“Let's face it, whether it's a state or Union Territory, all of us survive if a nation survives, CJI Chandrachud ::::: Art 370 had a 'self-destructive clause', says SG Tushar Mehta

“Let's face it, whether it's a state or Union Territory, all of us survive if a nation survives. If the nation itself does not survive, there is no question or relevance of state or UT,” remarked CJI Chandrachud. 

*** Union Territory UT is not a permanent feature for J&K. But, I will make a positive statement the day after tomorrow (Aug 31, regarding Jammu and Kashmir),” said Solicitor General Tushar Mehta

 

**(During hearing, Solicitor General Tushar Mehta categorically highlighted why Article 370 is different from others. 

“Article 370(3) has an in-built extinguishing provision. That’s the distinction. 

This is the only provision that has a self-destructive clause. 

This shows it was intended to be temporary.”)

The Supreme Court on Tuesday, Aug 29, asked the Govt of India if there is a time frame and a roadmap for restoring statehood to Jammu and Kashmir, which was reorganised into two Union Territories after the abrogation of Article 370 in 2019.

"We understand that these are matters of national security…the preservation of the nation itself if the overriding concern. But without putting you in a bind, you and attorney-general may seek instructions on the highest level—is there a timeframe in view?…Is there a roadmap?,” Chief Justice of India D Y Chandrachud said presiding over a five-judge Constitution bench hearing petitions on the Article 370.

He specifically directed his question to Solicitor-General Tushar Mehta, who appeared for the Centre and strongly favoured the Jammu and Kashmir reorganistion of the administration.

The query came as Mehta touched on the reorganisation of states and told the bench, also comprising Justices S K Kaul, Sanjeev Khanna, B R Gavai and Surya Kant, about decisions taken with regard to Jammu and Kashmir in the aftermath of the Article 370 changes.

The CJI then said, “As we see creation of UTs, you have on one hand, examples like Chandigarh, carved out of Punjab and remained a UT. Then you have a progression where certain areas become UTs…You can’t immediately make them states.”

He went on to ask if Parliament should not be permitted to convert a state into a Union Territory for a certain period, in view of national security needs. 

“Why was it not possible for the Union to say that right now in the case of a state, we have such an extreme situation in terms of national security, that we want for a certain period that a UT should be created. But this is not permanent and this shall be back as a state…Can a Union not do that for a certain period, to bring stability? Because let’s face it, whether it’s a state or UT, all of us survive if a nation survives,” he said.

“Should we not permit Parliament to postulate that for a certain period, in interest of the preservation of the nation itself, we want for a certain period that this particular state shall go in fold of UT—on the clear understanding that this shall revert back to a state,” the CJI said.

"The government also has to make a statement before us that that progression has to take place. It can’t be a Union Territory permanently”.  Mehta explained that “that’s exactly the statement made on the floor of the parliament (by the home minister)”.

The CJI said “we take your point that progression has already begun”.  

SG : Tushar Mehta 

‘Any change in the Constitution that brings everyone at par can never be faulted with’: SG Tushar Mehta during Article 370 hearing

SG Mehta said, "In this case (Raghunathrao Ganpatrao v. Union Of India), the court said that any change in the Constitution which brings everyone at par can never be faulted with. Princely states, after the formation of the Constitution, lost their special privilege, and the word 'fraternity' had to be given meaning.” 

"If any provision which keeps out of the total composition of our Constitution as an appendage, as a transitory provision, to be removed at an appropriate stage- if it is removed, it furthers basic structure & enhances equality and fraternity, which is bedrock of Constitution." - the SG stated. 

"Here, only in one provision, that is Art 370, which can amend any part of the Constitution - explanation 367 mechanism is used. This is a drastic nature of this provision. 370(1) permits two organs- President, State govt to change anything in Constitution..... To ensure that this never happens again, 367 was used."

Solicitor General Mehta apprised the Constitution Bench that for the first time in the history of J&K, local government elections took place in 2020 where around 34,000 people were elected, adding that no “hartal (strikes), stone pelting or curfew” had been there in the valley post revocation of Article 370.