The bench 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.
Snubbing the Jammu and Kashmir High Court for asserting the state’s “sovereignty” and “sovereign powers”, the Supreme Court Friday said J&K “has no vestige of sovereignty outside the Constitution of India”. A bench of Justices Kurian Joseph and Rohinton Nariman also rejected the J&K High Court’s view that the J&K Constitution was equal to the Constitution of India.
“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.
The bench 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 bench 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 top court pointed out that it was constrained to observe these because in at least three places, the High Court, in its judgment, “has gone out of its way to refer to a sovereignty which does not exist”.
Underlining that the quasi-federal structure of the Constitution of India continues even with respect to J&K, the bench 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.” It said the J&K Constitution has been made to further define the existing relationship of the state with 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 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 had said that the state has absolute sovereign power to legislate in respect of laws touching the rights of its permanent residents qua their immovable properties.
After the State Bank of India appealed against the High Court order, the J&K government submitted in the Supreme Court that this law encroached upon the property rights of permanent residents of the state and must be read down so that it will not be permissible to sell property belonging to a permanent resident of the state to outsiders. It was also argued that Parliamentary legislation would need concurrence of the J&K government before it could apply to the state under Article 370.
But the Supreme Court bench shot down these arguments, saying SARFAESI Act deals with recovery of debts due to banks and financial institutions, which is relatable to a subject under the Union List and parliamentary legislation did not require concurrence of the state government since the Centre had power to make law on this subject.
“Entries 45 and 95 of List I clothe Parliament with exclusive power to make laws with respect to banking… the Act as a whole would necessarily operate in the state,” the bench said, adding that the SARFAESI Act had itself made a special provision for sale of properties in J&K.
The bench, however, made it clear that any provision of the J&K Transfer of Property Act will have to give way to the central law in case the former is found repugnant. “It is clear that anything that comes in the way of SARFAESI by way of a Jammu & Kashmir law must necessarily give way to the said law,” it said, adding that its judgement had no effect on Article 35A, which confers on permanent residents of J&K special rights and privileges regarding acquisition of immovable property in the state.
Courtesy: The Indian Express
In the video below, Christine Fair, Associate professor at the Center for Peace and Security Studies (CPASS) asks a Pro-Pakistani “scholar” to get his facts right on the UN Resolution Kashmir.
While we taking the issue to the United Nations itself was a folly committed by Nehru, it is also worthwhile to note what the UN resolution on state of Jammu & Kashmir was all about.
It clearly states that Pakistan was to vacate its troops from the whole of the state.
It also mentions, albeit indirectly, that Pakistan had consistently lied on the question of whether or not its troops were involved in the fighting in Jammu & Kashmir. Once the then Pakistani Prime Minister conceded that Pakistani troops were indeed involved, the UN had no option but to ask for their withdrawal. That the withdrawal never took place, is another story.
The United Nations Commission for India and Pakistan
Having given careful consideration to the points of view expressed by the representatives of India and Pakistan regarding the situation in the State of Jammu and Kashmir; and
Being of the opinion that the prompt cessation of hostilities and the correction of conditions the continuance of which is likely to endanger international peace and security are essential to implementation of its endeavors to assist the Governments of India and Pakistan in effecting a final settlement of the situation;
Resolves to submit simultaneously to the Governments of India and Pakistan the following proposal:
PART I: CEASE-FIRE ORDER
A. The Governments of India and Pakistan agree that their respective High Commands will issue separately and simultaneously a cease-fire order to apply to all forces under their control and in the State of Jammu and Kashmir as of the earliest practicable date or dates to be mutually agreed upon within four days after these proposals have been accepted by both Governments.
B.The High Commands of the Indian and Pakistani forces agree to refrain from taking any measures that might augment the military potential of the forces under their control in the State of Jammu and Kashmir. ( For the purpose of these proposals forces under their control shall be considered to include all forces, organized and unorganized, fighting or participating in hostilities on their respective sides.
C.The Commanders-in-Chief of the forces of India and Pakistan shall promptly confer regarding any necessary local changes in present dispositions which may facilitate the cease-fire.
D. In its discretion and as the Commission may find practicable, the Commission will appoint military observers who, under the authority of the Commission and with the co-operation of both Commands, will supervise the observance of the cease-fire order.
E. The Government of India and the Government of Pakistan agree to appeal to their respective peoples to assist in creating and maintaining an atmosphere favourable to the promotion of further negotiations.
PART II: TRUCE AGREEMENT
Simultaneously with the acceptance of the proposal for the immediate cessation of hostilities as outlined in Part I, both the Governments accept the following principles as a basis for the formulation of a truce agreement, the details of which shall be worked out in discussion between their representatives and the Commission.
1. As the presence of troops of Pakistan in the territory of the State of Jammu and Kashmir constitutes a material change in the situation since it was represented by the Government of Pakistan before the Security Council, the Government of Pakistan agrees to withdraw its troops from that State.
2. The Government of Pakistan will use its best endeavour to secure the withdrawal from the State of Jammu and Kashmir of tribesmen and Pakistani nationals not normally resident therein who have entered the State for the purpose of fighting.
3. Pending a final solution, the territory evacuated by the Pakistani troops will be administered by the local authorities under the surveillance of the commission.
1.When the commission shall have notified the Government of India that the tribesmen and Pakistani nationals referred to in Part II, A, 2, hereof have withdrawn, thereby terminating the situation which was represented by the Government of India to the Security Council as having occasioned the presence of Indian forces in the State of Jammu and Kashmir, and further, that the Pakistani forces are being withdrawn from the State of Jammu and Kashmir, the Government of India agrees to begin to withdraw the bulk of its forces from that State in stages to be agreed upon with the Commission.
2. Pending the acceptance of the conditions for a final settlement of the situation in the State of Jammu and Kashmir, the Indian Government will maintain within the lines existing at the moment of the cease-fire the minimum strength of its forces which in agreement with the commission are considered necessary to assist local authorities in the observance of law and order. The Commission will have observers stationed where it deems necessary.
3. The Government of India will undertake to ensure that the Government of the State of Jammu and Kashmir will take all measures within its powers to make it publicly known that peace, law and order will be safeguarded and that all human political rights will be granted.
4. Upon signature, the full text of the truce agreement or a communique containing the principles thereof as agreed upon between the two Governments and the Commission, will be made public.
The Government of India and the Government of Pakistan reaffirm their wish that the future status of the State of Jammu and Kashmir shall be determined in accordance with the will of the people and to that end, upon acceptance of the truce agreement, both Governments agree to enter into consultations with the Commission to determine fair and equitable conditions whereby such free expression will be assured.
Source: United Nations
Our Kashmir – A book summary
The citation for the Param Vir Chakra awarded to Bana Singh reads :
NB SUB BANA SINGH
8 JAK LI (JC-155825)
“Naib Subedar Bana Singh volunteered to be a member of a task force constituted in June 1987 to clear an intrusion by an adversary in the Siachen Glacier area at an altitude of 21,000 feet. The post was virtually an impregnable glacier fortress with ice walls, 1500 feet high, on both sides. Naib Subedar Bana Singh led his men through an extremely difficult and hazardous route. He inspired them by his indomitable courage and leadership. The brave Naib Subedar and his men crawled and closed in on the adversary. Moving from trench to trench, lobbing hand grenades, and charging with the bayonet, he cleared the post all intruders.
Nb Subedar Bana Singh displayed the most conspicuous gallantry and leadership under the most adverse conditions”
…… and yet, we can see the apathy of the J&K government in honouring a Hero.
In an interview to Claude Arpi,
CA: I understand that you had a good offer from the Punjab Government?
BanaSingh : The Punjab Government has a deep respect for the Indian Army. They have offered me Rs 25 lakhs and a monthly allowance of Rs 15,000 and a 25 acre plot if I accept to move to Punjab. But I refused.
BS: Because I consider myself a State Subject of Jammu and Kashmir. My own State gives me Rs 160/month only as an allowance for having won the Param Vir Chakra, the highest bravery award. It is the way we are treated in Jammu and Kashmir.