[Article 370 Abrogation] "No state had any right to secede from India, Union is indestructible": SG Tushar Mehta to SC

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On August 23, the petitioners concluded arguments in the challenge to the abrogation of Article 370. The petitioners have challenged the two Presidential Orders and the Jammu and Kashmir Reorganisation Act 2019


The Solicitor General of India, Mr. Tushar Mehta (SG) argued for the Union of India today, in the petitions challenging the abrogation of Article 370 and highlighted the need for it so as to enable people of Jammu and Kashmir (J&K) to enjoy rights and privileges like other Indian citizens. He added that the welfare schemes of the centre should have applicability to the people of J&K, for which the abrogation was felt to be necessary.

"One segment of the Union cannot be deprived of the rights enjoyed by the rest of country as equality of status was the goal while framing the Constitution," Mr. Mehta said.

On the issue of petitioners claming that the internal sovereignty exercised by the then Maharaja, not being ceded to the Union, the senior law officer pointed out that there was no doubt that the State's sovereignty had ceded to the Union, even though a merger agreement was not signed.

"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," the SG said.

He further stated that many other princely states, other than Kashmir, did not sign a merger instrument, but that did not mean that it was a necessary attribute for complete integration.

The SG then went on to quote Constituent Assembly debates, pointing out that the a Union is indestructible and that, the intention of the constitution makers when they used the word "Union of States" under Article 1 was a deliberate exercise, instead of using the words "Federation of States"

"No state had any right to secede from the Union of India. The Federation is a union because it is indestructible," he pointed out.

It was at this juncture, that the CJI pointed out that it was J&K which followed the route of Article 370, while other princely states merged completely.

SG Mehta argued, "See how beautifully our founding fathers dealt with that situation, unified our nation, and the ultimate result was Article 1," highlighting that the ultimate motive and result of the exercise was unification.

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.

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