Supreme Court Hears Challenge to the Abrogation of Article 370 | Day 12

Transcript: 

Hello and welcome to SCO’s Daily! Today we’ll be breaking down Day 12 of arguments in the challenge to the abrogation of Article 370. On Day 12, Solicitor General Tushar Mehta completed arguments in favour of the abrogation.

Mehta began his arguments by responding to the petitioner’s argument that the abrogation of Article 370 broke a constitutional promise made to the people of Kashmir. He argued that the provision put the people of J&K on a different footing than the rest of the country and that the President had the power to remove such a provision. Chief Justice D.Y. Chandrachud however pointed out that the issue with regard to Article 370 was that the Union used Article 367—an interpretation clause to alter the meaning of “constituent assembly” to mean “legislative assembly” and in turn used this to abrogate Article 370. Standing firm, Mehta responded that the President had the power to use the 367 route because, after 1957, the Constituent Assembly of J&K dissolved. If it was accepted that Article 370 could not be abrogated at all, then it would mean that Article 370 was a permanent provision, which it was not.

Mehta then argued that by not choosing to abrogate Article 370 when it dissolved, the Constituent Assembly left “absolute discretion” to the President. He said that the requirement under Article 370(3) to get the recommendation of the Constituent Assembly, was only just a recommendation—the President was never “bound” by it. The Union could have abrogated the provision without the limitations of the provision. Instead, “considering the strategic nature of the state” the Union wanted to “democratise” the process of repealing the provision and chose to introduce it in both houses of Parliament. Justice B.R. Gavai brought Mehta’s attention to the language of the proviso to Article 370(3) which suggests that the recommendation is mandatory for abrogation. Mehta stated that the purpose of adding “recommendation” was to give an option to the Constituent Assembly during its time to make recommendations, and did not apply after the body dissolved. He argued that the President’s power could not be dependent on the decisions made by a different body. CJI Chandrachud stated that Mehta’s submission “may not be correct”, with Justice Sanjiv Khanna adding that the Constitution is a supreme document which places restrictions on the judiciary, executive and the legislature.The Chief stated the use of the word ‘shall’ is a “clear indication that…there has to be a recommendation”. Mehta requested that the Court interpret it to mean that the recommendation may be needed, but it would still not bind the President.

Mehta reiterated his arguments from Day 11 on how the Constituent Assembly was merely the name of a body that was effectively functioning as a law-making body. The J&K Constitution, Mehta stated, had none of the attributes of a Constitution, and was simply a “piece of law” which was “known” as a Constitution till the abrogation. He said that the Preamble of the J&K Constitution does not say that the Constitution is being created for the governance of J&K, but instead says that the constitution is to “further define the existing relationship of the State with the Union of India as an integral part thereof.” CJI Chandrachud added that provisions of the J&K Constitution made it “obvious” that the J&K Constitution was “meant to be subservient to India.”

Mehta asserted that Article 370 was always meant to be a “temporary” provision for many reasons. Firstly, the constitution framers inserted the provision under Part XXI of the Constitution which consisted of “Temporary, Transitional and Special Provisions”. Secondly, the powers accorded to the President as well as the State Government under Article 370 were expansive and extremely wide”. Therefore, bearing in mind the expansive powers, the framers would surely, never have contemplated this provision to “remain forever.” Next, the Article 370 “deprived” the people of J&K and Ladakh of being treated at par with the citizens in the rest of the country, which is a “suggestive indication” that that the framers never wanted the provision to be permanent. Moreover, Article 370 was the only provision which had a “self-destructive” provision under 370(3).

Lastly, Mehta argued that J&K was a “one of its kind state” because of its “strategic location, border state, history of terrorism, history of infiltrations, history of influence from outside forces.” He argued that the reorganisation of states was done with a “blueprint” of what the Union would do post-reorganisation. This plan included issues such as gainful employment of the youth in the mainstream, schemes for the protection of border residents from shelling, and “starting” of a democratic local self government.

This was a breakdown of Day 12 of argument in the Article 370 case. Make sure to visit scobserver.in to read the full report of the day and much more on the activities of the Supreme Court. Thank you for watching!