Jammu and Kashmir: Can't equate internal sovereignty with autonomy, Centre tells Supreme Court
Satya Prakash
New Delhi, August 24
The Centre on Thursday contested petitioners’ argument that Jammu and Kashmir ceded only external sovereignty on signing of the Instrument of Accession in October 1947 and that internal sovereignty remained with the erstwhile state.
“The petitioners are confusing internal sovereignty with autonomy. External sovereignty, no one can dispute lies with the Union of India… Internal sovereignty would mean autonomy of federal units. This autonomy is there with every state,” Solicitor General Tushar Mehta told a five-judge Constitution Bench led by Chief Justice of India DY Chandrachud.
The Solicitor General’s submission came after the CJI said the Centre will have to deal with the petitioners’ arguments that Jammu and Kashmir gave up its external sovereignty on accession to India but it didn’t surrender its internal sovereignty.
Noting that the princely states were making their own constitutions, Mehta said when more and more Princely States started acceding; they started participating in framing of the Indian Constitution.
Once the Indian Constitution came everything started getting subsumed, Mehta emphasised and said, “Article 1 came… and when the First Schedule (of the Constitution) came, the only sovereign that remained was ‘we the people of India’.”
Article 1 says, “India, that is Bharat, shall be a Union of States” and “The States and the territories thereof shall be as specified in the First Schedule.” It further says, “The territory of India shall comprise— (a) the territories of the States; (b) the Union territories specified in the First Schedule; and (c) such other territories as may be acquired.
Earlier, commencing arguments on behalf of the Centre on the 10th day of hearing on petitions challenging nullification of Article 370 and bifurcation of Jammu and Kashmir into two union territories, Attorney General R Venkataramani told the Bench that a balanced view of things needed to be taken.
Venkataramani said it should not be a case of losing the nation and preserving the Constitution. Noting that as a general law life and limb must be protected, he said, “A limb can be amputated to save a life but a life is never given to save a limb.”
“Mr AG, we cannot postulate a situation where the ends justify the means… Means should also be consistent with the ends,” the CJI told Venkataramani.
“No deviation has taken place with regard to this presidential proclamation. To say that a fraud has been committed on the constitution is incorrect,” the Attorney General responded to the Bench – which also included Justice SK Kaul, Justice Sanjiv Khanna, Justice BR Gavai and Justice Surya Kant.
Mehta took the Bench through the history of accession of Jammu and Kashmir in detail. He said “The moment Jinnah heard that India has accepted J&K’s accession, Jinnah invited Nehru to Lahore to discuss the problem… Mountbatten was eager to accept the invitation and Nehru was inclined to agree with Mountbatten. But Sardar Patel was strongly opposed to the proposition on the ground that Pakistan was the aggressor and India ought not to follow the policy of appeasing the aggressor.
“Nehru was running a high fever. It was decided that Mountbatten should go alone,” Mehta told the Bench, quoting from VP Menon’s book.
“High fever also seems to be an act of diplomacy,” the senior counsel Kapil Sibal quipped. “It was a diplomatic illness and was necessary at the time,” Mehta replied.
He said, “Nehru, in his capacity as the Vice President of the Interim Government, which included both present day India and Pakistan, clearly said that independent India would not accept the divine right of kings.”
We the people
Once the Indian Constitution came everything started getting subsumed, Mehta emphasised and said, “Article 1 came… and when the First Schedule (of the Constitution) came, the only sovereign that remained was ‘we the people of India’.”
