Article 370 Hearing: Petitioner Questions CJI’s Remark on Absolute Transfer of Sovereignty

Six days after CJI DY Chandrachud observed that the integration of J&K with India was “absolute” and transfer of sovereignty was “complete” on signing of the Instrument of Accession (IoA), senior counsel Rajeev Dhavan on Wednesday contested it, saying internal sovereignty of the erstwhile state was never lost.

“There is some misunderstanding on the status of the merger agreement. The court had observed that after the Instrument of Accession, the surrender of sovereignty was absolute. Our submission is that as far as the Instrument of Accession is concerned, it deals with external sovereignty. That is lost with a few exceptions here and there. But internal sovereignty is not lost,” Dhavan told a five-judge Constitution Bench, led by CJI Chandrachud.

Noting that integration of J&K with India was “absolute and complete”; the Supreme Court had on August 10 said the Constitution of J&K couldn’t be read as a document that retained some element of sovereignty in the state.

However, on Day 6 of hearing on petitions challenging abrogation of Article 370, Dhavan, who represented the J&K’s People’s Conference, said the IoA dealt only with external sovereignty.

Noting that the Maharaja didn’t sign a standstill agreement, Dhavan said, “Article 370 was a substitute to the standstill or merger agreement without which we are lost.” Dhavan also questioned the effacement of the state to create two Union Territories. “When Maharashtra was broken, they said you have to refer, whether you like it or not… You can’t self-refer it to Parliament,” he told the Bench which also included Justice SK Kaul, Justice Sanjiv Khanna, Justice BR Gavai and Justice Surya Kant.