Write Comment     |     E-Mail To a Friend     |     Facebook     |     Twitter     |     Print

J&K’s surrender of sovereignty to India was ‘absolutely complete’, says Supreme Court Chief

Justice of India D.Y. Chandrachud, heading a Constitution Bench hearing petitions challenging the abrogation of Article 370, on August 10 said Jammu and Kashmir ceded its sovereignty to the Dominion of India “absolutely and completely”.“It was no conditional surrender of sovereignty to the Dominion of India. The surrender of sovereignty was absolutely complete,” Chief Justice Chandrachud observed orally.

The restraint on Parliament to enact certain laws in Jammu and Kashmir was akin to limitations on enacting laws on subjects in the State List of the Indian Constitution. Limitations placed on the legislative power of the Parliament cannot be construed to mean that Jammu and Kashmir, unlike other princely states which ceded to the Dominion and became full-fledged States under the Constitution, retained its sovereignty, the Chief Justice noted.The court was reacting to arguments that the “special autonomous status” granted to Jammu and Kashmir and retention of “residuary legislative powers” in the State were clear indications that Jammu and Kashmir retained an element of sovereignty even after the Instrument of Accession was entered into between the erstwhile ruler and the Indian government in October 1947.However, the Chief Justice referred to the Constitution (Application) Order of 1972 in which the Parliament was granted exclusive powers to make laws to prevent activities threatening sovereignty and territorial integrity of India.

But senior advocate Zaffar A. Shah, appearing for one of the petitioners, persisted that the view would have been acceptable, except that Article 370 had given “residuary legislative powers” to Jammu and Kashmir.The Chief Justice said restraints on the power of the Parliament to enact legislation were implicit in the frame or scheme of the Constitution. “We are not a unitary state... Fetters on the Parliament does not dilute its sovereignty,” Chief Justice Chandrachud noted.Justice Sanjay Khanna, on the Bench, asked Shah what was supreme — the Constitution of India or the accession instrument. Justice Sanjay Kishan Kaul said the integration of Jammu and Kashmir was “complete”. Justice Kaul said the “effectiveness” of Article 370 was “chipped away over time”.