Article 370 case: SG Tushar Mehta invokes Jawaharlal Nehru; says he did not accept divine right of kings during States' accession to India

The Central government Thursday began its arguments in Supreme Court defending its 2019 move to abrogate Article 370 of the Constitution which took away the special status conferred on Jammu and Kashmir [In Re: Article 370 of the Constitution]..Solicitor General (SG) Tushar Mehta, representing the Central government, invoked Pandit Jawaharlal Nehru and said that the first Prime Minister had made it clear that independent India would not accept rulers of princely States acceding to India, as having any 'divine' rights.SG Mehta submitted that the notion that Jammu and Kashmir had a special status from the beginning is a wrong one, and the draft accession agreement was same for all princely States."All these States which became part of India and signed the instrument of accession had some different wording like taxes will be with the State etc, which changed over time and became one federal unit. These states voluntarily joined in the process of Constitution-making. Just a few weeks before becoming the Vice President of the Interim Government, Jawaharlal Nehru clearly stated that no princely state could prevail militarily against the army of independent India. Nehru, in his capacity as the Vice President of the Interim Government, which included both present day India and Pakistan, clearly said that independent India would not accept the divine right of kings," SG Mehta argued..Today was the tenth day of the hearing in the petitions challenging the Central government's move in August 2019 that resulted in the revocation of the special status of Jammu and Kashmir (J&K). The erstwhile State was bifurcated into two Union Territories.The matter is being heard by a Constitution Bench of Chief Justice of India (CJI) DY Chandrachud and Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai and Surya Kant.Attorney General R Venkataramani in his opening arguments said that the Central government by its move had wanted to ensure that the Constitution is preserved by ensuring due process on one hand and without losing the nation on the other."It is often the case that a limb is amputated to save a life but life is not given to save a limb. We wanted to ensure that the constitution is preserved with regard to processes and due process and losing nation on the other hand. No deviation has taken place with regard to this Presidential proclamation. To say that a fraud has been committed on the Constitution is incorrect" he said.The CJI then said, "We cannot postulate a scenario where the ends justify the means; the means have to be consistent with the ends.".SG Mehta argued that there had earlier been a 'psychological duality' prevailing in the region that ended with the abrogation of Article 370, and resulted in a large number of people getting fundamental rights. "They will be at par with other brothers and sisters of the country. Because of the ongoing confusion whether Article 370 is temporary or not, there was psychological duality in the minds of residents of jammu and kashmir and this was taken away from the interests not inimical to India."He underscored with the signing of the treaty of accession to India, the sovereignty of the erstwhile State of Jammu and Kashmir was lost and was subsumed by the bigger sovereign (Union of India)..The SG stated that every princely State had been allowed to put their own terms and conditions in the instruments of accession with Article 1. The CJI then said that the same was to give 'a sense of confidence' to the princely States so that they could keep some subjects to themselves or adopt the one with a federal legislature. "The intention was to have the States accede to India," the CJI opined.The SG said that a provision meant to be temporary had continued to operate for over 75 years."Jinnah had called Pandit Nehru to Pakistan to discuss the Kashmir Problem. Lord Mountbatten, Nehru and Sardar Vallabhai Patel were called to Birla house to meet Gandhiji as Sardar Patel was against going to meet the aggressor and Lord Mountbatten was inclined. Later it was revealed that since Nehru was running high fever, he cannot go and thus only Mountbatten was to go." Senior Advocate Kapil Sibal (for the petitioners), then quipped, "Sometimes running a high fever is also an act of diplomacy". "Of course it was in this case," the SG replied.The CJI then said,"For J&K, the Constitution decided to go for Article 370, but for other States there was no such provision and they merged. They accepted all the lists and acceded to the union completely."The SG then stressed that Article 370 was not a kind of privilege that could not have been taken away. The CJI then pointed out,"They [princely States] joined by their own volition, but J&K ducked that rule and acceded by Article 370. So, you are saying the instruments of accession of various princely States have various such reservations and conditions and consistent with section 6 of the Government of India Act and adopted by Section 9 of the Indian Independence Act?"The CJI added that the bench would need to look at records to see how many States had not signed merger agreements, before holding that such documents were not 'quintessential' to any 'acceptance of final sovereignty of India'..The hearing will resume on August 28, Monday..Read our coverage of Day 1 of the hearing here and here.Read our coverage of Day 2 of the hearing here and here.Read our coverage of Day 3 of the hearing here and here.Read our coverage of Day 4 of the hearing here and here.Read our coverage of Day 5 of the hearing here and here.Read our coverage of Day 6 of the hearing here and here.Read our coverage of Day 7 of the hearing here and here.Read our coverage of Day 8 of the hearing here and here.Read our coverage of Day 9 of the hearing here and here.[Follow our live-coverage of today's hearing]