Is Conversion Of Jammu & Kashmir As Union Territory Consistent With Federalism? Supreme Court Asks Centre [Day 11]

The Supreme Court, on the eleventh day(August 28) of the Constitution Bench proceedings in the Article 370 pleas, asked the Union Government  if the action of downgrading the State of Jammu and Kashmir as a Union Territory was really consistent with the federal doctrine. The bench was headed by Chief Justice of India Dr D.Y. Chandrachud and comprised Justices SK Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant. 

The query was raised by CJI DY Chandrachud in yesterday's hearing when the Solicitor General of India Tushar Mehta, appearing for the Union of India, argued that the widely applicable rule during a President's Rule was for the Parliament to take decisions on behalf of the State Legislature. He stated that when a State was under a President's Rule, owing to the non-existence of a State legislature, the Parliament had to take upon the role of the State Legislature as well. 

As per Article 3 of the Constitution, the views of a State legislature is necessary for the Parliament to pass an Act for reorganising that State. Regarding Jammu and Kashmir, Solicitor General pointed out that it was under President's rule and the Presidential proclamation under Article 356 had suspended the operation of Article 3 in relation to J&K.

To this, the CJI remarked– "So Parliament would then give views to itself and it would also enact the legislation for reorganization?" The Solicitor responded in an affirmative and stated that the same was an "inevitable consequence". 

To this, the CJI asked "if the same was really consistent with the federal doctrine". SG Mehta responded by submitting that this would not destroy federalism at all and that he would expand upon the same through his submissions. 

SG also stated that Article 3 used to be suspended always whenever Presidential rule was imposed and that has always been the convention right from the beginning.

To this submission, the CJI remarked–

"The constitutional practice cannot obviate the legality of what is done."

J&K Is A State For All Purposes

In his arguments, the SG submitted that J&K was still a State "for all purposes". He stated that–

"It has a legislature. Only the power of police is with the president."

He asserted that the arguments made by the petitioners to establish that the 'downgrading' of the State of J&K to a Union Territory had a negative impact on J&K were based on 'factually incorrect' assertions. He said–

"The arguments such my consolidated fund is gone, my representation of J&K in the parliament is gone, my elections- voting in parliament is gone, GST Council is gone-all factually incorrect."

He stated that specific provisions had been made for each of these factors. Further, he submitted that it was necessary for J&K to remain under the Union for some time. He contended–

"It is necessary that for some time this remains under the Union as Union Territory. The Hon'ble Home Minister in the house has said that this is a temporary measure. Ultimately, J&K will become a state. That's a separate argument."

Constituent Assembly Of J&K Was In The Nature Of A Legislative Assembly

The next limb of arguments of SG Mehta was that the J&K Constituent Assembly was in a nature of a Legislative Assembly. He argued that the terms 'Constituent Assembly' had been used interchangeably with 'Legislative Assembly' in a floating way in the context of J&K. To establish the same, he took the bench through a proclamation of 1951 issued by Yuvraj Karan Singh to create a Constituent Assembly to draft the Constitution for the State. Here, SG Mehta asserted that J&K was already a part of India under Article 1 at the time. He stated that as J&K was already bound by Indian Constitution, the Constituent Assembly could never have created another Constitution.

In this context, he added–

"The (J&K) Constituent Assembly is not a law making body in that sense. My submission is that Constitution of J&K is at par with a legislation only, it's not a kind of a Constitution as we understand, not a document of governance."

The CJI seemed to disagree with this submission and stated that–

"That would be a problem for two reasons- That's not how Article 370(2) refers to it as. It refers to it as Constituent Assembly of State. But more importantly, once Article 238 makes certain provisions of Constitution inapplicable to Part III states, especially J&K, which would be brought into force by the Constituent Assembly framing a Constitution, then it may be difficult to purely call it a legislative assembly."

The SG stated that he would address this in his arguments going further. 

Abrogation Of Article 370 Correction Of Past Wrongs

In his arguments, SG Mehta underlined the effects of Article 370 on the application of the Indian Constitution to J&K. This included him stating that various beneficial legislations, such as the Right to Education, were never applied to J&K. Here, he contended that while the Article had continuously been evolving depending upon the need of that situation such as Sadar-i-riyasat becoming the governor, the then-government had not applied beneficial legislations to the State. Flagging this as an issue, the CJI remarked–

"Mr SG, you're appearing for the Government of India. In constitutional theory, the Government of India is a perpetual entity."

SG Mehta responded to the same by stating–

"The government of India has a right to say that this ought not to have been done and correct itself. The government can correct itself, which we did. I'm justifying that correction. I am not saying that government and this government - it's our government. The mistake of past should not befall on the future. That's why, what we did in those days– I'm justifying our undoing it in 2019."

Article 370 Envisioned As A Temporary Provision

The SG relied on the speeches made in the Lok Sabha by Jawaharlal Nehru in 1963 and statements of former leaders from the state and representatives in the Parliament, namely Inder Malhotra, Vishnu Kamath, Sham Lal Saraf, Keshavrao Sonawane, DC Sharma, and Mansinh P. Patel, in 1964. He argued that Article 370 was intended to be a temporary provision.

To this, the CJI remarked–

"These are individual views. Ultimately, Mr Solicitor, these are not expressions by parliament as a collective body."

However, SG Mehta asserted that the debates showed how the members of Parliament understood Article 370.

Political Arguments By Petitioners

SG Mehta contended that there had been no pleas challenging the imposition of Presidential rule. He said–

"The petition which Mr Sibal argued - is a petition filed by two members of parliament belonging to NCP. No challenge either to the governor's rule, president's rule or dissolution of legislative assembly...I'm talking about this because half an hour of a political kind of argument was made."

Senior Advocate Kapil Sibal interjected to the same and asserted that he never made a political argument in the court. To this, the SG said–

"But if there is no challenge and you raise a plea that governor should never have dissolved, it becomes a political argument. The argument was advanced with a nuance that this was a device to bring certain parliamentary actions by suspending the provisions to the proviso to Article 3- namely, the reorganization."

Also from yesterday's hearing - Article 370 Case | Article 35A Took Away Three Fundamental Rights Of Citizens, Says Supreme Court During Hearing[Day 11] 

Article 370 Case | Article 35A Took Away Three Fundamental Rights Of Citizens, Says Supreme Court During Hearing[Day 11]