Legal view about the alleged sovereignity of the Constitution of J&K
Justice G?D Sharma
Many Kashmir valley based politicians are often heard making irresponsible statements to corner their vote banks at the cost of national security that state of Jammu & Kashmir has separate identity as it has separate constitution. Such political utterances got the seal of the state High court in the Division Bench ruling given on 16-07-2015 in the case titled Santosh Gupta and anothers etc. Versus The State Bank of India and others.
In this judgment it was held that various key provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002 (herein and after referred as “SARFAESI”) were outside the legislative competence of Parliament, as they would collide with Section 140 of the Transfer of Property Act of Jammu & Kashmir.
The said central Act has been held to be inapplicable to Banks such as the State Bank of India which are all Indian Banks.
Aggrieved by this judgement State Bank of India filed civil appeal in the Supreme Court which was accepted on December 16, 2016 by the Division Bench comprising of Hon’ble Justice Kurian Joseph and Hon’ble Justice R F Nariman. In the judgement the Supreme Court has held that the approach of the state High Court was not in consonance with the established law enshrined in the Indian Constitution as well as in the J&K State Constitution.
In para no 40 of its judgement the Supreme Court has held, “The High Court judgement begins from the wrong end and therefore
reaches the wrong conclusion.” Furtheremore in para no 41 it is held, “It is rather disturbing to note that various parts of the judgment speak of the absolute sovereign power of the State of J&K which is contrary to the relevant provisions of Indian Constitution. It is Indian Constitution which is only
sovereign and the J&K State Constitution is subordinate to it.” In order to buttress its view the Supreme Court has referred to the preamble of the State Constitution which in clear terms recites that we, the people of the State of J&K, having solemnly resolved, in pursuance of the Accession of this State to India which took place on October 26, 1947 to further define the existing
relationship of the state with the union of India as an integral part thereof. There is no reference to Sovereignty in the State Constitution.
It is also relevant that the Supreme Court has reminded the State High Court that the residents of J&K State are the first and foremost citizens of India. Indeed it is recognised by Section 6 of the J&K Constitution also. Section 3 and Section 147 of the J&K Constitution impose bar to
introduce any Bill in the State Legislature having a bearing on the Accession made by Maharaja of the State with Union of India.
The Supreme Court in its Judgement has referred to Entries 45 and 95 of List 1 of the Constitution which clothe Parliament with exclusive power to make laws with respect to Banking, and the entirety of SARFAESI can be said to be referable to Entry 45 and 95 of List 1, 7th Schedule to the Constitution of India. This being the case, Section 5 of the Jammu & Kashmir Constitution will only operate in areas in which Parliament has no power to make laws for the State.
Thus, 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 by virtue of Article 246 of the Constitution of India as extended to the State of Jammu and Kashmir, read with Section 5 of the Constitution of Jammu & Kashmir. At the end it is held, “This being the case, it is clear that Sections 13(1) and (4) cannot be held to be beyond the legislative
competence of Parliament as have wrongly been held by the High Court.”
While concluding it is appropriate to state here that prior to the passing of the Indian Independence Act 1947 the sovereignity of Maharaja Hari Singh was over the State of J&K
comprising of five Regions. Of course, it was subject to such
limitations as were constitutionly imposed on it by the Paramountcy of the British Crown and by the Treaties and Aggrements entered.
For internal administration and
governance like his predecessors he was an absolute monarch and all
powers Legislative, Executive and Judicial in relation to his state and
governance inherently vested in him. After independence Maharaja Hari Singh like other Rulers of the country whose Rule covered about 47 per cent of the total area of the undivided India had acquired the status of a sovereign and independent Monarch. Like other Rulers Maharaja Hari Singh had
acceded his State with Indian Dominion and it cannot be said by any stretch of imagination that the State of Jammu & Kashmir is still sovereign as it has separate Constitution.
(The writer is former Judge of Jammu & Kashmir High Court)