnessed discussions on issues such as representation in Parliament, changes in the legislative structure, and the role of the President during President's Rule. Both SG Mehta and the Chief Justice of India noted that the Constitutional practice must not undermine the legality of actions taken.
SG also cites tourism flow, and business investments to defend Article 370 abrogation.
The day's arguments concluded with discussions on the status of Ladakh as a Union Territory and the relevance of Article 356. The bench adjourned for the day, with the court set to resume the hearings at a later date.
SG Mehta commences his arguments for the day.
SG Mehta takes the bench through a list of States that became a part of the Dominion of India without signing a merger agreement.
He had earlier argued that signing a Merger Agreement was not mandatory for states to be fully integrated with India.
SG Mehta: All were applied with modifications. For example, Art 368 was applied but with a provision that any amendment made in the Indian Constitution would not ipso facto apply to J&K unless applied through Art 370 route.
SG Mehta: Just to illustrate, for example, Constitution of India amended and inserted Article 21A- Right to Education. It never applied to J&K till 2019 because this route was never followed.
CJI: Likewise you said that in the Preamble amendment of 1976 was applied with modifications. So secularism and socialism amendment was never adopted in J&K.
SG Mehta: Yes, even the word "integrity" was not applied.
SG Mehta: I'll show that J&K constitution was subordinate to Indian Constitution.
CJI: In your note, you have contended that the Constituent Assembly of J&K was in the nature of a legislative assembly and not a Constituent Assembly. That, strictly speaking, there may be a problem.
CJI: That would be a problem for two reasons- That's not how Article 370(2) refers to it as. It refers to it as Constituent Assembly of State.
CJI: But more importantly, once A 238 makes certain provisions of Constitution inapplicable to Part III states, esp J&K, which would be brought into force by the Constituent Assembly framing a Constitution, then it may be difficult to purely call it a legislative assembly.
SG Mehta: It's in the segment of my arguments...
CJI: Then we will deal with it when we reach there.
SG Mehta: Whenever a word in Article 370 becomes otiose for that post not being in existence, it is immediately replaced by its successor. Sadar-i-riyasat is replaced by Governor etc.
SG: Despite full knowledge that Article 370 is a part of the Constitution, despite having accepted in the Constituent Assembly debates of J&K that it is temporary, they chose not to make any recommendation under sub-article (3). That is a separate link. I'm flagging it here.
SG: The effect of 370 with 367- is that by an administrative act of the President and the Govt of the State, any part of the Constitution can be amended, can be altered, can even be destroyed and not applied, and new provisions can even be created in Constitution of India.
SG Mehta: Article 35A was created, which is a part of Constitution of India, only to be applied to the State of J&K.
SG Mehta: This 370(1) route and 367 mechanism has been used more than once. Because 370 permits it. It stopped only after 5 August, 2019. Otherwise, any provision, any Article (could be removed). It was placed on a very high pedestal, even above the basic structure.
SG Mehta: 370 has continuously been evolved depending upon the need 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 with recommendation.
SG Mehta: Notably, it did not apply the following at all (to J&K)- DPSPs, the states in Part B, scheduled and tribal areas. Any tribal reservations etc never applied in J&K till 2019.
SG Mehta: The words socialist and secular were not applied in Preamble. They were applied to directive principles but that's amendable by state legislature.
SG Mehta: This CO provided for a separate provision for permanent residents of J&K in Article 7- that is citizenship of the Indian Constitution by inserting 35A.
SG Mehta: It removed references to Scheduled Tribes from Article 15(4). So one, you alienate those who do not fall within the artificially created definition of permanent residents. Second, you alienate those belonging to scheduled tribes.
SG Mehta: In Article 19, a sub-article (7) was added by way of modification which remained till 1979- 25 years. The words "reasonable restrictions" were construed as meaning "such restrictions as the appropriate legislature deems reasonable".
SG Mehta: The citizens apply fundamental rights against the State. And now the legislature would decide what are the reasonable restrictions.
SG Mehta: Preventive Detention - Art 21 & 22 would not apply...It is unthinkable in any constitutionally governed civil society. Article 35C was added. India's constitution was amended by the Government of India in consultation with state government adding this.
CJI: Mr SG, you're appearing for the Government of India. In constitutional theory, the GOI is a perpetual entity.
SG Mehta: The government of India has a right to say that this ought not to have been done and correct itself.
SG Mehta: The government can correct itself, which we did. I'm justifying that correction. I am not saying that government and this government - it's our government.
SG Mehta: The mistake of past should not befall on the future. That's why, what we did in those days, I'm justifying our undoing it in 2019.
SG Mehta: A separate category of permanent residents was created and any law which provides for this kind of special privileges would not be hit either by Article 14 or Article 19 or any part of Constitution.
SG: The impact was- people from PoK were driven out both Hindus and Muslims. They were driven out in '47 during raids. They were not permanent residents till 2019. There were a large number of Safari Karmacharis who filed IAs and were brought from other states for manual work.
SG: Despite living for decades together, no person outside J&K can acquire property. Meaning thereby, no investment!
CJI: See the 1954 order. It applied the entirety of Part III (fundamental rights) and so A 16, 19 applied to J&K. Now, you bring in Article 35A which creates an exception under 3 areas: employment under state govt, acquisition of immovable properties, and settlement in the state.
CJI: Though Part III is applicable, when you introduce A 35A, you take away 3 fundamental rights- Article 16(1), the right to acquire immovable property which was then a fundamental right under 19(1)(f), A 31, & settlement in the state which was a fundamental right under 19(1)(e)
CJI: So those that the Constitution expressly made the provisions of Article 19 applicable, which would include these three rights and Art 16, by enacting 35A, your virtually took away the fundamental rights.
SG Mehta: Employment, is also a right to life.
CJI: But there is a direct right under Art 16(1)...what was taken away was employment under State govt.
CJI: Employment under State govt is specifically provided under Art 16(1)..so while on the one hand Art 16(1) was preserved, 35A directly took away that fundamental right & granted immunity to any challenge on the ground that it would deprive you of a fundamental right under 16.
CJI: Likewise, Art 19 - it recognises the right to reside and settle in any part of the country...so all three fundamental rights were essentially take away by 35A. The power of judicial review was taken away.
SG: This happened till 2019. I'm urging your lords to look at the matter from the perspective of people of J&K. Something which is impugned here is a constitutional exercise of power which confers fundamental rights, applies the entire constitution, brings J&K people at par.
SG Mehta: It applies all laws which are welfare legislations to J&K which weren't applied earlier. I have the list with me. Till now, people were convinced by those who guide them that this isn't a hindrance in your progress, it's a privilege you fight for.
SG Mehta: Your lordships have atleast two major political parties defending 370, including 35A!
SG Mehta: Now the people have realised what they had lost. Now, because of 35A, investments are coming. Now because the policing is with centre, tourism has started. J&K traditionally didn't have much of big industries. They were cottage industries. Source of income was tourism.
SG Mehta: Now, 16 lakh tourists have come. New hotels are coming up which gives employment to a large number of people - from tangawala to officials!
AG: Art 35A is not a modification of Art 35. It's a creation of a new article.
SG Mehta: Constituent Assembly is not a law making body in that sense. My submission is that Constitution of J&K is at par with a legislation only, it's not a kind of a Constitution as we understand, not a document of governance.
SG Mehta: Till 2019, the Hon'ble judges of J&K HC used to subscribe to this oath- "true allegiance to the constitution of the State". They were under an obligation to apply constitution of India. But the oath they took was expressing their allegiance to J&K...
SG Mehta refers to Assembly debates to establish that parliament saw Art 370 as a "temporary provision"
CJI: These are individual views. Ultimately, Mr Solicitor, these are not expressions by parliament as a collective body.
Sibal: During these debates, Nehru intervened and said that if you talk about letting outsiders buy land in J&K, I'm totally opposed to it because businesses will come and destroy the entire state. He was very adamant.
SG Mehta: That is a wrong point. I'm not being political but from a citizen's point of view, unless investment comes, you never develop.
The bench has risen for lunch. Arguments to continue at 2 p.m.
The bench reconvened.
SG Mehta: Till 2023, Governor's rule under Section 92 of the Constitution of J&K has been imposed 8 times and President's Rule 3 times.
SG Mehta: Today, there is no challenge to the dissolution of 370. The petition which Mr Sibal argued - is a petition filed by two members of parliament belonging to NCP. No challenge either to the governor's rule, president's rule or dissolution of legislative assembly.
SG Mehta: One IA is filed by the former CM. In 2022, IA for impleadment...
Sibal: There was a PIL filed before this court for governor's rule- dismissed by J Gogoi. I'd be very happy if this court were to say that because all this was not challenged the entire process followed would be Constitutional.
SG: Why is he presuming what I'm going to argue?
SG: I'm talking about this 'cause half an hour of a political kind of argument was made.
Sibal: I've never made a political argument in this court
SG: But if there is no challenge and you raise a plea that governor should never have dissolved, it becomes a political argument.
SG Mehta: The argument was advanced with a nuance that this was a device to bring certain parliamentary actions by suspending the provisions to the proviso to Art 3- namely, the reorganization.
SG Mehta: As a matter of fact, right from the inception whenever president's rule is imposed, proviso to Art 3 is stayed. We have studied every proclamation issued by the President under Art 356 with regard to each state, not just J&K. It's suspended in every case.
SG Mehta: There is a reason. In SR Bommai, the law laid down is that the legislature cannot function without council of ministers. Here, additionally the legislature was dissolved. But otherwise whichever provision mentions something to be done by legislature-it is suspended
SG Mehta: 1959 was the first use of 356. Mr Namboodiripad's government was removed and the President's rule was imposed. There also, suspension of Art 3 proviso was there.
SG: During the president's rule, there are certain steps taken to infuse confidence amongst people. There were situations which were alarming - everything may not be on record. Pulwama happened etc etc. The govt had to take proactive steps.
SG: The first step is 1st March 2019. This is a well-considered administrative decision-making making keeping in mind several factors- national integrity, sovereignty, security, border issues, internal issues of the particular state etc
SG Mehta: Now comes an important event to ensure that those staying in border areas have a sense of social security.
SG Mehta: 1st July 2019- it is critical to note that I&K reservation amendment act was passed by the parliament exercising power as legislative assembly of state. This is to show that parliament has exercised powers or J&K assembly under A 356(1)(b)
SG Mehta: Prior to the aforesaid act, some category of reservation was available only to border areas of Kashmir division. Border areas of all divisions were facing frequent attacks and shellings.
SG Mehta: There are several steps required to be taken in view of several circumstances that the nation faces. These are steps as pre-cursors.
SG Mehta: Whenever there is a President's rule, parliament exercises the power of state legislature under 356(1)(b) in all states.
SG Mehta: I have taken, till date, whichever are the acts passed by parliament acting as a legislature of state, during president's rule. The list is given. There are 248 such clauses passed.
SG Mehta: Even budgets of a state have been passed by the parliament acting as a state legislature.
SG Mehta: During the president's rule, parliament acting as a state legislature, even reorganized the state of Punjab.
CJI: The constitutional practice cannot obviate the legality of what is done.
SG: Even the views are taken here. In Punjab it wasn't done.
CJI: So Parliament would then give views to itself and it would also enact the legislation for reorganization.
SG: That's the inevitable consequence.
CJI: Would that really be consistent with the federal doctrine?
SG: It won't destroy federalism at all, I'll show it
SG: I'll show that it is still a state for all purposes. It has a legislature. Only the power of police is with the president.
SG: 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.
SG Mehta: It is necessary that for some time this remains under the Union as UT. The Hon'ble home minister in the house has said that this is a temporary measure. Ultimately, J&K will become a state. That's a separate argument.
Justice Khanna: Converting Ladakh into a UT- the other side has argued is downgrading it. Number two, Article 356- the maximum tenure is 3 years. We have crossed those 3 years
The bench rises for the day.