On 11th December 2023, in its landmark decision Supreme Court upheld the abrogation of Article 370 in the case of In re: Article 370 of the constitution (2023). Article 370 of the Constitution of India incorporated special arrangements for the governance of the State of Jammu and Kashmir. The President issued Constitutional Orders 272 and 273 during the subsistence of a Proclamation under Article 356(1)(b).
These orders have the effect of applying the entire Constitution of India to the State of Jammu and Kashmir and abrogating Article 370. Contemporaneously, Parliament enacted the Jammu and Kashmir Reorganisation Act 2019 which bifurcated the State into two Union territories.
Petitions were filed in the Supreme Court against the decision of abrogation. While deciding the issues raised in the petitions, the Supreme Court first decided the issue whether the state of Jammu & Kashmir possess the sovereignty.
The Question of Jammu & Kashmir Sovereignty
[We are extracting it form the judgment of article 370, with some edits in paras and headings]
Some petitioners urged that the State of Jammu and Kashmir retained an element of sovereignty when it joined the Indian Union. They argued that the IoA (Instrument of Accession) ceded ‘external sovereignty’ to the Union of India by ceding control over the subjects of defence, foreign affairs, and telecommunication but the State retained ‘internal sovereignty’ because of:
a. The history of the relationship between Jammu and Kashmir and India;
b. The formation of the Constituent Assembly of Jammu and Kashmir;
c. The adoption of the Constitution of Jammu and Kashmir; and
d. The power to enact laws on all subjects except defence, foreign affairs, and telecommunication.
They urged that Article 370 subsumed the sovereignty retained by the State.
In response, the Union of India advanced the argument that any sovereignty which vested with the State was ceded with the signing of the IoA. The Union argued that the constitutional scheme (of both the Indian Constitution and the Constitution of Jammu and Kashmir) does not indicate that any element of sovereignty was retained by the State.
The question of whether the State retained any element of sovereignty is a primary issue which will bear upon the other issues before this Court.
The question which is being considered by this Court when it adjudicates whether Jammu and Kashmir retained sovereignty is two-fold:
First, did the State of Jammu and Kashmir retain sovereignty as distinct from its people? If not, is the exercise of sovereign power by the people of Jammu and Kashmir different from the exercise of sovereign power by the citizens of India who reside in different states?
Neither the constitutional setup nor any other factors indicate that the State of Jammu and Kashmir retained an element of sovereignty
Article 1 of the Constitution of India provides that India is a Union of States. The immutability and import of Article 1 in its application to the State of Jammu and Kashmir may be gleaned from many provisions:
a. Article 1 (as it then stood) referenced Part III States, and Jammu and Kashmir was listed as a Part III State in the First Schedule to the Constitution of India;
b. Article 370(1)(c) of the Indian Constitution reiterates that Article 1 shall apply to the State. While Article 370 contains provisions for applying other provisions of the Constitution with modification or exceptions to the State of Jammu and Kashmir, there is no provision for the modification or abrogation of Article 1; and
c. Section 3 of the Constitution of Jammu and Kashmir declares that Jammu and Kashmir is an integral part of India: “Relationship of the State with the Union of India The State of Jammu and Kashmir is and shall be an integral part of the Union of India.”
d. Section 147 prohibits any amendment to Section 3. These provisions, too, contradict the argument that an agreement of merger was necessary for Jammu and Kashmir to surrender its sovereignty. The Constitution, once adopted and in force, became the supreme governing document of the land. The merger of Jammu and Kashmir with the Union of India was an unequivocal fact, as evinced from these provisions.
Preamble of Jammu & Kashmir Constitution
On 17 November 1956, the Constituent Assembly of Jammu and Kashmir approved and adopted the Constitution of Jammu and Kashmir. The Preamble to the Constitution states:
“WE, THE PEOPLE OF THE STATE OF JAMMU AND KASHMIR, having solemnly resolved, in pursuance of the accession of this State to India which took place on the twenty-sixth day of October, 1947 to further define the existing relationship of the State with the Union of India as an integral part thereof.”
Three aspects of the Preamble are of significance:
a. The Constitution of Jammu and Kashmir was not adopted independently of the Union of India but was adopted in pursuance of the accession of the State to India;
b. 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; and
c. That the State of Jammu and Kashmir was an integral part of the Union of India was reiterated in the Constitution of Jammu and Kashmir.
The debates of the Constituent Assembly of Jammu and Kashmir also reveal that sovereignty lay with the people of India (which included the people of Jammu and Kashmir) and not with the State or its people alone.
The absence of the word of sovereignty
There is a noticeable difference between the Preamble to the Indian Constitution and the Preamble to the Constitution of the State of Jammu and Kashmir which has been extracted above. The Preamble to the Indian Constitution states,
“We the people of India, having solemnly resolved to constitute India into a sovereign, socialist, secular and democratic republic…”
There is a clear absence in the Constitution of Jammu and Kashmir of a reference to sovereignty. While the Constitution of India emphasises in its Preamble that the people of India resolved to constitute India into a sovereign, socialistic, secular, democratic, republic, the basic purpose of the Constitution of Jammu and Kashmir as set out in the Preamble is to define further the relationship of the State with the Union though as an integral part of India.
Section 2(a) of the Constitution of Jammu and Kashmir provides that “the Constitution of India means the Constitution as applicable in relation to this State”.
Section 4 defines the territory of the State of Jammu and Kashmir to comprise of all the territories which on 15 August 1947 were under the sovereignty or suzerainty of the Ruler of the State.
Section 5 defines the extent of the executive and legislative power of the State in the following terms:
“5. Extent of executive and legislative power of the State
The executive and legislative power of the State extends to all matters except those with respect to which Parliament has power to make laws for the State, under the provisions of the Constitution of India.”
Section 5 defines the extent of the legislative and executive power of the State by relating it to matters over which Parliament has power to make laws for the State. In other words, the residual power which is left after excluding the domain which falls within the ambit of the legislative power of Parliament in relation to the State, would be within the legislative and executive domain of the State of Jammu and Kashmir.
Section 5 however recognises that the legislative domain of Parliament in relation to the State of Jammu and Kashmir would be prescribed by the Constitution of India and necessarily therefore not by the Constitution of the State of Jammu and Kashmir.
Section 6 of the Jammu and Kashmir Constitution provides for Permanent residents. It is important to note that permanent residents do not possess dual citizenship – one of the State of Jammu and Kashmir and another of the Union of India. Rather, they are citizens only of one sovereign unit, that is, the Union of India.
Part IV of the Jammu and Kashmir Constitution provides for the Directive Principles of State Policy; Part V for the Executive consisting of the Governor and the Council of Ministers headed by the Chief Minister; Part VI for the State Legislature comprising of the Legislative Assembly and the Legislative Council. Part VI provides for the High Court and the “subordinate courts”. Part VIII provides for Finance, Property and Contracts; Part IX for the Public Services; Part X for Elections and Part XI for Miscellaneous Provisions; Part XII for Amendment of the Constitution. None of these provisions indicate that the State is sovereign.
Power of Amending the Constitution
Section 147 which provides for the amendment of the State Constitution. The power of the Legislative Assembly to amend the Constitution of Jammu and Kashmir was subject to the constraints provided in the second proviso in terms of which the Legislative Assembly could not amend:
a. Section 147 itself;
b. The provisions of Sections 3 and 5; and
c. The provisions of the Constitution of India as applicable in relation to the State.
These provisions are significant. The power of amending the State Constitution which was entrusted to the Legislative Assembly (subject to the assent of the Governor) had thus three major qualifications:
firstly, the position that the State of Jammu and Kashmir is and shall be an integral part of the Union of India was unamendable;
secondly, the executive and legislative domain of the State which depended upon the domain entrusted to Parliament under the provisions of the Constitution of India over which it would make laws for the State of Jammu and Kashmir was unamendable by the State Legislative Assembly; and
thirdly, the provisions of the Constitution of India as applicable in relation to the State of Jammu and Kashmir were unamendable by the State Legislative Assembly.
These restraints which were imposed on the amending power of the State Legislative Assembly made it abundantly clear that Jammu and Kashmir being an integral part of the Union of India was a matter of permanence and unalterable. Moreover, any modification in the relationship of the State of Jammu and Kashmir with the Union of India would have to be brought about within the framework of the Constitution of India and that Constitution alone.
Relations with the Union of India
In adopting the Constitution of India, “We, the people” constituted India into a sovereign republic. The State of Jammu and Kashmir was an integral part of the India. The Constitution of Jammu and Kashmir recognized that position by acknowledging the permanence of Jammu and Kashmir as a constituent State in the sovereign republic of India. In attempting to “further define” the relationship between the State of Jammu and Kashmir with the Union of India, the use of the expression “further” conveys the intendment that the defining characteristics of that relationship were not exclusively embodied in the Constitution of the State.
The State being an integral part of the Union of India, the executive and legislative domain of the State relates to the Constitution of India. The territorial integrity of the Union of India, which encompassed as one of the constituent units, the State of Jammu and Kashmir, was beyond the domain of the authorities in the legislative and executive sphere constituted by the State Constitution. The defining contours of the relationship between the State and the Union lay beyond the framework of the State Constitution and would be governed by the Constitution of the Union.
Any restraints on the power to modify the relationship of the Union with the State would thus have to be traced to the Constitution of India and not the Constitution of Jammu and Kashmir. Significantly, the Constitution of the State of Jammu and Kashmir did not contain an elaboration of the subjects on which the State could legislate in view of the provisions of Section 5. The legislative domain of the State of Jammu and Kashmir was a remainder or the residue left after the legislative domain of Parliament to make laws for the State of Jammu and Kashmir as defined in the Constitution of India.
The Preamble of the Constitution of Jammu and Kashmir, Sections 3, 5 and 147 of the State Constitution, coupled with Article 1 of the Constitution of India read with the First Schedule as well as Article 370 indicate in no uncertain terms that a system of subordination (as understood by the definition of sovereignty) exists by which the State is subordinate to the Indian Constitution first and only then to its own Constitution.
The Constitution of India was and is the supreme governing document of all States including the State of Jammu and Kashmir. The discussion of the provisions of the two Constitutions in the preceding paragraphs is indicative of this fact.
In SBI v. Santosh Gupta,[1] this Court rejected the argument that the Constitution of Jammu and Kashmir has a status that is equal to the Constitution of India.
Parliament has the power to enact laws on all matters which are not listed in Lists II and III by virtue of Article 246 read with Entry 97 of List I of the Seventh Schedule. However, Entry 97 was not extended to the State of Jammu and Kashmir by any Constitution Order issued under Article 370(1)(b). Thus, unlike other states, the State of Jammu and Kashmir had residuary legislative powers in view of Section 5 of the Constitution of Jammu and Kashmir.
At this juncture, it is important to refer to the Delhi agreement where it was decided that the State of Jammu and Kashmir shall have the residuary legislative powers because of the “consistent stand taken by the Constituent Assembly of Jammu and Kashmir” that sovereignty with respect to all matters other than those stipulated in the IoA continues to reside in the State.
Residual legislative powers cannot be equated to residual sovereignty
This is not indicative of the sovereignty of Jammu and Kashmir. Residual legislative powers cannot be equated to residual sovereignty. It instead 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 is true that many commentators refer to these aspects of federalism as ‘internal sovereignty.’ By whatever name so called, it is clear 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 nothing but a feature of asymmetric federalism, which Jammu and Kashmir too benefits from by virtue of Article 370.
Asymmetric federalism
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. 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.
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. As noticed by this Court in other segments of this judgment, the special circumstances in Jammu and Kashmir necessitated a special provision, that is, Article 370. Article 370 is an instance of asymmetric federalism. 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.
In conclusion, the State of Jammu and Kashmir does not have ‘internal sovereignty’ which is distinguishable from that enjoyed by other States.
Reference
Re: article 370 of the constitution, 2023
[1] (2017) 2 SCC 538