SC rejects JK HC ‘s assertion on sovereignty

J&K has no vestige of sovereignty outside Constitution of India

JK News Today

New Delhi ,December 17

The Supreme Court has  rejected the Jammu and Kashmir High Court’s assertion that the state’s sovereignty cannot be challenged or altered.

The apex court said that the state has “no vestige of sovereignty outside the Constitution of India”.

It has also declined the HC’s view that the state’s Constitution was equal to that of India’s Constitution. Citing the preamble of the Constitution of J&K, 1957, the top court said, “It is clear that the state of Jammu & Kashmir has no vestige of sovereignty outside the Constitution of India and its own Constitution, which is subordinate to the Constitution of India… they (residents of state) are governed first by the Constitution of India and also by the Constitution of Jammu & Kashmir.”

In a landmark ruling last year in July, the Jammu and Kashmir High Court said that the sovereignty of the state remained “legally and constitutionally” intact and could be challenged, altered or abridged. “The sovereignty of the State of J&K under the rule of Maharaja, even after signing of Instrument of Accession and in view of framing of its own Constitution, thus ‘legally and constitutionally remained intact and untampered’,” a division bench of the court said.

The SC bench said that it found several parts of HC judgment in the appeal, which spoke about the absolute sovereign power of the state, disturbing. The judges said, “It is necessary to reiterate that Section 3 of the Constitution of Jammu & Kashmir, which was framed by a Constituent Assembly elected on the basis of universal adult franchise, makes a ringing declaration that the State of Jammu & Kashmir is and shall be an integral part of the Union of India. And this provision is beyond the pale of amendment.”

It also said that that HC needs to be reminded that the state subjects are “first and foremost” Indian citizens and it was completely incorrect to describe it as being sovereign and as a separate and distinct class itself. “The residents of Jammu & Kashmir, we need to remind the High Court, are first and foremost citizens of India… permanent residents of the state of J&K are citizens of India, and that there is no dual citizenship as is contemplated by some other federal Constitutions in other parts of the world,” it said.

The SC ruling came during a decision on a legal question on whether the 2002 SARFAESI Act is applicable to the state or if it is beyond the legislative competence of Parliament as the provisions will clash with Section 140 of the Transfer of Property Act of J&K.

The HC bench had said in its ruling last year that the SARFAESI Act is not applicable to Jammu and Kashmir owing to this unique constitutional position. “Provisions of the Act can be availed of by the banks, which originate from the State of J&K, for securing the monies which are due to them and which have been advanced to the borrowers, who are not State subjects and residents of the State of J&K and who are non State subjects/non citizens of the State of J&K and residents of any other State of India excepting the State of J&K,” it said.

The State Bank of India appealed against this High Court order.

The SC has rejected the arguments of the state government that SAFRESI Act was not applicable to permanent residents of Jammu and Kashmir and that it encroached upon the property rights. The state also said that Parliamentary legislation would need to concur with the state government before it could apply to it under Article 370. ““Entries 45 and 95 of List I clothe Parliament with exclusive power to make laws with respect to banking… the Act as a whole would necessarily operate in the state,” the SC bench said. It added that there was a special provision for sale of properties in the state under SAFRESI Act.

“It is clear that anything that comes in the way of SARFAESI by way of a Jammu & Kashmir law must necessarily give way to the said law,” said SC judgment, adding that it had no on effect on Article 35A which gives permanent residents of state special rights and privileges regarding acquisition of immovable property in the state.

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