Supreme Court rejects HC ruling: No sovereignty for J-K outside Constitution of India

The bench called it “disturbing” that various parts of a judgment in appeal by the J&K High Court spoke of the absolute sovereign power of the state.

Written by Utkarsh Anand | New Delhi | Updated: December 17, 2016 9:49 am
kashmir, kashmir violence, kashmir stone pelting, burhan wani, burhan wani killing, narendra modi, mehbooba mufti, pdp bjp, pdp bjp alliance, india news, kashmir news The bench also clarified that J&K residents are “first and foremost” Indian citizens. File/Express Photo by Shuaib Masoodi

Snubbing the Jammu and Kashmir High Court for asserting the state’s “sovereignty” and “sovereign powers”, the Supreme Court Friday said J&K “has no vestige of sovereignty outside the Constitution of India”. A bench of Justices Kurian Joseph and Rohinton Nariman also rejected the J&K High Court’s view that the J&K Constitution was equal to the Constitution of India.

“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,” the bench said, referring to the preamble of the Constitution of J&K, 1957.

The bench called it “disturbing” that various parts of a judgment in appeal by the J&K High Court spoke of the absolute sovereign power of the state. “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,” the judges said.

The bench also clarified that J&K residents are “first and foremost” Indian citizens. “It is therefore wholly incorrect to describe it as being sovereign in the sense of its residents constituting a separate and distinct class in themselves. 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 top court pointed out that it was constrained to observe these because in at least three places, the High Court, in its judgment, “has gone out of its way to refer to a sovereignty which does not exist”.

Underlining that the quasi-federal structure of the Constitution of India continues even with respect to J&K, the bench said: “Article 1 of the Constitution of India and Section 3 of the Jammu & Kashmir Constitution make it clear that India shall be a Union of States, and that the State of Jammu & Kashmir is and shall be an integral part of the Union of India.” It said the J&K Constitution has been made to further define the existing relationship of the state with the Union of India as an integral part thereof.

The court said this while deciding a legal question on whether the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) will be applicable to J&K or the law was outside the legislative competence of Parliament since its provisions would collide with Section 140 of the Transfer of Property Act of J&K.

SARFAESI Act entitles banks to enforce their security interest outside the court’s process by moving a tribunal to take possession of secured assets of the borrower and sell them outside the court process. The High Court had said that the state has absolute sovereign power to legislate in respect of laws touching the rights of its permanent residents qua their immovable properties.

After the State Bank of India appealed against the High Court order, the J&K government submitted in the Supreme Court that this law encroached upon the property rights of permanent residents of the state and must be read down so that it will not be permissible to sell property belonging to a permanent resident of the state to outsiders. It was also argued that Parliamentary legislation would need concurrence of the J&K government before it could apply to the state under Article 370.

But the Supreme Court bench shot down these arguments, saying SARFAESI Act deals with recovery of debts due to banks and financial institutions, which is relatable to a subject under the Union List and parliamentary legislation did not require concurrence of the state government since the Centre had power to make law on this subject.

“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 bench said, adding that the SARFAESI Act had itself made a special provision for sale of properties in J&K.
The bench, however, made it clear that any provision of the J&K Transfer of Property Act will have to give way to the central law in case the former is found repugnant. “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,” it said, adding that its judgement had no effect on Article 35A, which confers on permanent residents of J&K special rights and privileges regarding acquisition of immovable property in the state.

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First Published on: December 17, 2016 5:11 am
  1. A
    Amitha
    Dec 17, 2016 at 1:17 am
    Who gave the rights to occupy Kashmir? Who is SC of Hindia to have jurisdiction over indigenous people?
    Reply
    1. K
      khan
      Dec 17, 2016 at 1:30 am
      Mr justice where in the world you follow two consutional authority
      Reply
      1. K
        khan
        Dec 17, 2016 at 1:33 am
        RAWALPINDI: One civilian embraced Shahadat and four schoolchildren were injured when the Indian troops violating the ceasefire sancy targeted an AJK school van at the Line of Control (LoC) in the Nakial sector on Friday morning.
        Reply
        1. C
          Clear state
          Dec 17, 2016 at 6:41 pm
          It's ppl like you who are responsible for the situation in Kashmir. Those who are not willing to reason. JandK has always been a power deficit state. The installed capacity in JandK is less than 1% of the country's total capacity. lt;br/gt;Thoda aap bhi pad lo.
          Reply
          1. R
            Ram kapoor
            Dec 17, 2016 at 2:31 am
            Why Kashmir people like to join stan are they or dumb ..stan is full of poverty , filth , terrorism , no aukaat in west ... No jobs ... No cinema ... stan is nothing ...
            Reply
            1. A
              Araknid
              Dec 17, 2016 at 1:11 am
              Just ignore the Supreme CORRUPT(SC).
              Reply
              1. R
                Raona
                Dec 17, 2016 at 8:12 am
                No one cares about a bunch of jihadi s from the valley
                Reply
                1. R
                  Rock star
                  Dec 17, 2016 at 6:58 am
                  U stupid. I am from Lakhanpur and nobody listen to u ksshmiris there
                  Reply
                  1. P
                    Praful Vora
                    Dec 17, 2016 at 2:53 am
                    Who are these high court judges ? They are bafoons and should be thrown out or be retired or they are afraid of terrorists so they are giving judgment in favor of terrorists?
                    Reply
                    1. Z
                      zeed
                      Dec 17, 2016 at 5:52 am
                      Arre meri chappanchurri !lt;br/gt;lt;br/gt;Kuch pad likh bhi ab. lt;br/gt;lt;br/gt;Nalayak!
                      Reply
                      1. Z
                        zeed
                        Dec 17, 2016 at 3:24 am
                        Funny judgement! lt;br/gt;lt;br/gt;Case of sour grapes! lt;br/gt;Writ of SC ends at Lakhanpur. lt;br/gt;lt;br/gt;Further their observations are flawed and will end up being in contradiction of the consution of both states. lt;br/gt;lt;br/gt;Maybe they could also have observed that Kashmir can no longer feed two recalcitrant nations at its breast. lt;br/gt;lt;br/gt;Every month the beggar nation to the south draws free hydropower worth 4000 crores. And the rest of the water is donated by this 'rich' water endowed beggar to its arch enemy on books. lt;br/gt;lt;br/gt;SC should ask the parliament to declare Pak as a terrorist state in a resolution and shut off the w border and stop trade rather than ask papa Sam to do it. But no they will not do that for unclear reasons. lt;br/gt;Because then all hot gas will start making stink. lt;br/gt;lt;br/gt;SC should likely stop crying and solve its backload of cases.
                        Reply
                        1. Z
                          zeed
                          Dec 17, 2016 at 5:35 am
                          Truth is most unpalatable. lt;br/gt;lt;br/gt;Kashmir has the first hydropower plant decades before Indias independence. That hydropowernwas always the chief draw of the valley. For its sheer size of more than 100,000 megawatts. lt;br/gt;Guess beggars got lucky! lt;br/gt;Guess wishes can be horses after all!!lt;br/gt;lt;br/gt;Word of advice: that device you are reading this on was probably charged by Kashmiri hydropower. lt;br/gt;Kashmir will accept a check please!lt;br/gt;Deposit yours before the third of every month. Thanks.
                          Reply
                          1. A
                            ARJUN
                            Dec 17, 2016 at 3:35 pm
                            ALL RETIRED ARMIES SHOULD BE ESTABLISHED IN KAASMIR WITH WEAPONS TO SEND THE TERRORIST KAASMIRI TO JONNOT
                            Reply
                            1. A
                              Anil Girotra
                              Dec 17, 2016 at 4:33 am
                              Good to see SC doing its duty as always
                              Reply
                              1. A
                                Ashish Biswas
                                Dec 17, 2016 at 1:42 am
                                POK, Baluchistan and Sind should be brought back to India. The errors made by Mountbatten and Nehru must be corrected.
                                Reply
                                1. S
                                  Sitara
                                  Dec 22, 2016 at 3:07 pm
                                  What is the difference between a country and a state? Please elaborate, Mr. Gua Rakhsha militant.
                                  Reply
                                  1. R
                                    Raj
                                    Dec 17, 2016 at 7:18 am
                                    Bhuke nange log, badi badi baatein.
                                    Reply
                                    1. R
                                      Raj
                                      Dec 17, 2016 at 4:50 am
                                      Divide Kashmir into 3 states, Valley-Jammu-Ladakh. Don't call it Kashmir - call it the Valley. You have to divide that state and limit the islamic migration into Jammu and Ladakh. Don't let people in the Valley migrate into Jammu and Ladakh.
                                      Reply
                                      1. R
                                        Raj
                                        Dec 17, 2016 at 4:51 am
                                        Dude, Kashmir couldn't even afford a train - let alone hydropower. Bhuke nange log, badi badi baatein.
                                        Reply
                                        1. R
                                          Raj
                                          Dec 17, 2016 at 2:18 pm
                                          Funny, the Army's having a free and easy day in your so called sovereign state...
                                          Reply
                                          1. R
                                            Raj
                                            Dec 17, 2016 at 2:19 pm
                                            Right... cheque, like stanis, Kashmiris seem like beggers too.
                                            Reply
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