J-K’s special status cannot be challenged or altered: HC

SRINAGAR: In a landmark judgment aimed at safeguarding the special status enjoyed by Jammu and Kashmir under Article 370, the J&K High Court has said the constitution of the state was “sovereign in character” and the state Assembly exercises sovereign power to legislate laws.

Ishfaq Tantry

Tribune News Service

Srinagar, July 17

In a landmark judgment aimed at safeguarding the special status enjoyed by Jammu and Kashmir under Article 370, the J&K High Court has said the constitution of the state was “sovereign in character” and the state Assembly exercises sovereign power to legislate laws.

It said Article 35(A) of the Indian Constitution clarifies the already existing constitutional and legal position and did not extend something new to the state. The court further said the “sovereign character” of the state cannot be “challenged” or “abridged”.

The ruling assumes importance in the backdrop of repeated assertions by the BJP to revoke Article 370 and the planned move by RSS-backed think tank, Jammu & Kashmir Study Centre, to challenge the constitutional validity of Article 35A, an outgrowth powered by Article 370 of the Indian Constitution which bars non-residents of J&K from buying land or property in the state.

The act, being viewed as unconstitutional by the right-wing groups, also bars non-residents from getting a government job or voting rights in the Assembly elections.

“Entry 45 of List (I) of Schedule 7th of Constitution of India has been extended to the state of J&K in accordance with the mechanism and procedure prescribed by Article 370. The Parliament has, thus, power to legislate laws in respect of banking,” a Division Bench of Justice Muzaffar Hussain Attar and Justice Ali Mohammad Magrey said in a 76 page judgment in a bunch of petitions challenging applicability of “Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002”, in J&K state, which was passed by the Parliament in 2002.

The court said the 2002 Act, which empowers banks and financial institutions to recover their non-performing assets without the intervention of the court, cannot be made applicable to J&K.

“The Parliament, however, has no power to legislate law about the subject administration of justice, the land and the other immovable properties in J&K,” it added.

It said the laws made by the Maharaja (of J&K) were protected by the Constitution of 1939 AD and the subsequent Constitution framed by the Constituent Assembly of J&K, which includes protection given to the state subjects and non transferring of immovable properties to non state subjects.

The court said Article 35(A) was “clarificatory provision” to clear the issue of constitutional position obtaining in the rest of country in contrast to the state of J&K. “This provision clears the constitutional relationship between people of rest of country with people of J&K,” it said while upholding the special status of J&K under Article 370.

“The power of Parliament to make laws in respect of J&K is circumscribed and it can make laws for the state only where permitted by the state and not otherwise,” the court said. “That too in accordance with mechanism prescribed by Article 370 of Constitution of India,” it added.