Jammu & Kashmir: Constitutional issues

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This is a collection of articles archived for the excellence of their content.

'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.