Chief Justice of India DY Chandrachud, heading a Constitution Bench hearing petitions challenging the abrogation of Article 370, on Thursday 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 the 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.

State list

“Take the case of Indian States other than Jammu and Kashmir. There are restraints on the Parliament to enact on State subjects. The distribution of legislative power does not affect the fact that sovereignty vests in India. So, yes, there are certain areas where the Parliament cannot touch on the State list. But merely because the Parliament is disabled from touching a State list item while enacting a law, does not detract from the fact that all these States had once ceded their sovereignty to the Dominion of India,” the CJI observed on the fifth day of the marathon hearings.

The court was reacting to arguments that the “special autonomous status” granted to J&K and retention of “residuary legislative powers” in the State were clear indications that J&K 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.

Legislative powers

The special status granted to Jammu and Kashmir was “engrafted” in the Constitution through Article 370. Subsequently, the ‘Delhi Agreement’ by Sheikh Mohammad Abdullah and Jawaharlal Nehru in 1952 had seen the Union government acquiesce that residuary legislative powers would vest with J&K instead of the Centre, unlike the case with other States. The agreement had also empowered the J&K lawmakers to confer people domiciled there with special rights and privileges.

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.

“The 1972 Order makes it clear beyond a pale of doubt that sovereignty vested exclusively in India and no vestige of sovereignty was retained by Jammu and Kashmir post the Instrument of Accession. The Order is an absolutely clear and unequivocal declaration of the sovereignty of India,” Chief Justice Chandrachud addressed senior advocate Zaffar A Shah, appearing for one of the petitioners.

But Shah persisted that the view would have been acceptable, except that Article 370 had given “residuary legislative powers” to Jammu and Kashmir.

“Yes, you can say that with the coming of the Indian Constitution, the Instrument of Accession goes, the sovereignty goes, everything goes. But it does not seem to be like that. This unique relationship between Jammu and Kashmir and the Union stood for 69 years until 2019. This was how the governments of the day had worked it out,” Shah submitted.

But the Chief Justice said restraints on the power of the Parliament to enact legislations 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 Instrument of Accession.

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”.

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