Article 370 case: Rajeev Dhavan contests CJI’s observation that transfer of J&K’s sovereignty to India is complete

Satya Prakash

New Delhi, August 16

Six days after CJI DY Chandrachud observed that the integration of Jammu and Kashmir with India was “absolute” and transfer of sovereignty was “complete” on signing of the Instrument of Accession (IoA), senior counsel Rajeev Dhavan on Wednesday contested it, saying internal sovereignty of the erstwhile state was never lost.

“There is some misunderstanding on the status of the merger agreement. The court had observed that after the instrument of accession the surrender of sovereignty was absolute. Our submission on this is that as far as the instrument of accession is concerned it deals with external sovereignty. That is lost with a few exceptions here and there. But internal sovereignty is not lost,” Dhavan told a five-judge Constitution Bench led by CJI Chandrachud.

Noting that integration of Jammu and Kashmir with India was “absolute and complete”; the Supreme Court had on August 10 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,” the CJI had said.

However, on day 6 of hearing on petitions challenging abrogation of Article 370, Dhavan — who represented the Jammu and Kashmir People’s Conference – said – the IoA dealt only with external sovereignty.

Noting that the Maharaja didn’t sign a standstill agreement, Dhavan said, “Article 370 was a substitute to the standstill or merger agreement without which we are lost.”

Dhavan also questioned the effacement of the state to create two union territories. “When Maharashtra was broken, they said you have to refer, whether you like it or not… You can’t self-refer it to Parliament,” he told the Bench which also included Justice SK Kaul, Justice Sanjiv Khanna, Justice BR Gavai and Justice Surya Kant.

“Most of the Union Territories were created by constitutional amendments apart from Chandigarh or under the aegis of the constitutional amendment. For J&K, the state has become two union territories, one without legislature and one with legislature. It has been done without any reference to Articles 239 or 239AA. This cannot be under the remit of Articles 3 and 4,” he submitted.