To Kapil Sibal’s claim that 5,000 people were put under house arrest during the de-operationalisation of Article 370, Solicitor General of India Tushar Mehta jokingly responded that the ‘right people’ were put under house arrest.
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TODAY, on Day 13 of the In Re Article 370 hearings, the Solicitor General of India Tushar Mehta and senior advocate Kapil Sibal engaged in a heated discussion over certain submissions made by Mehta.
On August 5, 2019, the Union home minister, Amit Shah, had informed the Parliament of the abrogation of the special status of J&K under Article 370 of the Indian Constitution and presented the Jammu and Kashmir Reorganisation Bill, 2019.
The Bill, which was passed and received presidential assent a few days later, bifurcated the state into two Union territories, J&K and Ladakh.
While presenting the Bill in the Parliament, Shah had said that the statehood of J&K would be restored at a later date when the situation in the state had improved.
On Day 12 of the hearings, the court inquired of Mehta about the status of restoration of statehood of Jammu and Kashmir (J&K).
Mehta had told the court that he would “seek instructions” on the matter.
Mehta’s submissions and Sibal’s objections
Today, Mehta made certain factual assertions about J&K which, according to him, showed a roadmap of progress of J&K towards elections.
He told the Bench that “terrorism-related instances”, “infiltration”, “stone-pelting incidents” and “security persons’ casualty” in J&K have been reduced by “45.2 percent”, “90.2 percent”, “97.2 percent” and “65.9 percent” respectively since 2018.
Mehta told the Bench that the reduction in numbers happened not only “due to effective policing” but also because the youth, who “used to be misled by secessionist forces” were “engaged in gainful employment”.
Mehta moved on to the question of restoration of statehood, stating that J&K “will have to be infused with several things before it becomes a state”.
“For the purpose of ensuring that the Union territory becomes a state again, investment from Central sector schemes is ₹28,400 crore, while the investment proposal from other schemes is ₹78,000 crore,” Mehta stated.
“Till date, the actual investment made is ₹2,153 crore,” Mehta told the court.
He also told the court that several e-initiatives have been put in place because of which transparency has improved and project numbers have increased from 9,229 in 2018 to 92,562.
“More and more people are participating in several e-tendering initiatives,” Mehta averred.
Mehta put some more data on progress made in J&K on record before stating that at this stage “he was unable to give an exact timeline for restoration of statehood”.
“Union territory status is a temporary status, but because of the peculiar circumstances that state had passed through, with repeated and consistent disturbances over the decades, it might take some time,” Mehta continued.
He also stated that 1.88 crore tourists had visited the Union territory in 2022 and 1 crore tourists have already visited in 2023.
“As Your Lordships know, tourism is the main industry in the Union territory,” he averred.
At this point Sibal intervened and asked the Bench if they were taking into account “the facts” stated by Mehta as the question was “extremely relevant” from the defendants point of view.
“As Your Lordships have clarified earlier, subsequent facts are irrelevant to the actions of August 2019 as we are dealing with a question of law,” Sibal asserted.
To this, the CJI offered a clarification, “These facts stated by the government will possibly have no bearing on the constitutional issue which has been argued.”
“Even otherwise, because we have to counter these facts,” Sibal interrupted.
“We had asked them a question on the roadmap for holding elections in J&K, that is what they have responded to,” the CJI continued with his reply.
“Our decision on the constitutional issue has to be on constitutional grounds,” the CJI clarified.
“These facts will go into the mind of the court because they are trying to show how this ‘enormous change’ has taken place for the benefit of the people of J&K,” Sibal responded.
He added: “If you have 5,000 people under house arrest and Section 144 of the Code of Criminal Procedure invoked throughout the state, there can be no bandh.”
“My request to Your Lordships is, please don’t enter this arena because we will have to counter them with all kinds of facts which are irrelevant to this case,” Sibal asserted.
The CJI again offered a clarification that the reference to “developmental work carried by the government” of India in J&K since 2019 made by Mehta would have no bearing on the constitutional matter the court was dealing with.
Mehta and the Attorney General of India R. Venkataramani agreed with the CJI’s reading of the submissions.
Sibal replied that these submissions become a part of the records of the court and hence his objection to them.
He said, “Because if you say great things are happening, then today the youth of Kashmir are caught in a drug menace that is unbelievable but I don’t want to enter into that conversation.”
“The unemployment rate is enormous,” he continued.
When Sibal wanted to know if he would be allowed to respond to the facts asserted by Mehta, Justice Kaul responded by saying that he would object to that for the same reason for which he had objected to Mehta’s submissions, that they were not relevant to the constitutional question being discussed.
Venkarataramani also chimed in and said that neither the facts stated nor their refutation would in any way affect how the constitutional question was sought to be dealt with.
Sibal said: “All this is televised. These facts come on record. They are a part of public space and people will feel what a great thing has been done by the government. This creates a problem.”
Mehta quickly answered: “Progress never creates a problem.”
Things began to calm down and Venkataramani was about to begin his arguments, when Mehta commented, “On the lighter side, I will say this, if we are saying that people were under house arrest and that is why there were no bandhs, that means the right people were under house arrest.”
“Let us not make a mockery of democracy,” a visibly upset Sibal thundered.
“Five thousand people were under house arrest. Section 144 CrPC was enforced throughout the state. This court in a judgment has recognised that. Internet was shut down [in the state,”
Sibal was referring to the landmark judgment of the Supreme Court in Anuradha Bhasin versus Union of India & Ors (2020), wherein the court observed that indefinite suspension of telecom services including internet is impermissible.
Sibal continued: “Then, they are saying there were no bandhs. How can there be bandhs when people can’t even go to hospitals?”
