Does accession means Jammu & Kashmir becomes intrinsic part of India, SC asks
The top court observed that by its very nature, Article 370 is very flexible and that constitutional provisions are generally made very flexible so that they could last for long.
A five-judge bench led by Chief Justice of India D Y Chandrachud said post-1957, neither the government or legislative assembly of J&K, or for that matter the political establishment in the rest of the country represented by Parliament, ever thought of amending the Indian Constitution to bring J&K Constitution expressly within the fold of Indian Constitution.
The bench, also comprising Justices Sanjay Kishan Kaul, Sanjiv Khanna, B R Gavai, and Surya Kant, is hearing a batch of petitions challenging the dilution of Article 370, which granted special status to the erstwhile state of Jammu and Kashmir.
Senior advocate Zafar Shah, representing one of the petitioners argued on sovereignty related to the power to make laws by the state legislature.
On this, the bench asked him, “if it would be a correct reading, once accession takes place and what happens is that there are certain fetters, certain reservations are retained in the Instrument of Accession that unconditionally recognises the sovereignty of India but carves out certain areas which it retains... only surrendering the powers to make laws only for defence, foreign affairs, and communications.”
“What accession really means, accession means that Jammu and Kashmir becomes a complete and intrinsic part of India and there will not be any going back on that, isn’t it," the bench asked him.
Shah, for his part, said that one view would be that territory which was transferred to India means de-facto Union government is in possession of the state of J&K but sovereignty is not transferred to the Union of India.
The bench, however, said, “what seems to happen with Instrument of Accession is that sovereignty is transferred and recognised in the dominion of India but the power of legislation which is an incident of sovereignty but legislation is not the entirety of sovereignty. Legislation is one aspect of sovereignty".
Shah said Article 370 is a special relationship between Jammu and Kashmir and India and queried, what does the Constitution of India do with a state that has not merged but acceded?
During the hearing, the bench told senior advocate Gopal Subramanium, representing another petitioner, that by nature Article 370 is very flexible, and normally Constitutions are flexible with time and space because they're made once and they could last for a long time.
The bench observed that if one looks at Article 370, it says that modifications can be done that the Constitution of India as applicable to J&K should assimilate whatever is happening in other parts of the country.