Article 370 ::::: Nehru's diplomatic FEVER figures in hearing, ::::: "....a limb can be amputated to save a life but a life is never given to save a limb", says Attorney General

Solicitor General Tushar Mehta said, "......everything started getting subsumed. Article 1 came and when first schedule came, only sovereign that remained was 'we the people of India'."   

"The basic argument that J&K was the only princely state with its own constitution is factually incorrect."

"...psychological duality in the mind of a particular section ended with this abrogation," Solicitor General Tushar Mehta said.

R Venkataramani, Attorney General  initiated the government argument on Aug 24, 2023

"Abraham Lincoln talked about balancing - losing the nation and preserving the constitution. He said that by general law, life and limb must be protected. 

But a limb can be amputated to save a life but a life is never given to save a limb." -- says R Venkataramani, Attorney General during hearing in front of the Supreme Court bench on Article 370.

"We have tried to bring our own understanding of this emotion, passion riddled issue. We have kept in mind the objectivity and neutrality required," he said.

The government's argument in favour of abrogation Article 370 begins today after the submissions made by petitioners' counsels and counsels for intervenors for nine days.   

Attorney General 

CJI D Y Chandrachud said, "Mr AG, we cannot postulate a situation where the ends justify the means also, right? Means should also be consistent with the ends."

Attorney General maintained, "The Constitutional integration process of the Union and J&K was the only object of the Article 370."

The Article 370 was designed to aid the constitutional integration process on the same line as it happened with other states. "Its continued exercise over a period cannot be seen as a distortion of its original purpose".

He said, the Border states are a special territory of India and their reorganization requires distinct consideration. The court would refer to the wisdom of parliament in the choices of actions relating to States.

"The plenary power is also available when Rule under Article 356 is undergoing."

The AG said, "No deviation from due process took place while passing the Presidential Order".

After him Solicitor General Tushar Mehta commenced his arguments and stated that, "As the petitioners said your lordships will be making historical decision in more than one ways.

" This is the first time after 75 years that your lordships would be considering the privileges that the citizens of J&K had been deprived of till then.:"

SG said, "Because of this confusion on whether the Art 370 was temporary or permanent, there was a psychological duality in the mind of a particular section of our country. That duality ended with this abrogation."

Solicitor General Tushar Mehta further said, "After going through the facts, it will be clear that a large number of fundamental rights and other rights will now be conferred upon the residents of J&K and they would be fully at par with the rest of their brothers and sisters of this country."

CJI said, "You will also have to deal with the argument they (petitioners) raised that sovereignty itself has internal and external components. And internal sovereignty remained."

Mehta responded saying, "We are conscious of that. We will also show that means adopted were strictly within constitutional parameters." 

Mehta lucidly continued his argument stating, "Substantial arguments were made that J&K had a special place in the geographical British India because that was the only part which had a constitution in 1939. That is factually incorrect. There were 62 states which had their own Constitutions.

"The argument that J&K had a special status since the beginning which continued till date is factually wrong. 

The foundation is wrong. 286 states were in the process of framing their Constitution of this period of late 1930s. Eminent counsels of the day were engaged to help the princely states to draw their constitutions>"

He also stated that Alladi Krishnaswamy Iyer was involved in making the constitution of a region in Madhya Pradesh, Rewa. "However, his fee was found too exorbitant and thus, he dropped the drafting".

SG then said, "As a matter of fact, some of them made their Constitutions and thereafter signed the accession also. The draft accession document was common to all. Everyone signed that."

He also made a special mention on Manipur and said, "Manipur adopted a Constitution which on 26th July, 1947  provided for fundamental rights and separation of powers and recognised the Maharaja as its constitutional head".

"Maharaja of Patna declared the setting up of a representative constitution making body on 24th Oct 1947," he also said adding, "They (princely states) were all making their Constitutions. Why these three subjects are kept by J&K also- defence, communication, foreign affairs. There is a small princely state. It cannot have its own army. British laid postal services & railways so communication was crucial".

Then he asserted trying to leave no ambiguity, "Foreign affairs, obviously they would want the greater power to control. Ultimately, everything started getting subsumed. Article 1 came and when first schedule came, only sovereign that remained was 'we the people of India'."

SG Mehta: The system of accession of Indian States, that is the section 6 of the Order of 1947- this was, in my reading, an attempt to ensure that unification becomes as difficult as possible because everyone was permitted to put their own terms and conditions. 

"See how beautifully our founding fathers dealt with that situation, unified our nation, and the ultimate result was Article 1."

CJI Chandrachud: Actually this was done to create a sense of confidence in the princely states. That you're acceding to the union but we are giving you the ability to have reservations in your Instrument of Accession...

We must also put ourselves at that time- the Union of India wanted these princely states to come within its fold. So we gave them assurance that you can decide today that you will only give certain subjects to the Union.  

SG Mehta: That can be a better way of reading it. That is why Sardar Patel said that basic theme was mutual interest. Mr Mehta refers to the model draft of the Instrument of Accession signed by all states.

CJI Chandrachud: So this letter (written by the Maharaja) is taken by Mr Menon to Sardar Patel. And the Maharaja said that he had instructed that if Menon comes back well and good, otherwise he said shoot me when I'm asleep."

"Yes, he said if Menon comes don't wake me up but if he doesn't come, shoot me," responded Tushar Mehta adding, "So long as there is a life in me, I'll defend my people, he said."
Then the accession was concluded. Now see what happened after."

Solicitor General: Mehta 

·

The Solicitor General recalled some key chapters of history,

"The moment Jinnah heard that India accepted J&K' accession...Jinnah invited Nehru to Lahore to discuss the problem. See the diplomacy - Mountbatten was eager to accept the invitation and Nehru was inclined to agree with Mountbatten."

However, Mehta also hastened to add, "But Sardar Patel was strongly opposed to the proposition...on the ground that Pakistan was the aggressor and India ought not to follow the policy of appeasing the aggressor.

·

Then he went on referring to another well known historical episode, "Nehru was running a high fever. It was decided that Mountbatten should go alone. VP Menon writes this.

Bench remarks: "The High fever also seems to be an act of diplomacy."

Mehta, Solicitor General, then says, "It was a diplomatic illness and was necessary at the time".

Blogger 

·

Mr Mehta continues taking the bench through the history of accession and the formation of the Union of India  and also stated, "every state had put their own conditions".

"Till the princely states remained, even after Independence, they were called the 'Rajpramukhs'."

On this CJI remarked: "Until 1956 amendment when the Rajpramukhs were abolished".

SG Mehta, referring to the model IoA: "Nothing in this instrument shall be deemed to commit the united states in any way to acceptance of any future constitution of India"- this is not in J&K.

CJI: The only difference was that this constitutional history led to the ultimate integration in every sense of the other States. They didn't follow the 370 route. Because for J&K, the Constitution decided to go to 370. Other states merged completely.

Tushar Mehta continues with his submission:

"I am showing this to establish that a stand which has been taken that we had a special feature and therefore we were given special treatment and this provision was a privilege given to us which can't be taken away- I'm showing that there were many princely states..." 

SG says, All princely states subsumed themselves with the Union of India because of the Act of State doctrine and because of Article 363 and Article 1. 

CJI Chandrachud: "They came into Indian union as a volition. They joined voluntarily. .... That was probably the genius of Sardar Patel, there is no doubt about it. But the fact remains that insofar as J&K is concerned, J&K went to the 370 route". 

SG: But why, how, and till what time will come subsequently.