The Supreme Court on Wednesday said once the Instrument of Accession (IoA) signed by Maharaja Hari Singh in 1948 got subsumed in a post-Constitution document indicating the transfer of power, the IoA can't act as a fetter on Parliament's powers.
On the fourth day of hearing on petitions challenging the nullification of Article 370, a five-judge Constitution Bench led by CJI DY Chandrachud to know if the IoA ceased to exist after Jammu and Kashmir became a part of India.
“The reason I asked this was that it could possibly be that the fetter on powers of Parliament under clause (d) of Article 370(1) was also a limited transitional provision which would operate so long as the IoA held the field as an independent document,” the CJI said.
The Bench – which also included Justice SK Kaul, Justice Sanjiv Khanna, Justice BR Gavai and Justice Surya Kant – posed several questions to senior counsel Gopal Subramanium and Zaffar Shah on the IoA, sovereignty and the constitutional relationship between the Union of India and Jammu and Kas
It asked about the status of the IoA once the Constituent Assembly of J&K adopted its Constitution “Would it (IoA) be subsumed in the state Constitution?”
Subramanium answered in the affirmative. “Yes, because the state Constitution itself recognises the accession in 1948. The IoA was for a very limited purpose at that time. But later on, there was the Constituent Assembly, the accession was complete and the Constitution of J&K itself declared that integration was complete,” he said.
Subramanium, however, sought to emphasise that bilateralism was in the very nature of Article 370 and it contemplated limitations on the powers of Parliament which could not be obviated by taking recourse to the imposition of President's rule under Article 356.
“What seems to have happened in the IoA is that sovereignty seems to have transferred to India but the power of legislation – one part of sovereignty – is not with Parliament,” the CJI said.
Shah said, “If we look at Article 370(a) it seems to subsume within itself the power that the Maharaja had. He had retained the entire residuary sovereignty with himself. Sovereignty is the power to make laws… Art 370 subsumes the sovereignty which was retained by Maharaja. At the same time, its finality could not be determined – not of 370 but of the State itself.”
Shah said, “Article 370 subsumes the sovereignty which was retained by the Maharaja. At the same time, its finality could not be determined – not of Article 370 but of the state.”
“The IoA is an act of State- between two sovereign states. I'll shake hands with you but I'll not embrace you. Nothing prevented him from merging with India, to totally erase itself of its status,” Shah said.
However, the CJI said, “Once accession takes place, there are certain fetters- that he (Maharaja) unconditionally recognises the sovereignty of India but he retains certain exceptions. He says I'm surrendering powers for three areas (defence, communication, foreign affairs). But what accession means is that J & K becomes an intrinsic part of India.”
