Supreme Court hearing on Article 370 abrogation | Day 10

Explaining the crux of the arguments of the petitioners, CJI Chandrachud says–

‘They are saying that we gave up external sovereignty, no doubt. They say that the course of events and the adoption of Article 370 would indicate that while there was a giving up of external sovereignty, internal sovereignty exercised by the then Maharaja, was not ceded to India.’

SG Mehta says – ‘....The petitioners are confusing internal sovereignty with autonomy. External sovereignty, no one can dispute lies with the Union. Internal sovereignty would mean the autonomy of federal units. This autonomy is there with every state.’

SG Mehta refers to N. Gopalaswami Ayyangar’s speech in the Constituent Assembly outlining the reason why J&K’s integration with the Union was under special circumstances.

‘The discrimination is due to the special conditions of Kashmir. That particular state is not yet ripe for the same sort of integration as has taken place in the case of other states. It is the hope of everybody here that in due course even Jammu and Kashmir will become ripe for the same sort of integration’. [Text from Ayyangar’s speech]

SG Mehta says that Article 1 in the draft constitution stipulates the phrase ‘Union of States’ which has been deliberately done.

‘...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 a federation. Thus, no state had the right to secede from it. The federation is a Union because it is indestructible’, he adds.

Paraphrasing SG Mehta’s submissions so far, CJI Chandrachud says –

‘.....to paraphrase your submissions, it can be twofold – i. The expression of reservations in IoA is not unique to the IoA acceded to by Maharaja Hari Singh of Kashmir 2. The execution of a merger agreement was not sine qua non to accepting the final sovereignty of the Union.’

CJI Chandrachud asks SG Mehta to apprise the Bench about the list of states that joined the Union of India without a merger agreement and yet became a part of the Union.

Responding to the argument raised by the petitioners that an instrument of merger is a necessary attribute for complete integration, SG Mehta points out that not just Kashmir many other princely states did not sign such instruments of merger.

Summarising SG Mehta’s arguments, CJI Chandrachud says –

‘.....the point you are making for now is that the IoA of various princely states contained reservations. We have seen in regards to taxation, and land acquisition..... not binding themselves to accepting a future constitution. 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.’.

Outlining the difference between the accession of other princely states and the accession of J&K, CJI Chandrachud says – ‘ The only difference was that this constitutional history led to the ultimate integration in every sense of the other States. They did not follow the Article 370 route. Because for J&K, the Constitution decided to go to Article 370. Other states merged completely.’

SG Mehta says that such an exercise was done to further ‘mutual interest’ in the words of Sardar Vallabhbhai Patel.

He refers to the model draft of the Instrument of Accession signed by all states.

CJI Chandrachud says – ‘....Actually, this was done to create a sense of confidence in the princely states. That you are acceding to the Union but we are giving you the ability to have reservations in your Instrument of Accession. 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 says – ‘.....See how beautifully our founding fathers dealt with that situation, unified our nation, and the ultimate result was Article 1’.

SG Mehta takes the court through the Indian Independence Act, 1947, and says that every princely state was allowed to put forward its own terms and conditions in the instruments of accession.

The Bench has reconvened. The hearing has resumed.

The bench rises for lunch. The hearing will resume at 2 pm.

SG Mehta refers to Sardar Vallabhbhai’s statement documented as an appendix to the White Paper on Indian States prepared by the Government of India in July 1948.

‘I should like to make it clear that it is not the desire of the Congress to interfere in any manner whatever with the domestic affairs of the States. They are no enemies of the Princely Order, but, on the other hand, wish them and their people under this ægies all prosperity, contentment and happiness. Nor would it be my policy to conduct the relations of the new Department with the States in any manner which savours of the domination of one over the other; if there would be any domination, it would be that of our mutual interests and welfare. We have no ulterior motive or selfish interests to serve. Our common objective should be to understand each other’s point of view and come to decisions acceptable to all and in the best interests of the country.’ [Text from the statement].

SG Mehta says – ‘.....‘Equality of Status’ was the goal while framing the Constitution. One segment of the Union cannot be deprived of the rights enjoyed by the rest of the country.’

The SG points out that States are still autonomous in their functioning with respect to List II, Schedule VII of the Constitution (State list).

‘Several provisions give them internal autonomy while being part of India’, he adds.

The SG apprises the bench that initially J&K had only four representatives including Sheikh Abdullah but however with time more princely states acceded to the Dominion of India and started actively participating in the drafting of the Constitution.

He further highlighted that all the princely states had differently worded instruments of accession but with time they became one federal unit.

The SG says that with Article 1 of the Constitution coming into existence, the only sovereign that remained was – ‘we the people of India’.

The SG says that the argument that J&K was the only princely state with its own constitution is factually incorrect.

The SG says that the draft accession agreement was the same for all the states and that this accession document was the same for all those who acceded to the Dominion of India. He pointed out that Manipur adopted a Constitution on July 26, 1947, that provided for fundamental rights and separation of powers and recognised the Maharaja as its constitutional head.

SG Mehta says –’ Substantial arguments were made that J&K had a special place in 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.’

Addressing the SG, CJI Chandrachud says – ‘You will also have to deal with the argument they (petitioners) raised that sovereignty itself has internal and external components. And internal sovereignty remained’

In response, the SG said that he would show the court how the means adopted were strictly within constitutional parameters.

SG Mehta outlines the history of the accession of J&K. He submits that the moment the accession is complete, the sovereignty gets lost as it gets subsumed with the larger sovereignty. He refers to Section 5 of the J&K Constitution.

SG says that following the abrogation, a large number of fundamental rights and other rights will now be conferred upon the residents of J&K and that they will be fully at par with the rest of their brothers and sisters in this country.

SG says – ‘....Because of this confusion on whether Article 370 was temporary or permanent, there was a psychological duality in the minds of a particular section of our country. That duality ended with this abrogation.’

SG Mehta says that this is a historical case in more ways than one as the court will be considering for the first time in 75 years how Article 370 was acting to the detriment of central government welfare schemes reaching the people of the valley.

AG contends that plenary power is available during the President’s Rule and that due process was not violated while passing the impugned Presidential Orders.

AG apprises the court that border States such as J&K are special territories and that their reorganisation requires distinct consideration. He says that the court must refer to the wisdom of the Parliament when it comes to actions pertaining to such border states.

The AG points out that Article 370 was designed to aid the constitutional integration process along the same lines as it happened with other princely states. He adds that its continued existence cannot be seen as a distortion of its original purpose.

The AG submits that on a combined reading of the Instrument of Accession (IoA) and the Proclamation followed by the adoption of Article 370, all traces of sovereignty were surrendered. He says that the constitutional integration process of the Union and J&K was the only object of Article 370.

Addressing the AG, CJI Chandrachud says– ‘....we cannot postulate a situation where the ends justify the means also, right? Means should also be consistent with the ends.’

Quoting Abraham Lincoln, the AG says that a balance needs to be maintained between losing the nation and preserving the Constitution.

‘He said that by general law, life and limb must be protected. But a limb can be amputated to save a life but a life is never given to save a limb’, the AG adds.

AG Venkataramani says that the Union has tried to bring its own understanding of this ‘emotion, passion riddled’ issue. He says that he has kept in mind the objectivity and neutrality required.

The Bench has convened. The hearing has resumed.

The Constitution Bench comprising CJI DY Chandrachud, Justice Sanjay Kishan Kaul, Justice Sanjiv Khanna, Justice BR Gavai, and Justice Surya Kant will hear arguments advanced by the Union government today. Attorney General (AG) R Venkataramani will today commence his arguments on behalf of the Union government, defending the abrogation of Article 370.

The Supreme Court on August 2 raised the question whether the President’s power to declare inoperative Article 370 of the Constitution, which granted special status to Jammu and Kashmir, will not continue to hold the field after the dissolution of the erstwhile State’s Constituent Assembly on January 26, 1957. Read more here.

Chief Justice of India D.Y. Chandrachud on Tuesday (August 8) said that as a constitutional democracy, India seeks its public opinions through established institutions like the Parliament and not through Brexit-type referendums. Read more here.

The Supreme Court on August 3 asked whether Article 370, which gave special status to Jammu and Kashmir, is being equated to the Basic Structure of the Constitution. Read more here.

The Supreme Court on Wednesday asked why the Union of India, the Legislative Assembly of Jammu and Kashmir or the political establishment in the rest of the country had never bothered to bring the Constitution of Jammu and Kashmir “expressly” within the fold of the Constitution of India. The court said the Jammu and Kashmir Constitution had, over the years, limited the executive powers of the Union of India and restricted the legislative reach of the Parliament. Read more here.

Chief Justice of India D.Y. Chandrachud, heading a Constitution Bench hearing petitions challenging the abrogation of Article 370, on Thursday said Jammu and Kashmir ceded its sovereignty to the Dominion of India “absolutely and completely”. “It was no conditional surrender of sovereignty to the Dominion of India. The surrender of sovereignty was absolutely complete,” Chief Justice Chandrachud observed orally. Read more here.

The Supreme Court on Thursday appeared unenthusiastic to accept an “invitation” to judicially review the “wisdom” behind the Union government’s decision to abrogate Article 370, which had given a special status to Jammu and Kashmir. Instead, the Constitution Bench said that its ambit lay in investigating whether the repeal of the provision in August 2019 amounted to a “constitutional violation”. Read more here.

The Supreme Court on Wednesday accepted the Centre’s assurance that it does not intend to “touch” the special constitutional provisions protecting the interests of the people of the northeastern States. Read more here.

Read the arguments so far advanced on behalf of the petitioners here.

Article 370 abrogation case | The Hindu’s detailed coverage

Ahead of the historic Article 370 abrogation verdict, here is The Hindu’s detailed coverage of the Supreme Court proceedings

As the petitioners contesting the abrogation of Article 370 concluded their arguments in the Supreme Court on Wednesday, the leaders of Jammu and Kashmir’s regional parties — the National Conference (NC) and the Peoples Democratic Party (PDP) — expressed satisfaction and optimism regarding the case.