jk-surrendered-its-sovereignty-to-india-absolutely-completely-sc

J&K surrendered its sovereignty to India ‘absolutely, completely’: SC

 

Context: Chief Justice of India D.Y. Chandrachud, heading a Constitution Bench hearing petitions challenging the abrogation of Article 370, said Jammu and Kashmir ceded its sovereignty to the Dominion of India “absolutely and completely”.

  • 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.
  • 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 Jammu and Kashmir lawmakers to confer people domiciled there with special rights and privileges.

 

Observation of Chief Justice of India D.Y. Chandrachud

  • The Chief Justice referred to the Constitution (Application) Order of 1972 in which Parliament was granted exclusive powers to make laws to prevent activities threatening sovereignty and territorial integrity of India.
  • It was no conditional surrender of sovereignty to the Dominion of India. The surrender of sovereignty was absolutely complete.
  • The restraint on Parliament to enact certain laws in Jammu and Kashmir was akin to limitations on enacting laws on subjects on 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
  • Take the case of Indian States other than Jammu and Kashmir. There are restraints on the Parliament to enact on the state subjects.
  • The distribution of legislative power does not affect the fact that sovereignty vests in India
  • But merely because 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.