Article 370 Case | Jammu & Kashmir's Surrender Of Sovereignty To India Was Absolutely Complete, Says Supreme Court During Hearing[Day 5]

During the fifth day of the ongoing hearing in the Article 370 case, the Supreme Court Constitution bench orally observed that the surrender of Jammu and Kashmir's sovereignty to India had been unconditional and absolute. It was further underlined by the bench that fetters placed on the Indian Parliament in terms of its law making powers in relation to Jammu and Kashmir does not mean any dilution of the sovereignty vested in India.

The discussion arose during the submissions made by Senior Advocate Zaffar Shah who was appearing for the J&K High Court Bar Association. The senior counsel argued that at the time of accession to India, the erstwhile Maharaja of J&K had retained certain powers, such as the power to make laws (other than laws on defence,communication,and foreign affairs) and this was embedded in Article 370. Also, after the adoption of J&K Constitution, the State Legislature was given the powers over the subjects in the residuary entry, instead of the Parliament. With this as a backdrop, Senior Advocate Shah highlighted that the state legislature of J&K had more powers as compared to the other states in India. He argued that the same was owing to the fact that the other states had merged with the dominion of India and had no personality of their own. However, with regards to J&K, it was the State's concurrence which was necessary to pass certain laws. 

Following this, Shah asked–

"Does it come to your lordships' mind that when Article 370 came in, did they proceed on an assumption that this Constituent Assembly of J&K will recommend to the Union of India to do away with 370 so it completely integrates?"

Justice Sanjiv Khanna immediately expressed his reservations on the use of words "completely integrates" by Shah and emphasized that the integration of J&K with India had already taken place as per Article 1 of the Constitution. Shah argued that the context surrounding Article 370's enactment was crucial to understanding the issue and the 2019 developments cannot negate the historical circumstances. 

CJI DY Chandrachud intervened at this juncture stating that the surrender of J&K's sovereignty to India was unconditional and absolute. He said–

"One thing is very clear that the there was no conditional surrender of sovereignty of J&K with India. The surrender of sovereignty was absolutely complete. Once sovereignty was absolutely, fully vested in India, the only restrains would be on power of Parliament to enact laws."

In this context, the CJI highlighted that in 1972, Article 248 (which provides the Parliament with residuary powers) was amended in its application to the State of J&K by Constitutional Order 93. As per the amendment, the Parliament was given exclusive powers to make any law with respect to prevention of activities directed towards disclaiming, questioning or disrupting the sovereignty and territorial integrity of India. Therefore, the CJI stated that–

"The order of 1972, makes it beyond doubt that sovereignty is vested exclusively in India. Therefore, no vestige of sovereignty was retained post IoA. Is it correct that Art 248 as it is applicable to J&K immediately before 5th August 2019 contains an absolutely clear and unequivocal acceptance of sovereignty of India?"

To this, Shah responded by stating that the legal question which arose was that when a state acceded, it was asked if it transferred its sovereignty to the Union of India. J&K had stated no to the same and such sovereignty could only be transferred by terms of a merger agreement. To this, a bemused Justice Khanna asked–

"What is superior? Is the constitution of India superior?"

While Shah responded in an affirmative, the Chief Justice elaborated further on his point and underscored that various provisions in the Constitution required concurrence with States but the same did not necessarily undermine the sovereignty of the Union of India. He stated that limits on law-making powers of Parliament were built into the Constitution's design due to India following a system where power was not solely centralized. He underlined that the same did not reduce India's sovereignty but simply put a boundary on what the Parliament could do. The CJI said–

"Take the case of any other Indian state apart from J&K. There are restraints on power of parliament to make laws for any states for subjects on state lists. The distribution of the legislative powers does not affect that the sovereignty vests in India. Restrain on power to enact legislation is implicit in the scheme or the frame of the constitution because we don't have unitary state. But does that retract from sovereignty? No. It's just a fetter on parliament."

In order to contextualize his viewpoint, emphasizing the essential tenet of Article 1 (which establishes India as a Union of States including J&K), the CJI provided Shah with an example of Section 249. Asserting that "once Article 1 states that India shall be a Union of States, inclusive of J&K, the transfer of sovereignty was unequivocally accomplished and we should not construe the post Article 370 Constitution as a document that inadvertently preserves any remnants of sovereignty within J&K," the CJI highlighted the broader scope of concurrence within the Constitution and stated that the requirement for concurrence was not unique to India's relationship with J&K. He said–

"There are various shades of concurrence required in the Constitution. That doesn't reflect on sovereignty of the Union. These are fetters. See 246A, when it came in as a result of the GST amendment. This is a classic case where the Government of India or parliament can do nothing without the concurrence of states. 246A has completely redefined our notions of sovereignty as states are given vital role in financial matters. Our notions of parliamentary exclusion from states has been an evolving exercise. But one thing is clear, sovereignty was ceded completely to Union of India."

In response, Shah countered, "What about the constitutional provisions that necessitate concurrence, and wherein the President applies modifications post concurrence? Is such a provision applicable to other states as well?" 

He highlighted that he was only claiming the constitutional autonomy which was taken away from J&K. He said–

"How do we get that back? By demonstrating to this court what we had. I still have the constitutional autonomy, maybe little. Maybe it's a skeleton as Justice Kaul said. But somebody felt that the skeleton was disturbing him. Therefore, he got it off."

Live-updates from today's hearing can be followed here