J-K doesn't have 'internal sovereignty', rules SC in Article 370 verdict

The Supreme Court on Monday ruled the former state of Jammu and Kashmir did not have any 'internal sovereignty' that was distinguishable from the powers and privileges enjoyed by other states in the country.

A five-judge bench headed by Chief Justice D Y Chandrachud said while there was a clear absence in the Constitution of Jammu and Kashmir of a reference to sovereignty, in contrast, the Constitution of India emphasises in its Preamble that the people have resolved to constitute India into a sovereign, socialistic, secular, democratic republic.

'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,' it said.

The bench, also comprising Justices Sanjay Kishan Kaul, Sanjiv Khanna, B R Gavai and Surya Kant, said that all states in the country have legislative and executive power albeit to differing degrees.

'The Constitution accommodates concerns specific to a particular State by providing for arrangements which are specific to that State. Articles 371A to 371J are examples of special arrangements for different States. This is a feature of asymmetric federalism, like Article 370 which became applicable to Jammu and Kashmir on the adoption of the Constitution,' the bench said.

CJI Chandrachud, who penned a 352-page verdict on behalf of Justice Gavai and Surya Kant, said, in asymmetric federalism, a particular state may enjoy a degree of autonomy which another state does not.

'The difference, however, remains one of degree and not of kind. Different states may enjoy different benefits under the federal setup but the common thread is federalism,' it said.

Justices Kaul and Khanna wrote separate but concurring verdicts on the issue of abrogation of Article 370 which accorded special status to the erstwhile state.

The bench said the Instrument of Accession (IoA) executed by Maharaja Hari Singh in 1947 provided that nothing in it would affect the continuance of the sovereignty of the Maharaja in and over the State.

'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,' the bench said.

It added that the Proclamation reflects the full and final surrender of sovereignty by Jammu and Kashmir, through its sovereign ruler, to India to her people who are sovereign.

'Neither the constitutional setup nor any other factors indicate that the State of Jammu and Kashmir retained an element of sovereignty. The Constitution of Jammu and Kashmir was only to further define the relationship between the Union of India and the State of Jammu and Kashmir. The relationship was already defined by the IoA, the Proclamation issued by Yuvraj Karan Singh in November 1949 and more importantly, by the Constitution of India,' it said.

The top court said residual legislative powers cannot be equated to residual sovereignty as it reflects the value of federalism and the federal underpinnings of the Constitution of India.

'Neither Parliament nor any of the States have the unrestricted power to make laws. Each has its own sphere of legislation, as demarcated by the three lists in the Seventh Schedule to the Constitution. Each is supreme in its own sphere. The States have the plenary power to enact laws but this alone cannot be taken as a sign of sovereignty of individual States,' it said.

The bench said it is true that many commentators refer to these aspects of federalism as 'internal sovereignty' but by whatever name so called, it is clear that all states in the country have legislative and executive power albeit to differing degrees.

'If the position that Jammu and Kashmir has sovereignty by virtue of Article 370 were to be accepted, it would follow that other States which had special arrangements with the Union also possessed sovereignty. This is clearly not the case,' the bench said.

It said the people of Jammu and Kashmir, therefore, do not exercise sovereignty in a manner which is distinct from the way in which the people of other states exercise their sovereignty.