J&K’s surrender of sovereignty to India was ‘absolutely complete’, says Supreme Court

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


The Supreme Court of India is currently hearing a batch of petitions challenging the constitutional validity of the abrogation of Article 370, which granted special status to the erstwhile state of Jammu and Kashmir. The central government had revoked Article 370 on August 5, 2019, and bifurcated Jammu and Kashmir into two union territories.

One of the main issues raised by the petitioners is whether Jammu and Kashmir had retained any degree of sovereignty or autonomy after its accession to India in 1947, and whether Article 370 was a permanent or temporary provision of the Constitution.

The Supreme Court, in its oral observations, has made it clear that Jammu and Kashmir's sovereignty was ceded completely to India after its accession, and that the inclusion of Jammu and Kashmir in Article 1 of the Constitution meant that the transfer of sovereignty was complete without any conditional surrender. The court also stated that the restrictions on the law making power of the Parliament with respect to Jammu and Kashmir did not dilute the dominion of India's sovereignty over the state.

The court's observations were made while addressing the submissions made by senior advocate Zaffar Shah, who was appearing for the J&K High Court Bar Association. Shah argued that at the time of accession, 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. He also contended that 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. He further claimed that J&K could be integrated with India completely only after the signing of a merger agreement and revocation of Article 370 and the Instrument of Accession.

The court rejected these arguments and pointed out that there was no conditional surrender of J&K's sovereignty to India, and that the surrender was absolute. The court also referred to a constitutional order issued in 1972, which amended Article 248 (which provides the Parliament with residuary powers) in its application to J&K, and stated that it made it clear beyond doubt that the sovereignty of J&K existed exclusively with India. The court also noted that once Article 1 of the Constitution says that India shall be a Union of States, it also includes J&K with a complete transfer of sovereignty.

The court's observations have significant implications for the outcome of the case, as they indicate that the court is inclined to uphold the abrogation of Article 370 as a valid exercise of constitutional power by the central government. The court has also indicated that it will examine whether the procedure followed by the government in issuing the presidential orders for revoking Article 370 was in accordance with the Constitution.

The hearing is expected to continue for several more days, as various parties have yet to present their arguments before the five-judge bench comprising Chief Justice DY Chandrachud, Justices Sanjiv Khanna, L Nageswara Rao, BR Gavai and Hrishikesh Roy.

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