24-08-2023 : In a detailed presentation before the Supreme Court, the highest legal authorities of the Indian government asserted that the revocation of Article 370, which granted special status to the former state of Jammu and Kashmir, was devoid of any “constitutional fraud.” The Attorney General, Venkataramani, emphasized that this move was a crucial and necessary action. The proceedings took place before a five-judge constitution bench led by Chief Justice D Y Chandrachud, who stressed the importance of justifying the procedural aspects of the abrogation, highlighting that the court cannot accept a situation where the method employed trumps the intended outcome.
The petitioners who opposed the annulment of Article 370 argued that it couldn’t have been revoked because the Jammu and Kashmir Constituent Assembly, whose agreement was a prerequisite for such a step, had concluded its term back in 1957 after crafting the state’s Constitution. According to their stance, Article 370 had acquired permanent status after the constituent assembly ceased to exist.
Addressing this issue, Chief Justice Chandrachud observed that the means adopted must be in harmony with the desired ends. The Attorney General, R Venkataramani, countered the allegations of constitutional fraud and affirmed that the abrogation had adhered to the due process, with no wrongdoing involved. He characterized the opponents’ arguments as flawed and untenable. Solicitor General Tushar Mehta, who also represented the government, was instructed by the Chief Justice to elucidate how the term “constituent assembly” in clause 2 of Article 370 was replaced with “legislative assembly” on August 5, 2019, the day Article 370 was revoked.
Venkataramani explained that the abrogation was conducted without constitutional fraud, emphasizing the adherence to due process and dismissing claims of wrongdoing. The Attorney General further emphasized that the step was necessary and the opposing arguments lacked merit.
The Chief Justice directed Solicitor General Mehta to provide insight into the alteration of the term “constituent assembly” and its substitution with “legislative assembly” in Article 370. Mehta expressed his intention to satisfy the court’s concerns by clarifying the adopted procedure and its constitutionality.
The relevant part of Article 370, prior to its amendment in 2019, stipulated that the President could declare the article inoperative or operative with exceptions and modifications, provided that the recommendation of the Constituent Assembly was obtained. The newly added Article 367(4)(d) on August 5, 2019, replaced “Constituent Assembly of the State” with “Legislative Assembly of the State.”
Mehta underscored how Article 370 functioned until 2019, revealing instances where it had a substantial impact. He cited the application of the Indian Constitution’s preamble to Jammu and Kashmir in 1954 and highlighted that even though the terms “socialist” and “secular” were added to the Indian Constitution through the 42nd amendment in 1976, they were not extended to Jammu and Kashmir until August 5, 2019. Mehta aimed to demonstrate the potential adverse consequences of Article 370 if it had not been revoked.
The Chief Justice inquired about a list of princely states among the 562 that merged with India without signing a merger agreement, along with the relevant documents held by the Department of State under the Ministry of Home Affairs.
Mehta countered the assertion that Article 370 granted an irrevocable privilege to Jammu and Kashmir, presenting cases where similarly situated princely states eventually integrated with India. The bench concurred with Mehta’s view, noting that the difference was that Jammu and Kashmir took the Article 370 route, whereas other states followed a different path.
The hearing was adjourned with no conclusion reached and is set to resume on August 28. Numerous petitions challenging the revocation of Article 370 and the Jammu and Kashmir Reorganisation Act, 2019, which led to the division of the former state into two union territories, were referred to a Constitution bench in 2019.