A bench led by CJI Chandrachud said, “There is no conditional surrender of sovereignty by the Maharaja… Sovereignty was ceded completely to India by J&K, there is absolutely no doubt about it.
The bench comprising CJI Chandrachud and Justices Sanjay Kishan Kaul, Sanjiv Khanna, Bhushan R Gavai and Surya Kant was responding to advocate Zaffar M Shah, representing the J&K HC Bar Association, who argued that J&K didn’t sign a merger agreement with Dominion of India following the Instrument of Accession, unlike other princely states.
After senior advocates Kapil Sibal and Gopal Subramaniam — appearing for petitioners challenging the neutering of Article 370 to annul the 69-year-old special status of J&K — referred to developments of post-Republic India and attempted to highlight the autonomy in internal administration given to the state as per the wishes of the people of the state, Shah said unlike other princely states, which merged with India and completely ceded their sovereignty to India, the J&K Maharaja retained residuary legislative powers over all issues except defence, external affairs and communications.
“It was Article 370 which permitted the state assembly, as per the wishes of people of J&K, to assert autonomy over legislating on residuary powers, which was not available to other states,” said the counsel. J&K had decided to shake hands with India, but when it would embrace India, was left to the will of the people and the state maintained its constitutional autonomy through Article 370 that restricted application of provisions of Indian Constitution to J&K, Shah added.
The bench intervened decisively and said, “There is no conditional surrender of sovereignty by the Maharaja… (It) was absolutely complete. And once the sovereignty was unquestionably and fully vested with India, then the only restraint to be applicable was on the law-making power of Parliament.”
The CJI drew Shah’s attention to the Constitution (Application to J&K) Order of 1972 and said this provision makes it beyond the pale of doubt that sovereignty is vested exclusively with India.
“No vestige of sovereignty was retained by J&K post signing of the Instrument of Accession (by the Maharaja on October 27, 1947),” he said. “Article 248 (of the Constitution of India), as it was applicable to J&K immediately before the abrogation of Article 370, contains an absolute acceptance of sovereignty of India,” he said.
The bench also disagreed with the argument that Article 370 specifying consultation and concurrence with J&K prior to application of provisions of the Indian Constitution to the state or restraint on Parliament from making law for the state was unique to J&K.
It said, “Restraint on the power to enact legislation is implicit in the scheme of the Constitution. We do not have a unitary scheme. But that does not detract from the fact that despite limitations on law making power of Parliament, sovereignty is vested in India… Article 1 provides that India shall be a Union of States, that includes J&K. Transfer of sovereignty was complete. Therefore, we cannot read the post Article 370 document as something that retains some element of sovereignty with J&K.”
The bench said, “See Article 252…. Here also there is a requirement of concurrence of states. So, in that sense, concurrence is not unique to J&K. There are various shades of concurrence which are required… These are fetters on Parliament’s law-making power. Look at GST law. It is a classical case where Parliament or the government of India could do nothing without the concurrence of the states. 246A has completely redefined our notions of sovereignty. Because the states are being given a vital role in financial matters. Parliament can do nothing unless there is a requisite majority in the GST Council.”
The arguments will continue on Tuesday.