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Constitution of J&K is sovereign

J&K's constitution is sovereign The Times of India, Jul 18 2015

Saleem Pandit

In a landmark verdict amid fresh legal challenges to J&K's special status, the state high court on Friday ruled that J&K's constitution was “sovereign in character“ and its assembly exercised “sovereign power“ to legislate laws. Underlining that J&K's unique character couldn't be challenged or abridged, a bench of Justices Muzaffar Hussain Attar and Ali Md Magrey passed the ruling that the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act couldn't be extended to the state because Parliament couldn't make laws for J&K under Article 370. The court had clubbed various petitions of around 550 loan defaulters challenging jurisdiction of the Act. The ruling comes at a time when a thinktank has announced plans to challenge the constitutional validity of the Indian Constitution's Article 35 (A) that bars non-residents from buying property in J&K.

The court said the Article clarifies the existing constitutional and legal position.The court said the Act, enacted in 2002 and amended twice, “adversely impacts the inalienable property rights of state subjects. “The Act is made beyond legislative competence by Parliament to the extent of Jammu & Kashmir, and thus cannot be extended to this state, the court said.

“Any law made by Parliament which affects the laws made by the state legislature cannot be extended and applied to J&K. The court said the Act affects rights of state subjectscitizens state subjectscitizens recognized by the constitution of India and the state. It ruled that Parliament lacks competence to make laws regarding J&K, which would affect the interests of state subjects with regard to their immoveable properties. “It is the state in terms of section 5 of the constitution of J&K, which has the absolute sovereign power to legislate laws touching the rights of its state subjectscitizens and their immoveable properties. It said the sale of immoveable property in pursuance to a civil court decree obtained by a bankfinancial institution in respect of the mortgaged property cannot be made in favour of non-state subjects.The court said the power of Parliament to make laws in respect of J&K is thus circumscribed. “It can make laws for it only where permitted by the state and not otherwise, and that too in accordance with the mechanism prescribed by Article 370 of the constitution of India,“ the court said. SARFAESI Act was enforced on December 17, 2002, to regulate securitization and reconstruction of financial assets and enforcement of security interests. It was amended in 2004 and 2012 to ensure immediate recovery of finances or money due to financial institutions from borrowers. It empowers banks to seize immovable property of defaulters.

State flag

2016 Jan: HC stays ruling on hoisting of state flag

The Times of India Jan 02 2016

Saleem Pandit

The Jammu & Kashmir high court on Friday stayed the December order of a single-judge bench directing that the state flag be hoisted alongside the Tricolour on official cars and buildings in line with the J&K constitution.

Justice Hasnain Masoodi had issued the order on a petition challenging the rescinding of a government directive, issued this March, that constitutional heads hoist the two flags together. The order was issued by the PDP-led government, before being cancelled a day later under pressure from ally BJP.

A division bench of the HC, comprising justices B L Bhat and Tashi Rabstan, also stayed Masoodi's comments that the state constitution's sixth amendment in 1965 -replacing the Sadr-e-Riyasat with a governor -was “unconstitutional“, and that Article 370 cannot be abrogated, repealed or even amended.

They issued notices to the relevant parties seeking their response in four weeks, after which the bench will hear arguments in the case.

BJP functionary Farooq Khan, a retired IPS officer, had challenged Masoodi's order.Khan's lawyer Sunil Sethi said the division bench's order was a “face-saver for BJP“, whose ministers in the state had refused to use the state flag. The BJP member had argued that no flag could have the same place as the Tricolour.

The development has triggered a political storm, with former chief minister Omar Abdullah attacking incumbent Mufti Mohammed Sayeed. Abdullah said if “Sayeed cannot defend the state's dignity and flag from the nefarious plans of his ally BJP , he should step down and find someone who can“.

Does the state have sovereign powers?

J&K HC: SARFAESI cannot be enforced

The Times of India, Dec 18 2016

AmitAnand Choudhary  Reminds HC Its People Are Indian Citizens First

Though Jammu & Kashmir enjoys special status under Article 370, it cannot claim sovereignty outside the Indian Constitution and its residents are “first and foremost“ citizens of India, the Supreme Court has ruled.

A bench of Justice Kurian Joseph and Justice R F Nariman set aside the judgement of J&K high court which had held that the state enjoyed sovereign powers to legislate in respect of laws touching the rights of its permanent residents with respect to their immovable properties.

The court said even though J&K had its own constitution, it cannot override provisions of the Indian Constitution. The bench ruled that J&K did not have sovereign powers and it was part of the country's federal structure.

“It is thus clear that the state of J&K has no vestige of sovereignty outside the Constitution of India and its own constitution is subordinate to the Constitution of India. 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 J&K, we need to remind the high court, are first and foremost citizens of India,“ it said. “There is no reference to sovereignty . Neither is there any use of the expression `citizen' while referring to its people. The people of J&K for whom special rights are provided in the Constitution are referred to as permanent residents under Part III of the constitution of J&K... the constitution of J&K has been made to further define the existing relationship of the state with the Union of India as an integral part thereof,“ it said.

Referring to Section 10 of J&K constitution which says permanent residents of the state shall have all rights guaranteed to them under the Constitution of India, the bench said, “They are governed first by the Constitution of India and also by the Constitution of J&K...We have been constrained to observe this because in at least three places the HC has gone out of its way to refer to a sovereignty which does not exist.“

Rejecting the HC's contention that both Constitutions were expressions of the sovereign will of the people, the bench said matters of national importance were with the Centre and those of local concern with the state. “...There is no dual citizenship,“ it said.

The court passed the order on an appeal filed by the State Bank of India challenging the J&K high court's verdict that various provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest (SARFAESI) Act, were outside the legislative competence of Parliament, as they would collide with Transfer of Property Act of J&K.

“It is rather disturbing to note that various parts of the judgement speak of the absolute sovereign powers of the state. It is necessary to reiterate that Section 3 of the Constitution of J&K, which was framed by a Constituent Assembly elected on the basis of universal adult franchise, makes a ringing declaration that the state of J&K is and shall be an integral part of the Union of India. And this provision is beyond the pale of amendment,“ the bench said.