Chief Justice of India D.Y. Chandrachud on Thursday said the government cannot justify the “means” used to abrogate Article 370 from the Constitution and erase Jammu and Kashmir as a full-fledged State in August 2019 by simply pointing to the “ends” achieved.
“We cannot postulate a situation that ends justify the means… Means must be consistent with the ends,” Chief Justice Chandrachud said.
The Chief Justice, heading a Constitution Bench, reminded the government that while persuasion, real politick and the genius of Sardar Vallabhai Patel drew 562 princely States to the Union of India, Jammu and Kashmir “bucked the trend” and followed the route of Article 370.
The government began its response in the Article 370 case with Attorney General R. Venkataramani and Solicitor General Tushar Mehta taking turns to convince the court that the abrogation was not a “fraud on the Constitution”.
Mr. Venkataramani argued that Jammu and Kashmir had lost all traces of sovereignty the moment it signed the Instrument of Accession with the Government of India in October 1947.
“Accession is the first step towards losing one’s sovereignty,” Mr. Mehta said.
“Yes, the consequence of accession is you are united in a federation. But you [government] will still have to deal with their [petitioners] argument that sovereignty has two components — external and internal — and Jammu and Kashmir retained their internal sovereignty… The Indian Constitution did not devise a provision like Article 370 for the other princely States, who accepted the ultimate dominion power and executive and legislative authority of the Union of India,” Chief Justice Chandrachud observed.
Mr. Mehta said Jammu and Kashmir could not be considered “special” or “unique” merely because it had a Constitution in 1939 or the Instrument of Accession had mentioned certain reservations interpreted as a continuation of the State’s internal sovereignty.
“Sixty-two of the princely States had their own Constitutions, 286 across the length and breadth of the country were in the process of framing their own Constitutions… Manipur adopted a Constitution in July 1947 which provided for fundamental rights and separation of powers which recognised the Maharaja as its constitution head… The draft of the Instrument of Accession was common to all the princely States… The signing of a merger agreement between a princely State and the Indian government was not sine qua non [a necessity] to be part of the Indian Union… It is wrong to say that Article 370 was a special feature and the provision was a privilege given to Jammu and Kashmir which could never be taken away,” Mr. Mehta submitted.
The Solicitor General said the petitioners had confused internal sovereignty with autonomy. “In a federal set-up, autonomy resides in every unit, in every State or institution. But that does not mean they have internal sovereignty,” Mr. Mehta argued.
Mr. Venkataramani said the court’s review of the procedure of abrogation was limited. He said border States like Jammu and Kashmir form a “special class of territories of India and their reorganisation required special consideration”.
“The court will defer to the wisdom of the Parliament in choices of action relating to border States,” Mr. Venkataramani submitted.
For border States, he said the plenary power of the Parliament under Article 3 to form new States, alter areas, boundaries and names of existing States would be available even during President’s rule under Article 356 of the Constitution. The abrogation of Article 370 and the conversion of the State of Jammu and Kashmir was done when the erstwhile State was under President’s rule.
Mr. Mehta said the abrogation cured a “psychological duality” from the minds of the people of Jammu and Kashmir. For 75 years, they were “confused” about their part in the destiny of India. The nation’s enemies had taken advantage of this uncertainty, the Solicitor General said.
He said the Jammu and Kashmir Constitution was having a “devastating effect” on the State. “The Preamble of the Indian Constitution was made applicable to Jammu and Kashmir by way of the 1954 Constitution Order. Thereafter, the 42nd and 44th amendments to the Indian Constitution introduced the terms ‘socialist’ and ‘secular’ to the Preamble. However, that was not made applicable till August 5, 2019... So, till August 2019, the J&K Constitution was neither socialist or secular?” Mr. Mehta asked.
The Solicitor General said the Jammu and Kashmir Constituent Assembly could not be compared to the plenary Constituent Assembly which framed the Indian Constitution. He said the Jammu and Kashmir Constitution was just an “act of legislation”. The Jammu and Kashmir Constituent Assembly was in truth only a legislative assembly.
“By the time the Jammu and Kashmir Constituent Assembly was formed, the State had merged its sovereignty. Besides, there could not have been two Constitutions,” Mr. Mehta argued.
However, Chief Justice Chandrachud referred to clause two of Article 370. “When you say this was not a Constituent Assembly but only a legislative assembly, you will have to answer how your argument squares up to clause two, which specifically says that this is a Constituent Assembly formed for making a Constitution for the State,” the Chief Justice told Mr. Mehta.