25 Aug 2023 2:30 AM GMT
On the tenth day of the Supreme Court hearings in the Article 370 matter, the Central Government commenced its arguments supporting the Presidential Orders of 2019 which diluted Article 370 of the Indian Constitution. The arguments were opened by Attorney General (AG) R Venkataramani before a bench comprising CJI DY Chandrachud, Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant. At the very outset, the CJI posed an interesting query to the Union and asked if the ends could justify the means. He orally remarked that, "means should also be consistent with the ends".
Limb Can be Amputated To Save A Life But Life Is Never Given To Save A Limb: AG Opens His Arguments
The Attorney General's opening statements emphasized the government's approach of combining understanding, objectivity, and neutrality while addressing this issue. "We have tried to bring our own understanding of this emotion, passion-riddled issue. We have kept in mind the objectivity and neutrality required," remarked the AG as he put his arguments before the bench. He went on to invoke the words of Abraham Lincoln to illustrate his point.
"Abraham Lincoln talked about balancing - losing the nation and preserving the constitution. He said that by general law, life and limb must be protected. But a limb can be amputated to save a life, whereas a life is never given to save a limb," the AG stated.
However, addressing the AG's submission, the CJI questioned the principle of ends justifying means. "Mr. AG, we cannot postulate a situation where the ends justify the means also, right? Means should also be consistent with the ends," the Chief Justice emphasized, underlining the importance of lawful approaches in achieving desired outcomes.
Both the AG and later, the Solicitor General (SG) underscored their stance that the methods and procedures employed in the abrogation of Article 370 were conducted within the boundaries of the constitution. "No deviation has taken place with regard to this Presidential proclamation. To say that a fraud has been committed on the Constitution is incorrect," asserted the AG.
The AG further argued that on the combined reading of Instrument of Accession (IoA) and the proclamation of the Maharaja of J&K, followed by adoption of 370, all traces of sovereignty of J&K were surrendered to the Indian dominion. He added that Article 370 was designed to aid the constitutional integration process on the same line as it happened with other states. Further, the continued exercise of Article 370 over a period could not be seen as a distortion of its original purpose. He asserted that border states were special territories and their reorganization requires distinct consideration. Thus, the court would refer to the wisdom of parliament in the choices of actions relating to such States.
'Psychological Duality' Resolved By Article 370 Abrogation: SG Mehta
The AG's opening argument was followed by Solicitor General (SG) Tushar Mehta. "The petitioners said your lordships will be making a historical decision in more than one way. This is the first time after 75 years that your lordships would be considering the privileges that the citizens of J&K had been deprived of till then," SG Mehta began, acknowledging the profound nature of the case. He said that the confusion over whether Article 370 was intended to be temporary or permanent had led to a 'psychological duality' within J&K. This uncertainty, according to SG Mehta, was resolved with the abrogation of Article 370, providing a sense of clarity and unity.
He asserted, "After going through the facts, it will be clear that a large number of fundamental rights and other rights will now be conferred upon the residents of J&K, and they would be fully at par with the rest of their brothers and sisters of this country."
Tracing the history of J&K's accession, the SG asserted that the moment the accession was complete, J&K's sovereignty was lost and it got subsumed with the larger sovereignty of India.
J&K Was Not The Only Princely State With Special Reservations In IoA: SG Mehta
The next limb of the SG's arguments challenged the assertion of an exclusive special status for J&K. Contrary to the notion that J&K held a special position within British India due to its Constitution in 1939 which continued later on, he argued that during the late 1930s, a multitude of princely states were in the process of drafting their own constitutions, with the assistance of eminent legal minds of the era. "There were 62 states which had their own Constitutions. The argument that J&K had a special status since the beginning which continued till date is factually wrong," he stated. SG Mehta mentioned that Alladi Krishnaswamy Iyer, a renowned legal expert, was involved in drafting the constitution for a region in Madhya Pradesh. However, his involvement ceased as the said princely State could not bear his fees.
He further emphasized that several states, including Manipur and Patna, embarked on Constitution-making processes alongside signing the instrument of accession, signaling their intention to integrate into the larger framework of India while maintaining certain autonomous features. He said–
"Manipur adopted a Constitution which on 26 July 1947 provided for fundamental rights and separation of powers and recognised the Maharaja as its constitutional head. Maharaja of Patna declared the setting up of a representative constitution making body on 24th Oct 1947. They were all making their Constitutions."
However, he emphasised that ultimately, once the Constitution of India was made, every State's sovereignty got subsumed within the Indian dominion and the only sovereign that remained was 'we the people of India'.
He argued that all States which became a part of India had differently worded instruments of accession and several provisions were given to stated for them to enjoy internal autonomy while being part of India. He said–
"'Equality of Status' was the goal while framing the constitution. One segment of the union cannot be deprived by rights enjoyed by the rest of the country."
He argued that the IoAs of various princely states contained different reservations, some in regards to taxation, some concerning land acquisition, and others stating that the State would not binding itself to accept a future constitution of India.
"I'm showing this to establish that a stand which has been taken that we had a special feature and therefore we were given special treatment and this provision was a privilege given to us which can't be taken away- I'm showing that there were many princely states. All princely states subsumed themselves with the Union of India because of the Act of State doctrine and because of Article 363 and Article 1."
Execution Of Merger Agreement Not Necessary To Become Part Of India: SG Mehta
SG Mehta, referring to the arguments raised by counsel for petitioners that a merger agreement was necessary and a precondition for complete integration with the union of India, argued that the execution of a merger agreement was not necessary to become a part of the Indian nation. He argued that there were many princely states which did not sign the merger agreement and yet became a part of India solely on basis of the instrument of accession they signed the moment the Indian constitution came into force. He said –
"Many states didn't sign the instrument of merger! But from the date on which Constitution of India came into force and Article 1 came into force, they became integral part of Union of India."
At this juncture, the CJI requested the SG to provide a list of all princely states which did not sign a merger agreement with India and yet became a part of the Indian Dominion. The SG agreed to the same.
J&K Was Being Discriminated Against Before The Abrogation: SG Mehta
Through his arguments, SG Mehta sought to highlight that there existed discrimination against the people of J&K as the Indian constitution was not fully applied to the state before the abrogation of Article 370 in 2019. He said–
"Till 1976, Article 21 was applicable with a truncated way. Article 19- there was a sub article added as it was applied to J&K- that reasonable restrictions would be those which would be prescribed by the legislature, meaning thereby, that the persons against whom citizens invoke Article 19 would decide what would be the reasonable restrictions."
In this context SG Mehta cited the speech of N Gopalaswami Ayyangar in which he had mentioned, “In the case of practically all States other than the State of Jammu and Kashmir, their constitutions also have been embodied in the Constitution for the whole of India. All those other States have agreed to integrate themselves in that way and accept the Constitution provided.”
At this point, Maulana Hasrat Mohani had interjected, “Why this discrimination, please?”
SG Mehta, in his arguments, stated that this question was very important - Why was India discriminating people of one state from other states?
He then quoted a portion of Ayyangar’s response to this question–
“The discrimination is due to the special conditions of Kashmir. That particular State is not yet ripe for this kind of integration. It is the hope of everybody here that in due course even Jammu and Kashmir will become ripe for the same sort of integration as has taken place in the case of other States. At present it is not possible to achieve that integration. There are various reasons why this is not possible now."
In his arguments, SG Mehta also highlighted that the practical consequence of this 'discrimination' was that two Constitutional organs- the State government and the President, in consultation with each other, could amend any part of the Constitution the way they want and apply it to J&K. In this context, he said–
"The preamble of Indian Constitution was made applicable to J&K by way of a Constitution Order under Article 370(1)(d) in 1954. Thereafter, in 42nd and 44th amendment, the words "socialist" and "secular" were added. That was not made applicable to J&K. Till 5th August 2019, Jammu and Kashmir Constitution was not having either the term 'Socialist' or 'Secular'."
Internal Sovereignty Should Not Be Confused With Autonomy: SG Mehta
SG Mehta asserted that the petitioners were confusing 'internal sovereignty' with 'autonomy'. He stated that autonomy lied with all states as they were federal units of the Union of India. To this, the CJI remarked–
"It (Autonomy) is actually there with every institution. We have the autonomous authority to decide constitutional issues. So we can't say that internal sovereignty vests with us. We are an independent, autonomous institution under the Constitution. They're saying that we gave up external sovereignty, no doubt. They say that course of events and the adoption of 370 would indicate that while there was a giving up of external sovereignty, internal sovereignty exercised by the then Maharaja, that was not ceded to India. This is accepting supremacy of our constitution and surrendering the sovereignty to the Constitution where the sovereign is "we the people of India"."
The SG also argued that according to him, the J&K Constituent Assembly was is nothing more than a legislature. On this submission, the CJI said–
"Eventually when you argue that this is not a constituent assembly but a legislative assembly in its original form, you'll have to answer how this squares up to clause (2) of Article 370 which specifically says Constituent Assembly formed for purpose of framing Constitution of J&K. Because there is a textual answer which may militate against your line of approach. Anyway, we'll discuss that later."
With this, the proceedings came to an end for the day. The arguments will resume on Monday, 28 August 2023.
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