NEW DELHI: Senior advocate Rakesh Dwivedi told the
Supreme Court
some Jammu and Kashmir political parties, long wedded to democracy, have argued for retention of
Article 370
, which created a gap between India and J&K, by insisting wrongly that Maharaja of Kashmir continued to enjoy internal sovereignty even after signing the Instrument of Accession in October 1947.
Arguing before a bench of
CJI D Y Chandrachud
and Justices Sanjay K Kaul, Sanjiv Khanna, B R Gavai and Surya Kant, Dwivedi said, “The petitioners’ submissions on the basis that Maharaja Hari Singh was a paramount power and surrendered limited sovereignty to India on three subjects and ancillary matters while retaining the ‘remnant sovereignty’ over the rest of the matters is not consistent with historical context or the true facts as they existed.”
He said “if the petitioners refer to internal or remnant sovereignty as having plenary legislative power over matters, which may have been somewhat larger in the case of J&K, then that accords with
Ambedkar
’s description. But, if they mean remnant sovereignty emanating from paramount sovereign Maharaja, that is fallacious.”
The moment a princely state ruler signed the IoA, it got fully integrated with India and the ruler is stripped of every vestige of sovereignty, he said, adding, “The petitioners appear to believe in the continuance of monarchy by advocating on the line of ‘the King is dead, long live the King’.”
He said the Indian Constitution was the guiding factor for framing of the J&K Constitution, which always remained subservient to the former. The President under Article 370 was given power to extend provisions of the Constitution of India to J&K through numerous orders, consent for which since 1957 have always been given readily by the assembly or J&K government, Dwivedi said.
He said, “Article 370 was always considered to be a temporary provision. Speeches of Dr Ambedkar, N Gopalaswamy Ayyangar (in Constituent Assembly), Jawaharlal Nehru, and Gulzarilal Nanda (in Parliament) clearly indicate that complete assimilation of J&K at par with other States, in due course, was envisaged from the very beginning. Therefore, Article 370 was mentioned in the Indian Constitution as temporary and transitional provision.” He said time has come to bury the ghost of Article 370, which has become defunct over the decades.
“The fact that the President has over the years issued several Constitution Orders and has brought about fuller assimilation of J&K and parity with the other states of India shows the trust was rightly reposed in the President to power where conditions were ripe and necessary,” he said on the 14th day of arguments on the issue.
He pointed out the fallacy of the argument about the President being incapacitated to nullify Article 370 in the absence of a recommendation from J&K Constituent Assembly, which ceased to exist since 1957, as the provision would acquire permanent status in Indian Constitution despite being expressly termed temporary and become defunct for all practical purposes. This means, “even if the people of J&K vote in a referendum unanimously for cessation of Article 370, there would be no power left to respect the will of the people. Even if this is supplemented by the Legislative Assembly of J&K, the position would remain the same,” he said.
