A separate category of permanent residents was created in J&K :::: Solicitor General Mehta said, Under Prez Rule, Parliament can work as state legislatures

Day 11, Hearing in Supreme Court on Article 370 : 

A candid sounding Solicitor General Tushar Mehta said, "The mistake of past should not befall on the future. That's why, what we did in those days, I'm justifying our undoing (abrogation of Article 370) it in 2019."

 

SG Tushar Mehta: This 370(1) route and 367 mechanism has been used more than once. Because 370 permits it. It stopped only after 5 August, 2019. Otherwise, any provision, any Article (could be removed). It was placed at a very high pedestal, even above basic structure.

Solicitor General Tushar Mehta says, "Whenever there is President's Rule.. the Parliament exercise the role of legislature in all states. I have shown till dates all the acts passed by parliament acting as a state legislature during the President's Rule and there are 248 such laws".  

A separate category of permanent residents was created and any law which provides for this kind of special privileges would not be hit either by Article 14 or Article 19 or any part of Constitution. 

During the hearing on petitions challenging the abrogation of Article 370, the matter was raised to remove Article 35A. CJI Chandrachud on Monday (Aug 28) noted that the "Article 35(A) took away three fundamental rights’. 

“Employment under State govt is specifically provided under Art 16(1)..so while on the one hand Art 16(1) was preserved, 35A directly took away that fundamental right and granted immunity to any challenge on the ground that it would deprive you of a fundamental right under 16", the CJI told Solicitor General Tushar Mehta. 

CJI Chandrachud also said, "Likewise, Art 19 - it recognises the right to reside and settle in any part of the country...so all three fundamental rights were essentially take away by 35A. The power of judicial review was taken away."

Agreeing with him, Solicitor General said, "This happened till 2019. I'm urging your lords to look at the matter from the perspective of people of J&K. Something which is impugned here is a constitutional exercise of power which confers fundamental rights, applies the entire constitution, brings J&K people at par." 

Mehta also said, "It applies all laws which are welfare legislations to J&K which weren't applied earlier. I have the list with me. Till now, people were convinced by those who guide them that this isn't a hindrance in your progress, it's a privilege you fight for."  

Mehta also submitted: "Your lordships have at least two major political parties defending 370, including 35A! 

h further said, "Now the people have realised what they had lost. Now, because of 35A, investments are coming. Now because the policing is with centre, tourism has started. J&K traditionally didn't have much of big industries. They were cottage industries. Source of income was tourism.

"Now, 16 lakh tourists have come. New hotels are coming up which gives employment to a large number of people - from tangawala to officials!"

At one point Attorney General R Venkataramani said, "Art 35A is not a modification of Art 35. It's a creation of a new article." 

SG Mehta further stated: "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."

Mr Mehta also pointed out the obvious:

"Till 2019, the Hon'ble judges of J&K High Court used to subscribe to this oath- "true allegiance to the constitution of the State". They were under an obligation to apply constitution of India. 

But the oath they took was expressing their allegiance to J&K...

Mehta also referred to the Constituent Assembly debates to establish that parliament saw Art 370 as a "temporary provision".

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

Sibal said, "During these debates, Nehru intervened and said that if you talk about letting outsiders buy land in J&K, I'm totally opposed to it because businesses will come and destroy the entire state. He was very adamant".

Mehta retorted: "That is a wrong point. I'm not being political but from a citizen's point of view, unless investment comes, you never develop."