Ends cannot justify means: SC to Centre on Article 370

Ends cannot justify means, the Supreme Court told the Union government on Thursday, as the Centre commenced defending the abrogation of Article 370 by referring to a choice between preserving the Constitution and losing the nation.

“We cannot postulate a situation where ends justify the means. Means also have to be consistent with the ends,” the Constitution bench, led by Chief Justice of India Dhananjaya Y Chandrachud, told attorney general R Venkataramani while hearing a challenge to the validity of the 2019 abrogation of Article 370 that granted J&K special status and an act that restructured the state into two Union territories.

The remarks came after A-G Venkataramani cited US President Abraham Lincoln, who in 1864, justified resorting to certain questionable measures, which included coercing the seceding states to stay in the Union and suspending rights of people, that were perceived contrary to the US Constitution.

“Was it possible to lose the nation, and yet preserve the Constitution? By general law life and limb must be protected; yet often a limb must be amputated to save a life; but a life is never wisely given to save a limb,” Venkataramani quoted from Lincoln’s address, as he told the bench that this is what the running theme of his submissions would be.

The A-G said that the Article 370 case delves on the importance of constitutional preserve in the context of its processes and their fairness on one hand, and losing the nation on the other hand.

His statement prompted the bench, which also comprised justices Sanjay Kishan Kaul, Sanjiv Khanna, Bhushan R Gavai and Surya Kant, to retort that the means have to be consonant with the ends.

Reading out his brief summary of submissions, Venkataramani assured the bench that the Centre would be able to show that it resorted to legitimate means, within the constitutional boundaries and the parameters laid down by the Supreme Court, in abrogating Article 370.

In arguments over 10 days, the crux of the petitioners’ arguments has been that the process by which the Centre abrogated Article 370 was flawed.

Venkataramani added that there was no factual or legal foundation to the petitioners’ challenge to the powers of President to nullify the constitutional provision. “Article 370 was meant to aid and design the integration process of J&K. Its continuous use cannot cloud or distort its original purpose…All decision taken by the Union are within the parameters of the President’s Rule and nothing has been arbitrarily designed. All arguments on fraud on the Constitution, as raised by the petitioners, are misconceived,” he said.

The A-G also pointed out that border states like J&K will require distinct consideration. “The court will defer to the wisdom of the Parliament in the choices of action in relation to the border states…No person can have a perennial interest in the state of unrest.”

Defending the invocation of the President’s Rule in J&K in December 2018 and abrogation of Article 370 during the President’s Rule, Venkataramani emphasised that the power to invoke emergency powers ensures the sustenance of the fabric of the nation and it cannot be narrowed or compressed.

“Parliament has the plenary power to act for the purposes of the reorganisation of the states and this power is equally available during the President’s Rule. Neither asymmetrical federalism nor any other federal features have been infringed. No rights in relation to representative democracy have been taken away. Reorganisation of states includes temporary or other rearrangement of rights to serve the integrity of federalism and the unity and integrity of the country. All rights are available for exercise only if unity and integrity are intact,” he said.

Following A-G’s summary of submissions, solicitor general Tushar Mehta took over, saying the top court will be delivering a historic decision in more than one way.

“This is the first time in the last 75 years when this court will be considering the privileges that J&K residents were deprived of for these many years. Article 370 worked as a detriment to the welfare schemes flowing from the Centre to the residents of J&K. This judgment will also end the psychological duality, induced or ingrained, due to continued use of Article 370.”

According to the S-G, the historical background will clearly demonstrate that so far as Article 370 is concerned, it was not a permanent privilege conferred upon any state since it had the effect of depriving the J&K residents of being treated on par with rest of their brothers and sisters in other parts of the country.

Mehta emphasised that individual sovereignty of princely states ended with their merger or accession with the Union of India and that it was the Indian Constitution and the sovereignty of the nation that were supreme.

Running the bench through an extensive list of dates, the S-G contended that the impression given to the court that J&K had a special status since the very beginning because of a separate Constitution is fundamentally wrong. “As many as 62 princely states had their own Constitution, and it was not just J&K. These documents were named as instruments of internal governance. And more than 200 states were in the process of doing so,” he said, adding the J&K Constitution that continued after 1957 was nothing more than an act of legislation because the Indian Constitution is supreme.

On the tenth day of the arguments in the case, Mehta said that promises made, or assurances given at the time of accession have no relevance after the Constitution of India came into being which is now the supreme body.

According to the S-G, the argument on “internal sovereignty” of J&K by the petitioners was a result of their confusion between sovereignty and autonomy that the Valley state had. The bench, however, told Mehta that this is a point that will require significant explanation by the Centre. The case will be heard next on August 28.

The bench is seized of a raft of petitions, filed by parliamentarians from the National Conference party, Kashmiri citizens, former bureaucrats and various organisations that have laid the challenge to the abrogation of Article 370 soon after the presidential order in August 2019.

On July 3, the Supreme Court notified the setting up of a new Constitution bench, comprising its five most senior judges, that began day-to-day hearing in the case from August 2.