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| SC judgement on J&K's political status rattles separatists, half-separatists | | J&K nationals are Indian nationals first | |
Early Times Report
JAMMU, Dec 19: The December 16 Supreme Court's landmark judgement on the status of Jammu & Kashmir Constitution, Article 370 and status of citizens of Jammu & Kashmir has rattled separatists, half-separatists, legal fraternity, civil society groups and business associations. They have all in one voice denounced the state government for not presenting the case of the state in right perspective and accused the state government of hatching a conspiracy in alliance with the BJP to erode the state's special status.
Leave aside what the separatists and the legal fraternity in Kashmir said about the Supreme Court judgement, For, they said what they were expected to say. See what NC working president said about the verdict while attacking the PDP-BJP government in the state. He said: "The Union Government is using the judicial route to undermine Article 370, Article 35-A and the very constitutional character of Jammu & Kashmir State".
What has upset the Kashmiri separatists and Omar Abdullah and ilk? The Supreme Court judgment upheld the applicability of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest (SARFAESI) Act to Jammu & Kashmir and protects the interests of banks in case of default by borrowers. It also challenges the Jammu & Kashmir Transfer of Property Act.
The Early Times reproduces the operative part of the judgement in full for the information of its invaluable readers.
"It is thus 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. 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. Indeed, this is recognized by Section 6 of the Jammu & Kashmir Constitution which states:
Permanent residents:-(1) Every person who is, or is deemed to be, a citizen of India under the provisions of the Constitution of India shall be a permanent resident of the State, if on the fourteenth day of May, 1954-
(a) he was a State Subject of Class I or of Class II; or
(b) having lawfully acquired immovable property in the State, he has been ordinarily resident in the State for not less than ten years prior to that date.
Any person who, before the fourteenth day of May, 1954, was a State Subject of Class I or of Class II and who having migrated after the first day of March, 1947, to the territory now included in Pakistan, returns to the State under a permit for resettlement in the State or for permanent return issued by or under the authority of any law made by the State Legislature shall on such return be a permanent resident of the State.
In this section, the expression "State Subject of Class I or of Class II" shall have the same meaning as in State Notification No. 1-L/84 dated the twentieth April, 1927, read with State Notification No. 13/L dated the twenty 7th June, 1932."
They are governed first by the Constitution of India and also by the Constitution of Jammu & Kashmir. This is made clear by Section 10 of the Jammu & Kashmir Constitution which states:
Rights of the permanent residents:- The permanent, residents of the State shall have all the rights guaranteed to them under the Constitution of India.
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.
Again it is wholly incorrect to refer to Entry 11A of List 3 and to state that since it is not extended to the State of Jammu & Kashmir, Parliament would have no legislative competence to enact Sections 17A and 18B of SARFAESI. There are at least three errors in this conclusion. First and foremost, it is not possible to dissect the provisions of SARFAESI and attach them to different Entries under different Lists. As has been held by us, the whole of SARFAESI is referable to Entry 45 and 95 of List I. Secondly, what has been missed by the impugned judgment is that Entry 95 List I is a source of legislative power for Parliament for conferring power and jurisdiction on the District Court and the High Court respectively in respect of matters contained in SARFAESI. And third, the subject "Administration of Justice" is only general and can be referred to only if Entry 95 List I read with Entry 45 List I are not attracted. We are afraid that despite the judgment in Narottamdas Jethabai and Jamshed Guzdar's case (supra), the High Court, even though it refers to Narottamdas Jethabai, has completely missed this crucial aspect. Most importantly, even if it is found that Section 140 of the Jammu & Kashmir Transfer of Property Act entitles only certain persons to purchase properties in the State of Jammu & Kashmir, yet, as has been held hereinabove, Rule 8(5) proviso which recognizes this provision, has been brushed aside. In any case an attempt has first to be made to harmonise Section 140 of the Jammu & Kashmir Transfer of Property Act with SARFAESI, and if such harmonization is impossible, it is clear that by virtue of Article 246 read with Section 5 of the Jammu & Kashmir Constitution, Section 140 of the Jammu & Kashmir Transfer of Property Act has to give way to SARFAESI, and not the other way around.
Reliance has also been placed on Article 35A of the Constitution as it applies to the State of Jammu & Kashmir. The said Article reads as follows:
35A. Saving of laws with respect to permanent residents and their rights- Notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu and Kashmir, and no law hereafter enacted by the Legislature of the State,-
(a) Defining the classes of persons who are, or shall be, permanent residents of the State of Jammu and Kashmir; or
(b) Conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions as respects-
(i) employment under the State Government;
(ii) acquisition of immovable property in the State;
(iii) settlement in the State; or
(iv) right to scholarships and such other forms of aid as the State Government may provide,
Shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provision of this Part."
We fail to understand how Article 35A carries the matter any further. This Article only states that the conferring on permanent residents of Jammu & Kashmir special rights and privileges regarding the acquisition of immovable property in the State cannot be challenged on the ground that it is inconsistent with the fundamental rights chapter of the Indian Constitution. The conferring of such rights and privileges as mentioned in Section 140 of the Jammu & Kashmir Transfer of Property Act is not the subject matter of challenge on the ground that it violates any fundamental right of the Constitution of India. Furthermore, in view of Rule 8(5) proviso, such rights are expressly preserved.
We find that the High Court judgment ultimately states:
It is held that the Union Parliament does not have legislative competence to make laws contained in section 13, section 17(A), section 18(B) section 34, 35 and section 36, so far as they relate to the State of J&K;
It is further held that in view of the aforesaid declaration, the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 cannot be enforced in the State of J&K;
It is further held that the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 can be availed of by the banks, which originate from the State of J&K for securing the monies which are due to them and which have been advanced to the borrowers, who are not State subjects and residents of the State of J&K and who are non State subjects/ non citizens of the State of J&K and residents of any other State of India excepting the State of J&K."
Having held that the provisions of SARFAESI cannot be applied to the State of Jammu & Kashmir, it is a contradiction in terms to state that SARFAESI can be availed of by banks which originate from the State of Jammu & Kashmir for securing monies which are due to them and which have been advanced to borrowers who are not the residents of the State of Jammu & Kashmir. We therefore set aside the judgment of the High Court. As a result, notices issued by banks in terms of Section 13 and other coercive methods taken under the said Section are valid and can be proceeded with further. The appeals are accordingly allowed with no order as to costs". It is indeed a landmark judgement and it undoubtedly paves way for closer constitutional and political integration of Jammu & Kashmir into India. It is only natural that separatists and half-separatists have joined hands against the ruling and the PDP-BJP coalition government. It is heartening that the PDP Law Minister Abdul Haq Khan has not opposed the judgement. Reasons are obvious. |
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