[Article 370] Unfortunate that People of J&K misguided by those who were supposed to guide them on the right path: SG Tushar Mehta

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A Constitution bench is hearing the case where the petitioners have challenged the two Presidential Orders and the Jammu and Kashmir Reorganisation Act 2019. Today, it was day 11 of the hearing.

The Solicitor General of India, Tushar Mehta argued that the abrogation of Article 370 in 2019 did not deprive people of the erstwhile state of Jammu and Kashmir (J&K) of any rights. In fact, the reading down of the provision turned out to be more beneficial for them.

"But Solicitor," the bench said, "their case is that they have lost out. How would you justify that?"

SG pointed out that it was only after 2019, with better employment opportunities, booming tourism, investment in the state and better policing, that the people of J&K realised what exactly they have really lost. He said that a with the abrogation in 2019 by the centre, a historical blunder had been rectified.

"It is so unfortunate that persons who were meant to be guiding the people of J&K in the right direction, always told them, 'you fight, no one can take Article 370 from you'. This applies even to those people who have been defending the Article to stay, including two major political parties before the Supreme Court, challenging its abrogation," the SG said.

The senior law officer pointed out further, "I urge my lords to look at this matter, from the point of view of people of J&K. Something which is impugned before your lordships is a constitutional exercise of power which confers fundamental rights, applies the entire constitution and brings J&K at par with the rest of the brothers and sisters, applies all welfare schemes upon them... and my lords, I have list which was not applicable to them before 2019".

When the SG was arguing on this point, CJI DY Chandrachud had also pointed that the insertion of Article 35A had led to restrictions on citizens of India.

These included the Right to employment, which is a fundamental right under Article 16(1), Right to acquire property under Article 19(1) and 31, Right to settlement under Article 19(1)(c). "Through the insertion of this Article, fundamental rights were virtually taken away," he said.

Arguments on the issue, inter alia also centred around integration of the judiciary with India. The SG said that earlier, the judges would take oath on the state's constitution, even the Chief justices. 

On the issue of arguments advanced so far as the abrogation of Article 370 being a fraud upon the Constitution is concerned, the SG emphasised that it was an incorrect and far fetched one. "Suspension of proviso to Article 3 not unusual and therefore, to elevate the argument to the extent that it was a constitutional fraud is indeed far-fetched," the SG said, adding that it has been done in many other states. "In the erstwhile state of Punjab, the legislative assembly was dissolved and the reorganisation bill was passed," he added. 

Court is expected to take up the hearing tomorrow.

On August 5th, Article 370 of the Constitution was abrogated by the Central Government vide a Presidential Order which revoked the "special status" of Jammu & Kashmir. 

The President issued The Constitution (Application to Jammu And Kashmir) Order, 2019 CO 272 replacing the words ‘Constituent Assembly’ from Article 370(3) with ‘Legislative Assembly [of Jammu & Kashmir]’. A Statutory Resolution was introduced by Amit Shah in the Rajya Sabha which abrogated Article 370 as the state of under president's rule. Finally, on the next day, the Parliament passed the Jammu and Kashmir Reorganisation Bill, 2019  bifurcating the State into two Union Territories -Jammu & Kashmir and Ladakh. 

A saga of petitions were filed challenging this move by the Centre, after which it was first taken up on August 28, 2019 by a bench led by former CJI Ranjan Gogoi, who referred the case to a five-judge bench. A five judge bench led by former CJI NV Ramana referred it to a Constitution bench on October 1, 2019. 

The court is hearing the case vide a Constitution bench of CJI DY Chandrachud, Justices SK Kaul, Sanjib Khanna, BR Gavai and Surya Kant since July 11, 2023.

Get the latest news from the Supreme Court hearing on Article 370 abrogation | Day 1 | Day 2 | Day 3 | Day 4 | Day 5Day 6 | Day 7 | Day 8 | Day 9 | Day 10

Case Title: IN Re: ARTICLE 370 OF THE CONSTITUTION (This is not a suo motu case by the Supreme Court of India)