During the hearing, Mehta outlined a series of dates before India’s independence to justify the abrogation.
He opened his arguments by saying that the citizens of Jammu and Kashmir were deprived of privileges for 75 years due to confusion over the temporary or permanent nature of Article 370.
He argued that this confusion had created a psychological duality within the region, which was resolved with the abrogation.
Mehta further contended that the abrogation of Article 370 had conferred fundamental rights and other privileges upon the residents of Jammu and Kashmir, putting them on equal footing with the rest of the country. He referenced the history of accession, asserting that the moment accession was complete, sovereignty was subsumed within the larger sovereignty of India.
During the course of the hearing, Mehta addressed various aspects of the historical context, including the drafting of the Constitution and the involvement of different princely states in framing their own constitutions. He emphasized that the argument that Jammu and Kashmir had a unique status was factually incorrect, as many princely states were in the process of framing their constitutions during the same period.
Mehta's arguments also focused on the interpretation of various constitutional provisions, addressing the distinctions between external and internal sovereignty, the integration of states within the Indian union, and the autonomy enjoyed by different states.
He also read A G. Norrani’s book, VP Menon’s biography to justify his arguments.
Detailed hearing:
SG Tushar Mehta commences his arguments.
SG: As the petitioners said your lordships will be making historical decision in more than one ways.
SG: This is the first time after 75 years that your lordships would be considering the privileges that the citizens of J&K had been deprived of till then.
SG: Because of this confusion on whether the Art 370 was temporary or permanent, there was a psychological duality in the mind of a particular section of our country. That duality ended with this abrogation.
SG: After going through the facts, it will be clear that a large number of fundamental rights and other rights will now be conferred upon the residents of J&K and they would be fully at par with the rest of their brothers and sisters of this country.
SG: Justice Gavai had asked about the constitution of Prajasabha. The Prajasabha was to have 75 members of which 12 would be officials, 33 elected members and 30 nominated members.
SG Mehta refers to the list of dates and underlines the history of accession.
SG: The moment the accession is complete, the sovereignty gets lost, it gets subsumed with the larger sovereignty.
CJI: You may also read Section 5 because what is the importance of Accession - that Section 5 gives us. We need to highlight that.
CJI: You will also have to deal with the argument they raised that sovereignty itself has internal and external components. And internal sovereignty remained.
SG: We are conscious of that. We will also show that means adopted were strictly within constitutional parameters.
SG Mehta takes the bench through the history of accession.
SG: Substantial arguments were made that J&K had a special place in the geographical British India because that was the only part which had a constitution in 1939. That is factually incorrect. There were 62 states which had their own Constitutions.
SG: The argument that J&K had a special status since the beginning which continued till date is factually wrong. The foundation is wrong. 286 states were in the process of framing their Constitution of this period of late 1930s.
SG: Eminent counsels of the day were engaged to help the princely states draw their constitutions.
SG Mehta states that Alladi Krishnaswamy Iyer was involved in making the constitution of a region in Madhya Pradesh, Rewa. However, his fee was found too exorbitant and thus, he dropped the drafting.
SG Mehta: As a matter of fact, some of them made their Constitutions and thereafter signed the accession also!
SG Mehta: The draft accession document was common to all. Everyone signed that.
SG Mehta: Manipur adopted a Constitution which on 26 July 1947 provided for fundamental rights and separation of powers and recognised the Maharaja as its constitutional head.
SG Mehta: Maharaja of Patna declared the setting up of a representative constitution making body on 24th Oct 1947.
SG: They were all making their Constitutions. Why these three subjects are kept by J&K also- defence, communication, foreign affairs. There is a small princely state. It cannot have its own army. British laid postal services & railways so communication was crucial.
SG Mehta: Foreign affairs, obviously they would want the greater power to control. Ultimately, everything started getting subsumed. Art 1 came and when first schedule came, only sovereign that remained was 'we the people of India'.
SG Mehta: The basic argument that J&K was the only princely state with its own constitution is factually incorrect.
SG Mehta continues reading from the list of dates on history of accession.
SG Mehta: J&K had four representatives including Lt Sheikh Abdullah ji. But the relevant part is that when more and more princely states started acceding and accepting the constitution of India, they started participating in framing of Constitution.
SG Mehta: All these states which became a part of India had differently worded instruments of accession. Some said taxation would be within our domain only. But thereafter when legislative history progresses...this is how countries are formed.
SG Mehta: The interpretation given by the petitioner was that the Autonomy was foundational stone of constitution making...states are still Autonomous in terms of list II, Schedule VII etc. Several provisions give them internal autonomy while being part of India.
SG Mehta: 'Equality of Status' was the goal while framing the constitution. One segment of the union cannot be deprived by rights enjoyed by the rest of the country.
SG Mehta: "The Maharaja stated that he would never accede to Pakistan as they were setting up a theocratic state..." This is by Narayani Basu and VP Menon's book. Narayani Basu was I think the granddaughter of VP Menon and a very seasoned bureaucrat.
SG Mehta continues reading the history of accession.
SG Mehta: We have dealt with every princely state in a democratic manner. And everyone has voluntarily come, including J&K as I will show further.
SG Mehta refers to Sardar Patel's statement- "Nor would it be my policy to conduct the relations of the new department of the States in any manner which severs of the domination of one over the other. If there would be any domination, it would be that of our mutual interest."
SG Mehta continues quoting from the list of dates to underline the history of accession.
SG Mehta: The system of accession of Indian States, that is the section 6 of the Order of 1947- this was, in my reading, an attempt to ensure that unification becomes as difficult as possible because everyone was permitted to put their own terms and conditions.
SG Mehta: See how beautifully our founding fathers dealt with that situation, unified our nation, and the ultimate result was Art 1.
CJI: Actually this was done to create a sense of confidence in the princely states. That you're acceding to the union but we are giving you the ability to have reservations in your Instrument of Accession...
CJI: We must also put ourselves at that time- the Union of India wanted these princely states to come within its fold. So we gave them assurance that you can decide today that you will only give certain subjects to the Union.
SG Mehta: That can be a better way of reading it. That is why Sardar Patel said that basic theme was mutual interest.
SG Mehta refers to the model draft of the Instrument of Accession signed by all states.
CJI: So this letter (written by the Maharaja) is taken by Mr Menon to Sardar Patel. And the Maharaja said that he had instructed that if Menon comes back well and good, otherwise he said shoot me when I'm asleep.
SG Mehta: Yes, he said if Menon comes don't wake me up but if he doesn't come, shoot me. So long as there is a life in me, I'll defend my people, he said.
SG Mehta: Then the accession was concluded. Now see what happened after.
SG Mehta: The moment Jinnah heard that India accepted J&K' accession...Jinnah invited Nehru to Lahore to discuss the problem. See the diplomacy - Mountbatten was eager to accept the invitation and Nehru was inclined to agree with Mountbatten.
SG Mehta: But Sardar Patel was strongly opposed to the proposition on the ground that Pakistan was the aggressor and India ought not to follow the policy of appeasing the aggressor.
SG Mehta: Nehru was running a high fever. It was decided that Mountbatten should go alone. VP Menon writes this
Bench: The High fever also seems to be an act of diplomacy.
SG Mehta: It was a diplomatic illness and was necessary at the time.
SG Mehta continues taking the bench through the history of accession and the formation of the Union of India and argued J&K wasn't unique.
SG Mehta: Every state had put their own conditions.
SG Mehta: Till the princely states remained, even after Independence, they were called the 'Rajpramukhs'. Like J&K’s sadre riyasat
CJI: Until 1956 amendment when the Rajpramukhs were abolished.
SG Mehta, referring to the model IoA: "Nothing in this instrument shall be deemed to commit the united states in any way to acceptance of any future constitution of India"- this is not in J&K.
CJI: The only difference was that this constitutional history led to the ultimate integration in every sense of the other States. They didn't follow the 370 route. Because for J&K, the Constitution decided to go to 370. Other states merged completely.
SG: I'm showing this to establish that a stand which has been taken that we had a special feature and therefore we were given special treatment and this provision was a privilege given to us which can't be taken away- I'm showing that there were many princely states...
SG: All princely states subsumed themselves with the Union of India because of the Act of State doctrine and because of Article 363 and Article 1.
CJI: They came into Indian union as a volition. They joined voluntarily.
CJI: That was probably the genius of Sardar Patel, there is no doubt about it. But the fact remains that insofar as J&K is concerned, J&K went to the 370 route
SG: But why, how, and till what time will come subsequently.
CJI: So the point you're making for now is that the IoA of various princely states contained reservations. We have seen in regards to taxation, land acquisition, not binding themselves to accepting a future constitution.
CJI: We gave this option to the princely rulers that you come here on your own terms. We are not telling you to come on our terms.
SG Mehta: There was an argument that instrument of merger was a necessary attribute for a complete integration, otherwise, states had internal sovereignty. Many states didn't sign the instrument of merger!
SG Mehta: But from the date on which Constitution of India came into force and Article 1 came into force, they became integral part of Union of India. How J&K got seperated will come...
CJI asks for a list of states that joined the Union of India without a merger agreement and still became a part of the Union.
CJI: Mr SG, to paraphrase your submissions, it can be two fold- 1. The expression of reservations in IoA not unique to the IoA acceded to by Maharaja Hari Singh? 2. The execution of merger agreement was not a sine qua non to become a part of UOI.
SG: Yes.
SG Mehta: Description of Art 1 in the draft constitution is a "Union of States". The correct phraseology should be a "federation of states"...the use of the word Union is deliberate
SG Mehta: The drafting committee wanted to make it clear that though India was a federation, the federation was not a result of an agreement by the States to join in a federation. Thus, no state had the right to secede from it.
SG Mehta: The Federation is a Union because it is indestructible. The country is one integral whole it's people a single people, living under a single imperium...
SG Mehta: Till '76, Article 21 was applicable with a truncated way. Article 19- there was a sub article added as it was applied to J&K- that reasonable restrictions would be those which would be prescribed by the legislature.
SG Mehta: Meaning thereby, that the persons against whom citizens invoke Article 19 would decide what would be the reasonable restrictions.
SG Mehta (reading from Constituent Assembly debates): Pausing here for a minute so that the debate doesn't get boring. Maulana Hasrat Mohani was an eminent Urdu lyricist of his time. Most of us have heard his 'Chupke Chupke Raat Dinn Aasoon Bahana...' that is by him.
SG Mehta: The question is very important - why are you discriminating people of one state from other states? Your lordships would be shocked when I show you the discrimination. We have analysed how provisions were picked, modified, and applied to one State.
SG Mehta: So far, the residents of J&K were being deprived of what - I'll show you, till 5th August. Ayyangar said that the discrimination is due to special conditions of Kashmir, that state is not right for this kind of integration.
SG Mehta (reading from Ayyangar's statement): "It is the hope of everyone here that in due course even J&K would become ripe for the same sort of integration as has taken place in case of other states. Cheers."
SG Mehta: The petitioners are confusing internal sovereignty with autonomy. External sovereignty, noone can dispute lies with the Union. Internal sovereignty would mean autonomy of federal units. This autonomy is there with every state.
CJI: It's actually there with every institution. We have the autonomous authority to decide constitutional issues. So we can't say that internal sovereignty vests with us. We are an independent, autonomous institution under the Constitution.
CJI: They're saying that we gave up external sovereignty, no doubt. They say that course of events and the adoption of 370 would indicate that while there was a giving up of external sovereignty, internal sovereignty exercised by the then Maharaja, that was not ceded to India.
SG Mehta: This is accepting supremacy of our constitution and surrendering the sovereignty to the Constitution where the sovereign is "we the people of India".
CJI: This proclamation is on the same day as Dr Ambedkar's last address to the Constituent Assembly. By this point of the time, the entirety of Constitution had been formulated, including 370. Therefore, when he makes this proclamation, he makes this in light of Article 370.
SG Mehta: The preamble of this proclamation was based on the conviction that the best interest of the state requires that the constitution relationship established between the state and dominion of India should be continued as between the state and contemplated UOI.
SG: I'll show how Art 370 was till 2018. Some of the things are really shocking. Practically, two Constitutional organs- state govt and the President, in consultation with each other, can amend any part of the Constitution the way they want and apply it to J&K.
SG Mehta: The preamble of Indian Constitution was made applicable to J&K by way of a Constitution Order under Article 370(1)(d) in 1954. Thereafter, in 42nd and 44th amendment, the words "socialist" and "secular" were added. That was not made applicable to J&K.
SG Mehta: Till 5th August 2019, Jammu and Kashmir Constitution was not having either the term 'Socialist' or 'Secular'.
SG Mehta: I will show the devastating effect it would have if this constitution, which according to me is nothing more than a legislature, would not have been repealed the way we have done.
CJI: Eventually when you argue that this is not a constituent assembly but a legislative assembly in its original form, you'll have to answer how this squares up to clause (2) of A 370 which specifically says Constituent Assembly formed for purpose of framing Constitution of J&K
CJI: Because there is a textual answer which may militate against your line of approach. Anyway, we'll discuss that later
The bench rises for the day. Arguments to continue on Monday morning (28.08.2023)