Article 370 case: Integration of Jammu and Kashmir with India was not conditional but absolute, says Supreme Court

In no way was the integration of Jammu and Kashmir (J&K) with India in 1948 conditional, the Supreme Court said on Thursday while hearing the batch of petition challenging the abrogation of Article 370. [In Re: Article 370 of the Constitution]..A Constitution Bench of Chief Justice of India (CJI) DY Chandrachud and Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai and Surya Kant underlined the integration of J&K with India was absolute.This was in response to the argument of Senior Advocate Zaffar Shah that if the Government of India wanted to 'completely integrate' the erstwhile State with the Union of India, then a merger agreement should have been executed as it happened with other princely States.CJI Chandrachud then remarked,"One thing is very clear that the there was no conditional integration of Jammu and Kashmir with India. The integration was absolute and complete in every which way. So the only question which remains in a limited sense was if Parliament could exercise the power etc. Take the case of an Indian State apart from J&K. There are restraints on the power of parliament to make laws for any States for subjects on State lists. Distribution of the legislative powers does not impact sovereignty of India."Today was the fifth day of the hearing in the case.The matter is being heard nearly four years after the Central government's move in August 2019 that resulted in the revocation of the special status of Jammu and Kashmir (J&K).The erstwhile State was subsequently bifurcated into two Union Territories.The Union Home Ministry recently filed an affidavit before the Court stating that after the abrogation of Article 370, Jammu and Kashmir has witnessed unprecedented stability and progress, with stone pelting and school closures becoming a thing of the past..Senior Advocate Zaffar Shah argued today on behalf of the Jammu & Kashmir High Court Bar Association.He set out the historical context behind Article 370. "Why was J&K special? It was because there was no merger agreement and the State had to maintain a constitutional autonomy. We are here before this court because we believe that J&K has constitutional autonomy and this autonomy comes from the instrument of accession and Article 370. President and Union can make laws for any state in the country without their view but not for Jammu and Kashmir," he stated.Justice Kaul opined that to view Article 370 as unamendable might have dangerous implications. "To say that Article 370 is such that it can never be amended is a dangerous thing to say. State assembly could have also said that let all provisions of the Constitution apply to J&K using Article 370. Except 370 remains a skeleton, everything else applies. Even now in the sense Article 370 is not removed, whatever was there in Article 370 has been removed using the machinery of Article 370 itself. Does it not all come down to one thing - whether the process followed was flawed or not is the question here?".Justice Khanna then asked whether the Indian Constitution was supreme or the Instrument of Accession executed between the Government of India and Maharaja J&K by which J&K became a part of India."Of course the Constitution of India is supreme but with Article 370 in it," replied Shah. The CJI said that requirement to have concurrence of the State is not something unique to J&K laws. "See Article 248. Parliament can make laws even on area which is in State list only, but it requires concurrence of the concerned State. But this does not impact the sovereignty of the Union," the CJI underlined.Shah replied by saying that the J&K was only seeking to reclaim its constitutional autonomy that had been snatched away."So how do I get the constitutional autonomy back. Even if Article 370 was a skeleton, it was removed because it was disturbing someone somewhere," he said.Shah also condemned the actions of the then Governor of J&K for acting contrary to his oath. "The Governor of Jammu and Kashmir is guilty of serious constitutional misconduct. The Governor is supposed to uphold the constitution of Jammu and Kashmir and he by his recommendation destroyed the Constitution of Jammu and Kashmir and applied the whole of Indian Constitution to the State. He committed a breach of his oath; now this Governor (Satya Pal Malik) is spilling beans all across the country as to how he was forced to sign on the dotted line," Shah said..Shah underscored that self-abrogation of Article 370 was suicide and such self-killing was not permissible."What is entrapped in Article 370 is not what is textually written. One needs to see the purpose and the purposive interpretation is what needs to be applied to. You (Centre) use Article 367, alter Article 370 and then keep Article 367. This is the manipulation and this is not the way you deal with States. He also said that Article 370 has nothing to do with national security or law and order problems in the State."Whether there is national security issue etc. What does Article 370 have to do with what happens on the streets of Srinagar etc? All law like NIA Act etc was applicable. They say stone pelting etc have gone down but that has no relation with this (Article 370). Those are law and order issues. Article 370 was not related with this. I am not on what development has been done etc," Shah said..Senior Advocate Rajeev Dhavan then began his submissions. "This court had held that historical promises made to Sikkim has to be honoured and our Constitution is replete with promises to the people. Article 3 and Article 4, it is the Achilles heel of the Constitution, but here we see the creation of a Union territory under it." Dhavan added that the procedure of abrogation was a circuitous one.The hearing will continue on August 16..Read our coverage of Day 1 of the hearing here and here.Read our coverage of Day 2 of the hearing here and here.Read our coverage of Day 3 of the hearing here and here.Read our coverage of Day 4 of the hearing here and here..[Follow our live-coverage of today's hearing]