The Supreme Court on Monday prima facie agreed with the Centre's submission on pleas challenging the abrogation of Article 370 that the Constitution of Jammu and Kashmir is "subordinate" to the Indian Constitution, which is on a higher pedestal.
A five-judge bench headed by Chief Justice DY Chandrachud, however, did not seem to be in agreement with the plea that the Constituent Assembly of the erstwhile state, which was disbanded in 1957, was in reality a legislative assembly.
Without naming the two mainstream political parties of the erstwhile state, the Centre said citizens have been misguided that the special provisions for Jammu and Kashmir were "not discrimination but a privilege".
"Even today two political parties are before this court defending Article 370 and 35A," the solicitor general told the top court on the 11th day of hearing the litany of pleas challenging the abrogation of the constitutional provision which bestowed special status to the erstwhile state of J-K.
Solicitor General Tushar Mehta, appearing for the Centre, said there is enough material to show that the Constitution of Jammu and Kashmir is subordinate to the Constitution of India and the constituent assembly of J-K was in reality a legislative assembly making laws.
"At one level, you may be right subject to rejoinder arguments from the other side (petitioners' side) that the Constitution of India is really a document which lies on a higher platform than that of the Constitution of J-K," the bench also comprising justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai and Surya Kant said.
It told Mehta that it would be difficult to accept the second limb of the argument that the Constituent Assembly (CA) of J-K was, in reality, a legislative assembly as proviso to Article 370 specifically mentioned that it (CA) brought certain subjects into the fold of the state upon its approval.
Mehta, said, "The Constituent Assembly of J-K was for all purposes functioning as the state legislature apart from framing a subordinate document called 'the Constitution of Jammu and Kashmir' also made legislations by passing several laws." He said the Constituent Assembly of Jammu and Kashmir, in the exercise of its limited powers, approved and adopted the Constitution of Jammu and Kashmir which was nothing but a "legislative piece" for internal governance with the overarching application of the Indian Constitution.
The solicitor general further submitted that the effect of Article 370 was such that by the administrative act of the President and the state government, any part of the Constitution of India with respect to J-K can be amended, altered or even "destroyed" and new provisions can be created.
He said that after the 42nd amendment, the words "Socialist" and "Secular" were not made applicable to Jammu and Kashmir.
"Even the word "Integrity" is not there. Fundamental duties were not there, which exists in the Indian Constitution.
"The Jammu and Kashmir Constitution provided for a separate provision for permanent residents of J-K in Article 7. It removed references to Scheduled Tribes from Article 15(4). Other Articles 19, 22, 31, 31A and 32 were applied with some modifications…," Mehta said.
He referred to another contentious provision, Article 35A, of the Indian Constitution that gave special rights to only permanent residents of the erstwhile state and said it was discriminatory, to say the least.
"Under the provision (A-35A), people like sanitation workers working in the erstwhile state for decades were not given equal rights like that of permanent residents of J-K.
"This discrimination continued till the provision was abrogated in 2019. Non-permanent residents of J-K were not able to purchase lands, could not avail scholarship, employment in the state government," he said, urging the court to look into issues from the "eyes of people".
CJI Chandrachud deciphering Mehta's submissions said that by enacting Article 35A, they took away fundamental rights of equality, liberty to practice profession in any part of the country and even granted immunity from legal challenges and the power of judicial review.
"People were misguided by those - who were supposed to guide them - that this was not a discrimination but a privilege. Even today two political parties are before this court defending Article 370 and 35A," the Solicitor General said.
Mehta submitted that the Constitution of Jammu and Kashmir needed to be repealed because it could not co-exist with the Indian constitution.
"On November 21, 2018, the legislative assembly of the state was dissolved but there was no contemporaneous challenge by any political party or any citizen or leader.
"Till, today there is no challenge to the dissolution of the assembly," he said, adding that despite there being no challenge, arguments were made by the petitioners' side that the action was "arbitrary".
Mehta added that on June 20, 2018, under Section 92 of the J-K Constitution, the Governor's rule was imposed in the state due to the failure of constitutional machinery in the state and only one petition challenged it after 14 months.
"No political party challenged the governor's rule or dissolution of the assembly. We are being called at midnight in this court for a hearing on forming governments, but here there are no challenges.
"Yet, arguments have been made that how can the governor dissolve the House. I am unable to understand the hollowness of the arguments," he submitted, adding that in J-K, Governor's rule has been imposed eight times and President's rule three times.
The hearing remained inconclusive and would continue on Tuesday.
On August 24, commencing their arguments in support of the abrogation of Article 370, the Centre had asserted there was no "constitutional fraud" in annulling the provision that accorded special status to the erstwhile state of Jammu and Kashmir.
Several petitions challenging the abrogation of the provisions of Article 370 and the Jammu and Kashmir Reorganisation Act, 2019, which split the erstwhile state into two union territories - Jammu and Kashmir, and Ladakh - were referred to a Constitution bench in 2019.
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