J&K Has No Sovereignty, Says SC

New Delhi: In its landmark judgment on validity of SARFAESI Act, Supreme Court of India made it clear on Saturday that Article 370 has nothing to do with “sovereignty” of Jammu & Kashmir and the residents of Jammu & Kashmir are first and foremost the citizens of India. A Bench of Justices Kurien Joseph and RF Nariman made it clear that Jammu & Kashmir has not special sovereign status. The Bench has struck down the decision of the J&K High Court which maintained that Indian Parliament has no jurisdiction to make laws for J&K.

Indian Parliament enacted the SARFAESI Act (also known as “Securitization Act”) for providing expeditious process of realisation of secured assets of financial institutions. Certain individuals affected by measures taken by State Bank of India had challenged the measures.  High Court of Jammu & Kashmir held that it was not within the competence of Indian Parliament to make the SARFAESI Act applicable to the State of Jammu & Kashmir.

While delivering the judgment on 16.7.2015, the High Court of Jammu & Kashmir had made various observations about Article 370 and had also observed that Constitution of India and the Constitution of Jammu & Kashmir are expressions of the sovereign will of the people and they have equal status and none is subordinate to the other. Once a Presidential Order has brought certain subjects of legislation within the competence of Parliament for applying a law to the State of Jammu & Kashmir, it is not necessary to obtain the concurrence of the State of Jammu & Kashmir whenever the Parliament decides to enact a law and make it applicable to the State of Jammu & Kashmir.

While striking down the High Court’s judgment and upholding the applicability of SARFAESI Act to the State of Jammu & Kashmir, the Supreme Court held that:

  1. The Constitution of Jammu & Kashmir was drafted by a Constituent Assembly elected on the basis of adult franchise and it specifically acknowledges that State of Jammu and Kashmir is and shall be an integral part of the Union of India.
  2. The opening paragraph of Constitution of India, namely “WE THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens…” has been wholly omitted in the Constitution of Jammu & Kashmir. There is no reference to sovereignty in the Constitution of Jammu & Kashmir.
  3. The residents of Jammu & Kashmir are first and foremost citizens of India.  The Constitution of India as also the Constitution of Jammu and Kashmir merely make reference to “permanent residents” of Jammu & Kashmir and does not provide for dual citizenship.
  4. Constitution of Jammu & Kashmir is subordinate to the Constitution of India.
  5. It is clear that the State of Jammu & Kashmir has no vestige of sovereignty outside the Constitution of India. It is wholly incorrect to describe Jammu & Kashmir as being sovereign in the sense of its residents constituting a separate and distinct class in themselves.
  6. It is rather disturbing to note that various parts of the judgment speak of the absolute sovereign power of the State of Jammu & Kashmir. 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.
  7. Jammu & Kashmir constitution is subservient to the Indian constitution & the constitution of India is supreme.

Supreme Court made strong observations such as ..“The High court judgment begins from the wrong end and therefore reaches the wrong conclusion” and Supreme Court went on to add that –“We have been constrained to observe this because in at least three places the High Court has gone out of its way to refer to a sovereignty which does not exist.”

The Supreme Court has put to rest the unwarranted controversies raised by certain individuals & organizations on the issue of Citizenship, Separate Constitution and Sovereignty with regard to the State of Jammu & Kashmir and has held in univocal term that not only Instrument of Accession but also the Constitution adopted by the people of Jammu & Kashmir itself recognizes that Jammu & Kashmir is an integral part of India and there is no such thing like sovereignty or dual citizenship and the Constitution of India is supreme to every law including the Constitution of Jammu & Kashmir.

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