Article 370 was a “right loss”, through which people of J&K gained a lot, Tushar Mehta on Day 11 of Article 370 hearings

On Day 11 of the hearings in a batch of petitions challenging the August 5, 2019 decision to put an end to the autonomy guaranteed to J&K under Article 370 of the Constitution, the Solicitor General of India Tushar Mehta argued that the people of Jammu and Kashmir “rightly lost Article 370 because through its loss, they got their fundamental rights”.

DAY 11 of the hearings  In Re Article 370 began with what some may call the quintessential Kashmir story in the context of India’s constitutional history.

Kapil Sibal informed the court that a Kashmiri lawyer who had appeared before the court on Day 9 of the hearings as a petitioner-in-person had come face-to-face with the consequences of seeking justice.

Zahoor Ahmad Bhat, the lawyer, who also works as a lecturer in J&K, had been suspended “for violation of provisions of Jammu & Kashmir (J&K) Civil Service Regulations and Jammu & Kashmir Government Employees Conduct Rules and J&K Leave Rules”.

In the six-minute argument by Bhat, he had submitted: “I teach Indian politics to the students in Jammu and Kashmir, and it is very embarrassing and very difficult for me. People like me since 2019, when we teach this beautiful Constitution and beautiful democracy and then they will ask, are we really a democracy since post 19th August 2019.”

A five-judge Bench of the Supreme Court, headed by Chief Justice of India (CJI) Dr D.Y. Chandrachud and also comprising Justices S.K. Kaul, Sanjiv Khanna, B.R. Gavai and Surya Kant, is hearing a batch of petitions challenging the August 5, 2019 decision to end the autonomy guaranteed to J&K under Article 370 of the Indian Constitution.

Solicitor General of India Tushar Mehta submissions

On Day 10 of the hearings, the court had asked Mehta to prepare a list of Princely States that had signed merger agreements with the dominion of India and those that had not.

For those states that have joined India through a merger agreement, the Bench wanted to consider the terms of the instrument of accession and whether they differed from the terms on which J&K signed the instrument of accession with India.

At the outset today, Mehta told the court that the documents that it had sought on Day 10 of the hearings were available in the national archives.

He submitted a one-page note on this. 

J&K Constitution was meant to be subservient to the Indian Constitution

Reading from his written submissions, Mehta referred to a proclamation issued by Karan Singh, son of Maharaja Hari Singh on May 1, 1951.

The proclamation established an elected Constituent Assembly to draft a constitution for the State of J&K.

Mehta stated that the body (Constituent Assembly of J&K) was merely named as the Constituent Assembly of J&K to draft the Constitution of J&K. However, it cannot be ‘equated’ with a sui generis Constituent Assembly of a sovereign nation.

He clarified that the effect of Article 1 of the Indian Constitution, as it is applicable to J&K, is that it conceives of J&K as a state within the Union of India. Therefore, the Article does not envisage that a constitution could be framed for the state outside the realm of the Indian Constitution.

Referring to Mehta’s written submissions, the CJI pointed out two aspects of Mehta’s argument. First, the Constitution of J&K was subordinate to the Constitution of India. Second, the Constituent Assembly of J&K was in the nature of the legislative assembly.

To the second aspect, the CJI could not agree. He averred: “Strictly speaking, there is a problem [with this interpretation] for two reasons.

He explained: “First, that is not how clause 2 of Article 370 refers to it. It refers to it as the Constituent Assembly of the State. 

More importantly, once Article 238 makes certain provisions of the Constitution inapplicable to Part III states in general and to the State of J&K in particular, which would be brought for the first [time] by the Constituent Assembly framing a Constitution for J&K. It is very difficult to call it a purely legislative assembly.”

Article 370 applied in a “floating manner”

Mehta answered the CJI concerns by referring to The Constitution (Application to Jammu & Kashmir) Amendment Order No. 39, 1952 (C.O. 39).

Mehta argued that through the C.O. 39, the President of India recognised the “Constituent Assembly” of J&K as the “legislative assembly” of the state for the purpose of election of the President of India. 

Your Lordships will find at the end of the chronology of [my written submissions] that Article 370 has been applied in a floating manner,” Mehta stated.

He continued: “Whenever it is required to use the word [Constituent Assembly] interchangeably with [legislative assembly], it is logically so used. Also, whenever a word becomes otiose in Article 370, it is immediately replaced by its successor.”

Through the C.O. 39, a modification to Articles 54 and 55 (manner of the election of the President) of the Indian Constitution as applicable to J&K was made.

One of the modifications was that the “reference to the elected members of the legislative assemblies of the states and to each such elected member shall be deemed to include, respectively, a reference to the members of the Constituent Assembly of the state and to each such member.”

To this argument, the CJI pointed out that a legislative assembly did not exist at that time. He said: “They had to make the C.O. to read that the legislative assembly shall also include a reference to the Constituent Assembly.”

When a word becomes otiose in Article 370, it is immediately replaced

Continuing the second aspect of his argument, Mehta told the court that whenever a word in Article 370 became otiose, it was immediately replaced by its successor. 

For instance, the term sadar-i-riyasat was replaced with the term governor of J&K in the Constitution (Application to Jammu and Kashmir) Order, 1954 (Presidential Order C.O. 48).

Mehta told the court to refer to the letter written by the former President of India Rajendra Prasad to the Prime Minister of India Jawarhalal Nehru on September 6, 1952.

The letter stated that Prasad promised to send Nehru a note about the legal and constitutional aspect of the proposal to substitute a system of elected head for J&K in place of the existing rajpramukh, who was the hereditary constitutional head of the state.

Although Mehta did not read the letter, he stated that it showed that Article 370 was such a drastic provision that no one could use it often.

He also referred to The Constitution (Application to Jammu and Kashmir) (Amendment) Order, 1952, C.O. 43, wherein, through a Presidential Order issued under Article 370(1)(d), the term rajpramukh was replaced by the term sadar-i-riyasat of J&K.

Mehta also stated that through C.O. 44, the explanation to clause (1) of Article 370 was modified by the President of India under Article 370(3) on the recommendation of the Constituent Assembly of J&K.

Mehta explained that in C.O. 44, the government of J&K would mean “the person for the time being recognised by the President on the recommendation of the legislative assembly of the State as the sadar-i-riyasat of J&K, acting on the advice of the council of ministers of the State for the time being in office.”

He remarked: “Article 370 has continuously evolved depending on the need of the situation at a point of time.”

Parliament of India understood Article 370 to be temporary

Mehta relied on the Lok Sabha debate of June 26, 1952, wherein N.C. Chatterjee, who was a member of the Parliament of India on Article 370, made certain statements regarding the Article.

Stating that there was no question of a plebiscite in J&K, he said: “I maintain that the accession [of J&K] is final and irrevocable. Under the [Indian] Constitution, Kashmir is an integral part of India. Under Article 1, the Indian Union consists of a federation of states, and J&K is a Part ‘B’ state. There cannot be any going back on that.”

Referring to the debate, Mehta stated that Dr Syama Prasad Mookerjee of Bharatiya Jan Sangh and Nehru established that the power exercised by the President of India over the other federating units remained plenary.

Mookerjee in this context had said: “In a democratic federal state, the fundamental rights of the citizens of one constituent unit cannot vary vis-a-vis the citizens of another unit. Are not the people of J&K entitled to the fundamental rights that we have given to the people of India minus J&K

There is no scope for varied constitutional patterns, disparities as between one federating unit and another, the legislative or executive authority of the units in respect of the states will be co-extensive with a similar authority in and over the provinces; subject to certain adjustments during the transitional period, the fiscal relationship between the provinces and the states and the Centre must also come under one authority.”

Nehru offered his reply as: “So Kashmir, obviously, is a constituent unit of the federation of the Union of India, but a difference has arisen— you please remember that, not originally— between Kashmir and the other states because subsequent to the earlier accession the other states have become integrated more which Kashmir has not and could not in the circumstances as I have tried to point out. But, nevertheless, it is a full constituent unit of India. 

Various things flow from it, various consequences— consequences for instance, in regard to the President of the republic [of India]. The President has certain authority which he exercises on behalf of the republic and wherever the constituent unit may be the President, he will exercise that authority in that measure.”

Mehta stated that even the Constituent Assembly of J&K understood Article 370 to be temporary.

“Shocking instances that continued for years”

Mehta, referring to the Presidential C.O. 48, told the court that while certain parts of the Indian Constitution were extended to J&K, certain other parts were not extended.

For instance, Articles 19 and 22 of the Indian Constitution were applied with modifications.

He pointed out that in Article 19, sub-clause 7 was added by way of modification which remained till 1979. Clause (7) stated that the words “reasonable restrictions” occurring in clauses (2), (3), (4) and (5) shall be construed as meaning such restrictions as the appropriate legislature deems reasonable. 

Mehta pointed out this would mean that the rights conferred under Article 19 of the Indian Constitution were not available to the residents of J&K.

Another instance which Mehta referred to as “shocking” was clause (c) of Article 35 inserted to the  clause (c) stated: 

[N]o law with respect to preventive detention made by the legislature of the State of Jammu and Kashmir, whether before or after the commencement of the Constitution (Application to Jammu and Kashmir) Order, 1954, shall be void on the ground that it is inconsistent with any of the provisions of this Part, but any such law shall, to the extent of such inconsistency, shall cease to have effect on the expiration of five years from the commencement of the said Order, except as respects things done or omitted to be done before the expiration thereof.”

This clause remained in force till 1974 as it was continued through future C.O.s, Mehta told the Bench.

When Mehta informed the court that clause (c) of Article 35 kept of getting extended through C.O.s

The CJI said: “You are representing the Union of India. In constitutional theory, the government of India is a perpetual entity.”

CJI was inquiring as to why the provision was extended for so long.

Mehta offered the following explanation: “The government of India has a right to say that it ought to not have been done and correct itself… The mistakes of the past should not befall on the future generations. What we did during those days, I am justifying our undoing [of it] in 2019.”

Further, offering more clarifications on this issue, he referred to Sampat Prakash versus State of Jammu & Kashmir (1968).

Mehta said that in this judgment, the petitioner was placed in preventive detention and Sampat Prakash filed an Article 32 petition.

Mehta pointed out: “The learned attorney general appearing for the government [in that case had] stated that an Article 32 petition is not maintainable because it would lie only for violation of fundamental rights and for J&K, Articles 21 and 22 are not fundamental rights.”

That was the position of Article 35(c). [It denied] Articles 21 and 22, [which] are the heart and soul of Part III of the Indian Constitution,” Mehta averred.

Another example he pointed out was Article 35A, which reserved the right to buy land and other immovable property and government jobs in J&K for ‘hereditary state subjects’ defined under a 1927 law passed by the Dogra maharaja.

According to Mehta, those similarly situated persons who do not come within the artificially created definition of “permanent residents”, were completely deprived of all fundamental rights, though they were similarly situated, and are equal residents of J&K and  also citizens of India.

He stated that the cut-off date for ‘hereditary state subjects’ was 1927.

Highlighting the consequence of Article 35A, Mehta said people from Pakistan-occupied Kashmir, driven out of the State in 1947, did not become permanent residents of J&K till 2019.

Similarly, Mehta pointed out, a large number of safai karamcharis (sanitation workers) who were living in the State for decades had not become permanent residents even though they had filed applications.

They could not take advantage of any state benefits despite having lived there for years, Mehta averred.

The CJI offered his wisdom on Article 35A and said: “Referring to the Presidential Order C.O. 48, it applies Part III [to the State]. 

Article 35A creates an exception in three areas— employment under state government, acquisition of movable property and settlement in the State.

Though Part III is made applicable through the same vein from which Article 35A was introduced, you are taking away three fundamental rights [provided under] Articles 16(1), 19(1)(e), 19(1)(f) and 31… By enacting Article 35A, you virtually took away these fundamental rights.”

When Mehta pointed out that employment is also a fundamental right under Article 21, the CJI replied that this referred to the right to employment under the state government which is a direct right under Article 16(1), was also taken away.

The CJI further said: “What Article 35A does is that it confers special rights to residents or takes away those rights from non-residents… Power of judicial review was taken away.”

Mehta added: “So, this is even beyond the Ninth Schedule [of the Indian Constitution]. This continued till 2019.”

He urged the Bench to look at this issue from the perspective of the people of J&K as the de-operationalisation of Article 370 was a “constitutional exercise of powers”.

He concluded: “Till now, the people were convinced by those who were supposed to guide them that this [Article 370] is not a hindrance to your progress. The Article is your privilege and if you fight for it, nobody can take it away. That is the most unfortunate part.”

Stating that he is not being political, Mehta remarked: “Major political parties are defending Article 370, including Article 35A. When Your Lordships asked what did you lose from the abrogation, there is no list! This is what the people rightly lost.