J&K's Sovereignty Was Vested 'Exclusively In India', No Vestige Retained Post Instrument Of Accession: Supreme Court

Transfer of sovereignty to the dominion of India by the acceding states, including Jammu and Kashmir, was not conditional but absolute.

This is clearly stated in Article 1 of the Indian Constitution, as confirmed by the Supreme Court on Thursday.

The court is currently addressing petitions that challenge the modifications made to article 370 of the Constitution. This article previously granted special status to the former state of J&K.

Chief Justice of India D Y Chandrachud, who leads a five-judge Constitution Bench overseeing the petitions, emphasised that The Constitution (Application to Jammu and Kashmir) Second Amendment Order, 1972, has removed any doubt regarding the sovereignty of India.

He stated that no vestige of sovereignty remained after the Instrument of Accession (IoA) was enacted.

Article 248 deals with the residuary powers of legislation concerning all other states.

According to the CJI, there was no conditional transfer of sovereignty to the dominion of India. The surrender of sovereignty was complete and unquestionable. Once the dominion of India had full sovereignty, the power of Parliament to enact legislation became the only limitation. However, these restrictions have been subsequently modified.

The CJI referred to a provision in the 1972 order that amended Article 248 in relation to its application to the state of Jammu and Kashmir. This provision states that Parliament has exclusive power to make laws preventing activities that question or disrupt the sovereignty and territorial integrity of India.

Therefore, the 1972 order makes it clear that sovereignty is exclusively vested in India, leaving no trace of sovereignty retained after the instrument of accession.

During the court proceedings, Senior Advocate Zaffar Shah, representing the J&K Bar Association, argued that only a merger agreement, not the instrument of accession, can transfer sovereignty.

Shah informed the bench, consisting of justices S K Kaul and Sanjeev Khanna, that the framing of the J&K Constitution is rooted in the nature of the instrument of accession and the 1948 proclamation by the former Maharaja of J&K regarding the appointment of Sheikh Mohammad Abdullah as J&K prime minister.

According to Shah, there were limitations outlined in article 370 itself regarding the power of Parliament to make laws for J&K. One limitation stated that if a subject is related to List I (Union List) or List III (Concurrent List), which is not covered by IoA, then the concurrence of the state government is required. This means the concurrence of the people of the state through the council of ministers.

Shah argued that the special treatment for J&K is due to the absence of a merger agreement. Therefore, the autonomy had to be maintained. He also mentioned that the powers have gradually been diminished over time.

Justice Kaul pointed out that if sub-clause 3 of article 370 allows for a process to de-operationalize it, then claiming that article 370 is permanently unamendable becomes a challenging proposition.

Shah raised the question of who has the authority to remove article 370. He stated that for complete integration, IoA and article 370 would need to be eliminated, and a merger agreement executed, as J&K was once an independent state.

The hearing is scheduled to continue on 16 August.