J&K has no sovereignty: SC

: Jammu and Kashmir has “no vestige” of sovereignty outside the Indian Constitution, and citizens of the State are “first and foremost” citizens of India, the Supreme Court has held.

The court made this observation while describing as “wholly incorrect” the conclusion arrived at by the Jammu and Kashmir High Court that the State has “absolute sovereign power” to legislate laws touching the rights of its permanent residents regarding their immovable properties.

“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,” a Bench of Justices Kurian Joseph and R.F. Nariman said.

“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 Supreme Court said this while holding that provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest (SARFAESI) Act, 2002, are within the legislative competence of Parliament and can be enforced in J&K. The State Bank of India had appealed against the High Court verdict which held that the SARFAESI Act would collide with the Transfer of Property Act of Jammu & Kashmir, 1920.

HC verdict set aside

The Bench set aside the verdict of the High Court that held that any law made by Parliament which affects the laws made by a State legislature cannot be extended to Jammu & Kashmir.

“The High Court judgment begins from the wrong end and therefore, reaches the wrong conclusion. It states that in terms of Section 5 of the Constitution of Jammu & Kashmir, the State has absolute sovereign power to legislate in respect of laws touching the rights of its permanent residents qua their immovable properties,” the Supreme Court said. “We may also add that permanent residents of Jammu & Kashmir are citizens of India, and there is no dual citizenship as is contemplated by some other federal Constitutions in other parts of the world.”

Concern in J&K

The National Conference, which stands for complete restoration of Article 370, fears “violation of State Subject laws”.

“It remains a fact that in certain aspects of Centre-State laws, State laws run supreme. Earlier, the Centre’s rights were limited to defence, foreign affairs, communication and currency. J&K is a case of sub-sovereignty,” said NC spokesman Junaid Azim Mattu.

Calling for a more nuanced understanding of Article 370, Mr. Mattu said, “The State Bank of India (SBI) per se is not a State subject. However, it has come into being [in J&K] because of the State legislature. It can’t have mortgage rights and violates State Subject laws.”

The J&K government was of the opinion that the SARFAESI Act “encroached upon the property rights of permanent residents of the State” and “would need concurrence of the J&K government under Article 370”.

(With PTI inputs)

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Printable version | May 18, 2022 1:18:10 pm |