In a judgment that would safeguard the special status of Jammu and Kashmir under Article 370, the J&K High Court Friday said that the constitution of the state is “sovereign in character” and the Assembly exercises sovereign power to legislate laws. The court also said that the “sovereign character” of the state cannot be challenged or abridged.
The division bench comprising Justices Muzaffar Hussain Attar and Ali Mohammad Magrey also ruled that Article 35 (A) of the Constitution of India — which RSS and its affiliates view as unconstitutional and want repealed — clarifies the already existing constitutional and legal position and does not extend something new to the state.
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The ruling comes against the backdrop of an RSS-backed think tank, the Jammu & Kashmir Study Centre, planning to challenge the constitutional validity of Article 35 (A), which bars non-residents of J&K from buying land or property in the state. It also bars non-residents from getting a government job or voting rights in the state assembly.
The J&K court gave its verdict on a petition regarding the applicability of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI) in the state.
The SARFAESI Act, 2002, enacted and enforced by the Indian Parliament in 2002, empowers banks and financial institutions to recover their non-performing assets without the court’s intervention. The High Court said this Act cannot be applied to J&K, but suggested that the state can have its own law on the lines of the SARFAESI Act.
“Entry 45 of List (I) of Schedule 7th of Constitution of India has been extended to the state of J&K in accordance with the mechanism and procedure prescribed by Article 370. The Parliament has, thus, power to legislate laws in respect of banking,” reads the judgment. “The Parliament has, however, no power to legislate law about the subject of administration of justice, the land and the other immoveable properties.”
The court said that the “laws made by the Maharaja (of J&K) are protected by the Constitution of 1939 and the subsequent Constitution framed by the Constituent Assembly of the state of J&K, which includes protection given to the state subjects and non-transferring of immoveable properties to non-state subjects”.
The judgment further reads, “In law, the state of J&K constitutes a class in itself and cannot be compared to other states of the country. The constitutional provisions and laws which have been extended to the state in accordance with provisions of Article 370 have been made applicable to the state with modifications, thus making the distinct, unique and special position of the state of J&K more clear.”