Chief Justice of India D.Y. 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.
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“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 Jammu and Kashmir and retention of “residuary legislative powers” in the State were clear indications that Jammu and Kashmir 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. 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 Jammu and Kashmir instead of the Centre, unlike the case with other States. The agreement had also empowered the Jammu and Kashmir lawmakers to confer people domiciled there with special rights and privileges.
