The Supreme Court on Thursday said that the Centre could not justify the means used to abrogate Article 370 of the Constitution merely by pointing to the ends achieved through the legal changes, The Hindu reported.
A five-judge bench headed by Chief Justice DY Chandrachud is hearing over 20 petitions challenging the Central government’s decisions to revoke Jammu and Kashmir’s special status and split the erstwhile state into two Union Territories in 2019.
The court’s remark came after Attorney General R Venkataramani cited a statement by former United States President Abraham Lincoln that sought to justify using measures perceived as contrary to the country’s Constitution in certain situations.
“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,” the attorney general quoted Lincoln as saying.
In response, Chief Justice Chandrachud said: “We cannot postulate a situation that ends justify the means… Means must be consistent with the ends.”
Venkatramani said that there was no “constitutional fraud” committed in abrogating Article 370 of the Constitution, as the petitioners have alleged. He said that Jammu and Kashmir lost all traces of sovereignty as soon as it signed the Instrument of Accession with India in October 1947.
However, Chandrachud noted that the Constitution did not make provisions similar to Article 370 for other princely states that acceded to India.
“Yes, the consequence of accession is you are united in a federation,” the chief justice said, according to The Hindu. “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.”
Solicitor General Tushar Mehta contended that the petitioners have confused internal sovereignty with autonomy. “In a federal set-up, autonomy resides in every unit, in every state or institution,” he said. “But that does not mean they have internal sovereignty.”
Mehta said it was wrong to argue that Article 370 was a special feature and a privilege given to Jammu and Kashmir that could never be taken away.
Chief Justice Chandrachud, however, told the solicitor general that he would have to explain how the words “Constituent Assembly” in Clause 2 of Article 370 was replaced with the words “Legislative Assembly” on August 5, 2019 – the day Article 370 was abrogated.
Prior to the constitutional changes pertaining to Jammu and Kashmir, Article 370 (3) stated: “...The President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify: Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.”
On August 5, 2019, the newly-inserted Article 367(4)(d) amended Article 370(3) by replacing “Constituent Assembly” with “Legislative Assembly”.
On August 5, 2019, the president issued a Constitution Order replacing the earlier text of Article 370 with a provision that stated that all provisions of the Constitution would apply to Jammu and Kashmir without modifications of exceptions.