The Supreme Court stated on Thursday that the accession of Jammu and Kashmir to the dominion of India was unconditional, as reflected in Article 1 of the Indian Constitution. The court is currently hearing petitions challenging the changes made to Article 370, which granted special status to the former state of JK.
Chief Justice of India D Y Chandrachud, leading a five-judge Constitution Bench, emphasized that the surrender of sovereignty by Jammu and Kashmir to India was absolute, with no vestige of sovereignty retained post the Instrument of Accession. The court also noted that Article 248 provides for residuary powers of legislation in respect of all other states.
Referring to the 1972 order, the Chief Justice highlighted the exclusive power of Parliament to make any law with respect to preventing activities directed towards disclaiming, questioning, or disrupting the sovereignty and territorial integrity of India. The court emphasized that the sovereignty vested exclusively in India, and not in Jammu and Kashmir.
Senior Advocate Zaffar Shah, representing JK Bar Association, argued that only a merger agreement, and not the Instrument of Accession, can transfer sovereignty. He also pointed out the limitations provided in Article 370 regarding the power of Parliament to make laws for JK. Shah emphasized that the special treatment for JK was due to the absence of a merger agreement, and that the autonomy had gradually been eroded.
Justice Kaul noted that if sub-clause 3 to Article 370 allows for a process to de-operationalize Article 370, then the idea that Article 370 has a permanent character in the Constitution that can never be amended is a difficult proposition.
Shah contended that the question of who can remove Article 370 is a complex issue, and that complete integration would require getting rid of the Instrument of Accession and Article 370, and executing a merger agreement because Jammu and Kashmir was an independent state.
The hearing will resume on August 16.
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