J&K didn’t retain ‘sovereignty’ after accession to India

Satya Prakash

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New Delhi, December 11

Maintaining that states have no independent or standalone sovereignty under the constitutional setup, the Supreme Court on Monday ruled that Jammu and Kashmir didn’t retain any sovereignty following its accession to India.

No legal value: Pak

• Criticising the verdict, Pakistan said it had “no legal value” because international law does not recognise New Delhi’s “unilateral and illegal actions” of August 5, 2019.

Illegal, says China

• “Any unilateral change in the status quo (in Kashmir) is illegal and invalid,” said Chinese foreign ministry spokesperson Mao Ning.

A five-judge Constitution Bench led by CJI DY Chandrachud – which upheld the constitutional changes made in August 2019 that nullified Article 370 of the Constitution – also declared the Constitution of Jammu and Kashmir as “inoperative and redundant”.

The Bench noted that “Paragraph 8 of the Instrument of Accession (IoA) executed by Maharaja Hari Singh provided that nothing in the Instrument would affect the continuance of the sovereignty of the Maharaja in and over the state”.

However, “On November 25, 1949, a proclamation was issued for the state of Jammu and Kashmir by Yuvraj Karan Singh. The declaration in this proclamation that the Constitution of India would not only supersede all other constitutional provisions in the state which were inconsistent with it but also abrogate them achieves what would have been attained by an agreement of merger. With the issuance of the proclamation, Paragraph 8 of the Instrument of Accession ceased to be of legal consequence,” it concluded. “The state of Jammu and Kashmir does not retain any element of sovereignty after the execution of the IoA and the issuance of the proclamation dated November 25, 1949, by which the Constitution of India was adopted,” the Bench said.

“The state of Jammu and Kashmir does not have ‘internal sovereignty’ which is distinguishable from the powers and privileges enjoyed by other states in the country. Article 370 was a feature of asymmetric federalism and not sovereignty,” it said.

The proclamation reflected the full and final surrender of sovereignty by J&K, through its sovereign ruler, to India – to her people who were sovereign, it said. “Neither the constitutional setup nor any other factors indicate that the state of J&K retained an element of sovereignty. The Constitution of J&K was only to further define the relationship between the Union of India and J&K. The relationship was already defined by the Instrument of Accession, the proclamation issued by Yuvraj Karan Singh in November 1949 and, more importantly, by the Constitution of India,” the Bench said.

It said there was a clear absence in the Constitution of J&K of a reference to sovereignty. In contrast, the Constitution of India emphasised in its Preamble that the people of India resolved to constitute India into a sovereign, socialist, secular, democratic republic, it noted.

Writing the verdict for himself, Justice Surya Kant and Justice BR Gavai, the CJI said, “After the abrogation of Article 370… and the application of the entirety of the Constitution of India to the state, the Constitution of the state does not fulfil any purpose or serve any function.”