Srinagar, December 21: According to the legal expert, while over the years many provisions of Constitution of India have been applied with or without modification to the state, by doing so, “it is the original sovereign power which may have got subsumed in the process but it has not altered sovereign character of the state.”
Jammu and Kashmir State has sovereign character as under Instrument of Accession the State surrendered a part of its sovereign power relating to defence, communications and foreign affairs while all other residue authority and powers were retained by it, said eminent legal expert Z A Shah.
“When Instrument of Accession was entered into, which is otherwise conditional, on October 26, 1947, State of Jammu and Kashmir was an independent State with all the powers vested in the then Ruler and the people of the State, it acted like a sovereign state and so did Union of India,” Shah told Greater Kashmir.
He said that under Instrument of Accession, the State surrendered part of its sovereign power relating to defence, communication and foreign affairs and all other residue authority and powers were retained by it.
“This position is recognized by Constitution of India and Constitution of Jammu and Kashmir,” he said.
According to the legal expert, while over the years many provisions of Constitution of India have been applied with or without modification to the state, by doing so, “it is the original sovereign power which may have got subsumed in the process but it has not altered sovereign character of the state.”
He said the concept of sovereignty over the years has undergone a change.
“Merely by conferring power on the parliament of India to make laws does not take away residual sovereignty of the state. India by being a member of Commonwealth has not lost its sovereignty. It is for political reasons that some people call it “autonomy” in the same way as the Articles of Constitution of Jammu and Kashmir are called “Sections” and not Articles,” he said.
When asked that the word “Sovereign” does not appear in the preamble of the Constitution of Jammu and Kashmir and how then the state has its sovereignty, Shah said: “It is unacceptable for the reasons that in the preamble to the Constitution of India before 3-1-1977 the words “Socialist” and “Secular” did not appear in the Constitution but yet the Supreme Court of India treated “Secular character” to be one of the features of the basic structure.”
He said Constitution of Jammu and Kashmir ‘is not nor can be subordinate to the Constitution of India.
“There is no reason to take a different view. Having regard to Instrument of Accession, status of the state at the time it was entered into, retention of the residual sovereignty, non application of the provisions of Constitution of India to the state except under presidential order with or without modifications, non application of many provisions of the Constitution of India to state, all these factors lead to inescapable conclusion that the state has not surrendered its original sovereignty at any point of time.”
Shah said that while a constitution is always made by the Republic and is in exercise of sovereign power of the state, he pointed out that a Constituent Assembly is different from Legislative Assembly.
“The Constitution of Jammu and Kashmir having been made by the Constituent Assembly in the same manner as the Constitution of India was made by Constituent Assembly of India, one Constitution cannot become subordinate to the other Constitution.”
Article 254 of the Constitution of India which provides for supremacy of the parliament in making laws, Shah said, applies to the legislative enactments. “It has no application to Constitutional law”.
Elucidating it, he said, when parliament makes laws in exercise of its legislative power on any subject, and if on the same subject any state legislature has also made a law under its legislative power, in that situation it is the parliamentary law which will prevail over the state law