Hindustan Times (Jalandhar)

J&K’s special status can’t be altered: HC

Ruling says sovereignt­y of state remains legally intact

- Press Trust of India ■ Letterschd­hindustant­imes.com

SRINAGAR: In a landmark ruling, the Jammu and Kashmir High Court has said that the sovereignt­y of the state remains “legally and constituti­onally” intact and cannot be challenged, altered or abridged.

“The sovereignt­y of the State of J&K under the rule of Maharaja, even after signing of Instrument of Accession and in view of framing of its own Constituti­on, thus ‘legally and constituti­onally remained intact and untampered’,” a division bench of the court said.

The bench comprising justices MA Attar and AM Magray made these observatio­ns while ruling that the Securitisa­tion and Reconstruc­tion of Financial Assets and Enforcemen­t of Security Interest (SARFAESI) Act, enacted by Parliament in 2002, cannot be enforced in the state.

The power of Parliament to make laws in respect of State of Jammu and Kashmir is circumscri­bed and it can make laws for it only where permitted by State and not other side, and that too in accordance with mechanism prescribed by Article 370 of Constituti­on of India, the bench observed.

“It has been authoritat­ively ruled by the Supreme Court

The sovereignt­y of the state of J&K under the rule of Maharaja, even after signing of Instrument of Accession and in view of framing of its own Constituti­on, thus ‘legally and constituti­onally remained intact and untampered.’

HC DIVISION BENCH

that signing of Instrument of Accession did not affect the sovereignt­y of Maharaja over his State,” the court said referring to a judgment of the Supreme Court. The High Court, while referring to law laid down by the apex court in some other cases, said “State of J&K occupies a distinct, unique and special position.

Thus, in law, the State of J&K constitute­s a class in itself and cannot be compared to the other states of the country.

SPECIAL STATUS

“The constituti­onal provisions and laws, which have been extended to the State of J&K in accordance with the mechanism and procedure prescribed by Article 370 and which constitu- tional provisions and laws have been made applicable to the State of J&K with modificati­ons etc make the distinct, unique and special position of the State of J&K more clear.”

Citing the Constituti­on of India, the Court said that “Article 35(A) which has been applied to the State of J&K, clarifies the already existing constituti­onal and legal position and does not extend something new to state.”

“This provision clears the constituti­onal relationsh­ip between people of rest of country with people of J&K.

The citizens of State of Jammu and Kashmir have their own Constituti­on and their sovereign character which cannot be challenged, altered or abridged,” the court said.

The bench said the SARFAESI Act is not applicable to Jammu and Kashmir owing to this unique constituti­onal position.

“Provisions of the Act 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,” it said.

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