SC hearing: The Supreme Court on Thursday (August 10) said that the surrender of Jammu and Kashmir’s sovereignty to India was "absolutely complete" with its accession in October 1947, and added that it was “really difficult” to say that Article 370 of the Constitution was permanent in nature.
A five-judge bench headed by Chief Justice DY Chandrachud observed that once Article 1 of the Constitution says India shall be a Union of States, including Jammu and Kashmir, the transfer of sovereignty was complete in all respects.
Schedule 1 of the Indian Constitution contains the list of states and union territories and their extent and territorial jurisdiction, and Jammu and Kashmir figures there in the list.
The bench, also comprising Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai and Surya Kant, observed it cannot be said that some elements of sovereignty in Jammu and Kashmir were retained post Article 370.
"One thing is very clear that there was no conditional surrender of sovereignty of Jammu and Kashmir with India. The surrender of sovereignty was absolutely complete. Once sovereignty was absolutely vested in India, the only restraint was on the power of Parliament to enact laws (in respect of the state)," the CJI said.
"We cannot read the post Article 370 Constitution as a document which retains some element of sovereignty in Jammu and Kashmir," he added.
Senior advocate Zaffar Shah who appeared for one of the petitioners Jammu and Kashmir High Court Bar Association said that there is no power vested in the central government or in the President to make any laws for the erstwhile state, according to the Constitution.
Shah, who was arguing on the fifth day of hearing in the matter, said unlike Jammu and Kashmir, neither consultation nor concurrence was required for framing of laws with regard to other states.
"The constitutional autonomy of the state is embedded in Article 370," he asserted.
Justice Kaul said that the real issue is if the process adopted by the Centre for the abrogation of Article 370 was permissible or not.
"To say that Article 370 is permanent is really difficult"
"To say that Article 370 is permanent is really difficult. Suppose the state itself says that we want all laws (prevailing elsewhere in the country) to apply, then where does Article 370 go? Then, we really come back to the main question of process (where Parliament can repeal Article 370). Was this process permissible or not?" Justice Kaul asked Shah.
The senior counsel replied there may be different perceptions on the issue and the question would be whether Article 370 was temporary or became permanent as the constituent assembly was not there to remove it on August 5, 2019.
The senior lawyer said for complete integration of Jammu and Kashmir with India, one had to get rid of the Instrument of Accession signed on October 26, 1947 as well as Article 370, and execute a merger agreement.
Shah wondered whether one can proceed on an assumption that the constituent assembly of Jammu and Kashmir would have recommended to the Union of India the abrogation of Article 370 so it "completely integrates" with the country.
Justice Khanna voiced his reservations on the use of the term "completely integrates", saying the integration had already taken place as per Article 1 of the Constitution.
CJI Chandrachud said though there are restraints on the power of Parliament to make laws for states on subjects falling in the state list, the distribution of legislative powers does not affect the fact that the sovereignty vests in India.
"Restraint on the power to enact legislation is implicit in the scheme of the Constitution because we don't have a unitary state. But does that retract from sovereignty? No. It's just a fetter on Parliament," the CJI said, adding concurrence is not something unique only with regard to the country's relationship with Jammu and Kashmir.
The hearing remained inconclusive and will resume on August 16.
Several petitions challenging abrogation of the provisions of Article 370 and the Jammu and Kashmir Reorganisation Act, 2019, which split the erstwhile state into two union territories - Jammu and Kashmir, and Ladakh- were referred to a Constitution bench in 2019.
(With PTI inputs)
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