Tag Archives: Supreme Court

No Sovereignty For J-K Outside Constitution of India – Supreme Court

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

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Aamir Khan Supports Medha Patkar – Supreme Court Warns Medha

New Delhi, Sept 30: It can be a major setback for social activist Medha Patkar and her NGO which led the Narmada Bachao Andolan (NBA) agitation in Madhya Pradesh. The apex court on Thursday, Sept 29 refused to withdraw its scathing remarks against Patkar’s NGO. Citing the court’s decision, many started questioning – is not it a slap on Bollywood actor Aamir Khan who actively participated in the protest.

Announcing its decision, the court on Thursday claimed that the NGO, headed by Patkar, acted irresponsibly while accusing the state government of wrongfully grabbing land for the Omkareshwar dam.

Upholding the state government’s plea, the apex court in May 2011 had charged Patkar’s NGO over “misrepresentation”. Citing the affidavit filed by NBA, the court also made caustic remarks against Patkar and her group.

However, NBA moved the court following the remarks requesting to remove the remarks. The court, defending its stand, said, “We modify our order to the extent that from the facts on record the inescapable conclusion is that the NBA has not acted with a sense of responsibility.”

The court, however, claimed, “We direct that in future if any case is presented to the court by NBA, it may be treated with caution and care. As in the given case, where the NBA filed an affidavit accusing the state of wrongfully acquiring 284 hectares of land, which on spot inquiry was proved wrong.”

http://news.oneindia.in/2011/09/30/narmada-bachao-andolan-sc-slaps-medha-patkar-aamir-khan.html

Supreme Court Judges Insults Hindus by referring Radha-Krishna as premarital sex partners

Insulting Hindu religious belief by a reference to Radha-Krishna

An open letter to all citizens of Bharat,

Appended is a report on the Supreme Court’s decision on pre-marital sex.

We take exception to the obiter dicta of the Court reported in the media. “Drawing an analogy from the Hindu mythology, the court said, even Lord Krishna and Radha lived together.”

It is shocking that such a statement should have reportedly been made by the learned judge(s). It is shocking because it shows a gross ignorance about Hindu traditions and Hindu history.

First of all, the reality of Krishna is established by the Itihaasa Mahabharata text and the astronomical reference contained in the text. Hence, Krishna is NOT mythology.

It is absurd to refer to the episode of Radha-Krishna in the context of a case related to pre-marital sex. Sri Krishna, Bala Krishna was only 10 years of age when he left Brindavan for the Gurukulam in Sandeepani Ashram. The episode of Radha-Krishna occurred when Sri Bala Krishna was a child 10 years of age.

Bhagavata Purana, does NOT refer to Radha by name but is alluded to within the tenth chapter of the text as one of the gopis whom Krishna plays with during his upbringing as a young boy. Krishna left Vrindavan for Mathura at the age of 10 years and 7 months according to Bhagavata Purana . So Radha is assumed to be a child of about 10 years or less, when Krishna left Vrindavan. http://www.vedabase .net/sb/10/ 45/3/en

I suggest that Bhagavata Purana together with the works of Savant Nimbarka, a vaishnava acharya, should be made essential reading for all constitutional functionaries.
After his education in Sandeepani Ashram, Shri Krishna never returned to Brindavan. He went to Mathura.

What is wrong with our educational system that even learned judges should refer to a seven-year old Shri Krishna and his being a darling of humanity and who enthralled Radha and other Gopikas has NOTHING to do with pre-marital sex since he was in Brindavan only until he was seven years of age.

Is a mother’s affection to a child considered pre-marital sex? Is the adoration by elders of an avatara considered pre-marital sex?

Maybe, there should be a law requiring minimum education in Hindu history and cultural traditions of avatara purusha like Shri Rama and Shri Krishna to all constitutional functionaries.

In this context, it is apposite to recall the words of Justice ASP Iyer who was Justice of Madras High Court. Justice A.S.P Iyer I.C.S (1899-1963) in his book, ‘Sri Krishna – The Darling of Humanity’, says: “Alexander the Great once asked a Brahmin scholar in the 4th century BC. “How can we know a man to be God?” and the scholar replied “When he does what no man can ever do.” To illustrate this divine point, I would refer to how Krishna saved the chastity, dignity and honour of Draupadi at the Royal Court of Hastinapura.
Does a seven year old darling of Brindavan become an example of pre-marital sex in jurisprudence?

Something is amiss here. I hope there will be an apology to all Hindus whose sentiments have been deeply hurt (cf. Section 295A of IPC) by the unwarranted reference to Radha-Krishna as an analogy of pre-marital sexual relationship.

Dhanyavaadah.

Dr. S. Kalyanaraman

Section 295A. Deliberate and malicious acts, intended to outrage religious feelings or any class by insulting its religion or religious beliefs
1[295A. Deliberate and malicious acts, intended to outrage religious feelings or any class by insulting its religion or religious beliefs.
Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of 2[citizens of India], 3[by words, either spoken or written, or by signs or by visible representations or otherwise], insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to 4[three years], or with fine, or with both.]

1. Ins. by Act 25 of 1927, s. 2.

2. Subs. by the A.O. 1950, for “His Majesty’s subjects”.

3. Subs. by Act 41 of 1961, s. 3, for certain words (w.e.f. 27-9-1961)

4. Subs. by Act 41 of 1961, s. 3, for “two years” (w.e.f. 27-9-1961)

Live-in, pre-marital sex no offence: SC
24 Mar 2010, 0541 hrs IST, ET Bureau

NEW DELHI: There is good news for the votaries of the live-in partners. The Supreme Court on Tuesday observed that the live-in relationships between the adult couples cannot be treated as an offence.

“When two adult people want to live together what is the offence. Does it amount to an offence? Living together is not an offence. It cannot be an offence,” said a bench comprising Chief Justice K G Balakrishnan, Justice Deepak Verma and Justice B S Chauhan.

Drawing an analogy from the Hindu mythology, the court said, even Lord Krishna and Radha lived together.

The apex court said there was no law which prohibits live-in relationship or pre-marital sex.

The bench passed the observation while reserving its judgement on a special leave petition filed by noted south Indian actress Khushboo. She had approached the apex court seeking quashing of about 22 criminal cases filed against her after she allegedly endorsed pre-marital sex in interviews to various magazines in 2005.

While hearing the case, the judges grilled the counsel for some of the complainants in the case and repeatedly stressed that the perceived immoral activities cannot be branded as offence.

The argument of the counsel was that her comments allegedly endorsing pre-marital sex would adversely affect the minds of young people leading to decay in moral values and ethos of the country.

“Please tell us what is the offence and under which section. Living together is a right to life,” remarked the court. apparently referring to Article 21 of the Constitution relating to right to life and liberty. The apex court further said the views expressed by Khushboo were personal.

“How does it concern you. We are not bothered. At the most it is a personal view. How is it an offence? Under which provision of the law?” the bench asked the counsel.

The apex court further asked the complainants to produce evidence to show if any girls eloped from their homes after the said interview.

“How many homes have been affected can you tell us,” court asked while enquiring whether the complainants had daughters. When the response was in the negative, they shot back, “Then, how are you adversely affected”?

Khushboo had approached the apex court after the Madrash High Court in 2008 dismissed her plea for quashing the criminal cases filed against her through out Tamil Nadu.

http://economictime s.indiatimes. com/articleshow/ 5717877.cms? prtpage=1