Noting that integration of Jammu and Kashmir with India was “absolute and complete”, the Supreme Court on Thursday said the Constitution of Jammu and Kashmir can’t be read as a document that retained some element of sovereignty in the state.
“Once Article 1 of the Constitution says that India shall be a Union of States — and that includes the state of Jammu & Kashmir — transfer of sovereignty was complete. We cannot read the post Article 370 Constitution (of Jammu and Kashmir) as somehow a document which retains some element of sovereignty in Jammu & Kashmir,” said Chief Justice of India DY Chandrachud – who headed a five-judge Bench hearing petitions challenging the validity of nullification of Article 370.
Emphasising that “distribution of legislative powers does not impact the sovereignty of India,” the Bench said restraint on Parliament’s powers to make laws on subjects in the State List also applied to states other than Jammu and Kashmir.
“One thing is very clear – that there was no conditional integration of Jammu and Kashmir with India. The integration was absolute and complete in every way. So the only question which remained in a limited sense was if Parliament could exercise the powers,” said the Bench which also included Justice SK Kaul, Justice Sanjiv Khanna, Justice BR Gavai and Justice Surya Kant.
Referring to the Constitution (Application to Jammu and Kashmir) Second Amendment Order, 1972, which amended Article 248 which deals with residuary powers of legislation, the CJI said, “In 1972, Article 248 was amended in relation to its application to J&K. Article 248 was substituted. Now, it says Parliament has exclusive powers to make any laws on prevention of activities towards disrupting sovereignty of India. So, no vestige of sovereignty was retained post Instrument of Accession.”
The CJI’s comments came after senior counsel Zaffar Shah contended on behalf of the Jammu and Kashmir Bar Association that Jammu & Kashmir had constitutional autonomy which came from the Instrument of Accession and Article 370. “If you want to completely integrate, then a merger agreement has to be executed,” Shah said.
“The President and the Union (of India) can make laws for any state in the country without their view but not for Jammu and Kashmir,” he submitted.
On the fifth day of arguments, Shah submitted, “The genesis of the Constitution of Jammu and Kashmir is in the Instrument of Accession and the order of proclamation. The first part of Article 370 talks of application of laws in List 1, list 2, list 3… It mentions ‘consult’,” Shah said, adding, “’Consult’ does not mean ‘agree’… you may disagree also.”
However, the CJI said, “Restraint on 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 the powers of Parliament.”
“Take the case of an Indian state apart from J&K. There are restraints on power of parliament to make laws for any states for subjects in State lists, the CJI said, adding, “There are provisions in the Constitution which apply with concurrence of states also.”
During the hearing, Justice SK Kaul said, “To say that Article 370 is such that it can never be amended is a dangerous thing to say. The state assembly could have also said let all provisions of the Constitution apply to J&K using Article 370. Except that Article 370 remains a skeleton, everything else applies…Whatever was there in Article 370 has been removed using the machinery of Article 370 itself.”
Responding to Justice Kaul’s observation, Shah said, “I (J&K) still have constitutional autonomy, maybe a little. Maybe, it’s a skeleton as Justice Kaul said…But somebody felt that the skeleton was disturbing him. Therefore, he got it off.” The hearing would resume on August 16.
