Supreme Court Snubs J&K High Court, Says No Sovereignty For The State Outside Constitution of India

Supreme Court on Friday snubbed the Jammu and Kashmir High Court and said that J&K ¡°has no vestige of sovereignty outside the Constitution of India¡±. Earlier the J&K High Court had said that the state has the absolute sovereign power to legislate in respect of laws touching the rights of its permanent residents qua their immovable properties.

¡°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.

AFP

The bench also 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 apex court 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 Supreme Court underlined the quasi federal structure of India even in the respect of J&K and 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.¡±

The Court said that the J&K Constitution has been framed to further define the existing relationship between the state and 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 the 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 earlier had said that the state had absolute sovereign power to legislate in respect of laws touching the rights of its permanent residents qua their immovable properties, and therefore, bank can¡¯t act as per the SARFAESI.

After High Court¡¯s decision, the State Bank of India appealed against the High Court order in SC which resulted in SC snubbing J&K High Court over the matter of state's sovereignty.