New Delhi: Jammu and Kashmir has “no vestige” of sovereignty outside the Indian Constitution and its own, while the citizens of the state are “first and foremost” citizens of India, the Supreme Court has held.
The apex court observed this while terming as “wholly incorrect” the conclusion arrived at by Jammu and Kashmir High Court which had held that the state has “absolute sovereign power” to legislate laws touching the rights of its permanent residents regarding their immovable properties.
“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,” a bench of Justices Kurian Joseph and R F Nariman said.
“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,” it said.
The apex court said this while holding that provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) are within the legislative competence of Parliament and can be enforced in Jammu and Kashmir.
The bench set aside the verdict of Jammu and Kashmir High Court that had held that any law made by Parliament, which affects the laws made by state legislature, cannot be extended to Jammu and Kashmir.
“The High Court judgment begins from the wrong end and therefore reaches the wrong conclusion. It states that in terms of Section 5 of the Constitution of Jammu & Kashmir, the State has absolute sovereign power to legislate in respect of laws touching the rights of its permanent residents qua their immovable properties,” the apex court said.
It further said, “We may also add that permanent residents of Jammu & Kashmir are citizens of India, and there is no dual citizenship as is contemplated by some other federal Constitutions in other parts of the world”.
The apex court judgement came on the appeal by State Bank of India (SBI) against the high court verdict which had held that the The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI) Act would collide with the Transfer of Property Act of Jammu & Kashmir, 1920.
SARFAESI is an enactment which entitles banks to enforce their security interest outside the court process to take possession of secured assets of the borrower and sell them outside the court process.
The apex court, in its 61-page verdict, also said it was “disturbing to note that various parts of High Court judgment speak of the absolute sovereign power of Jammu & Kashmir.”
“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,” it said.
The apex court, while setting aside the high court order, held that provisions of the SARFAESI Act can be applied to Jammu and Kashmir.
“We therefore set aside the judgment of the High Court. As a result, notices issued by banks in terms of Section 13 (Enforcement of security interest) and other coercive methods taken under the said Section are valid and can be proceeded with further,” the bench said. The High Court had held the Act was inapplicable for banks like the SBI which are Indian banks.
First Published On : Dec 17, 2016 18:46 IST
Sun, 6 Nov 2016-11:35am , New Delhi , ANI
<!– /11440465/Dna_Article_Middle_300x250_BTF –>Urging the Jammu and Kashmir government to stop the burning of schools in the state, the Bharatiya Janata party (BJP) on Sunday said these acts of arson were a clear attempt to ensure the presence of students at anti-government protests. BJP leader and spokesman GVL Narsimha Rao told ANI, “This is clearly an attempt to scare away children and youth and to ensure that they are available to protest. The state government and local authorities are dealing with this issue on a high priority and we hope this problem of law and order will be put to rest quickly.”The Centre had last week asked the Mehbooba Mufti-led state government to check such attempts and make efforts for the reopening of schools which have been closed since July 9. As many as 31 schools and 110 government buildings have been damaged in the Kashmir Valley since the current unrest began nearly four months ago.The Jammu and Kashmir High Court has taken suo motu cognisance of this development and asked the state government to take steps to prevent such incidents and “unmask” the culprits.
<!– /11440465/Dna_Article_Middle_300x250_BTF –>Another school was set on fire in Bandipora district of Jammu and Kashmir on Saturday. The flames have been doused, reports ANI.As many as 31 schools and 110 government buildings have been damaged in Kashmir Valley since the current unrest began four months ago.Among the schools, which were set ablaze by unknown persons, 25 were government-run, two private and four were run by trusts or other social organisations, official sources told PTI.Out of the 110 government buildings, 65 were either completely gutted or partially burnt down and 55 were damaged through “other means”.Over the past few months, miscreants burnt down schools across the Valley which is in the grip of unrest following the killing of militant commander Burhan Wani in an encounter on July 8.Amid outrage over the issue, the Jammu and Kashmir High Court took suo motu cognisance of this development and asked the state government to take steps to prevent such incidents and “unmask” to culprits.The Centre had also earlier this week asked the Mehbooba Mufti government to check such attempts and make efforts for reopening the schools which have been closed since July 9.With ANI/PTI inputs.
<!– /11440465/Dna_Article_Middle_300x250_BTF –>Chief Justice of India T S Thakur on Thursday underwent a check-up at a heart hospital in south Delhi. Hospital sources, however, said, “he was fine and it was just a routine check-up.”64-year-old Thakur did not attend court on Thursday. “The CJI visited the hospital earlier in the day. He has been coming to Fortis Escorts Heart Institute for medical check-ups for the past couple of years, and today’s visit was also a regular visit. He is doing fine and has returned home. There is nothing to worry about,” a source said.Thakur is the 43rd Chief Justice of India and due to to retire on January 4, 2017.Born in 1952, he was enrolled as a pleader in October, 1972 and joined the chamber of his father Late D D Thakur, a leading advocate and later a judge of Jammu and Kashmir High Court.Thakur was appointed as a permanent judge in September, 1995 and transferred as a judge of the High Court of Delhi in July 2004.He was appointed as the Acting Chief Justice of Delhi High Court in 2008 and took over as Chief Justice of the High Court of Punjab and Haryana on August 11, 2008.Elevated as a judge of Supreme Court in 2009, he was appointed as the Chief Justice of India on December 3, 2015.
At the centre of the protests in Handwara sparked by the molestation of a young school girl, the Jammu and Kashmir High Court directed the police superintendent to allow the minor to meet her mother and lawyers.
Protests erupted in Handwara town after allegations of molestation by an Army solider on 12 April, two people died and a women was hit by a bullet. However, the case has taken on different turns since then. Initially, an army personnel was accussed of molesting the girl, however in her video statements to the police and the chief judicial magistrate under Section 164-A of CrPC, she absolved the armyman of any wrongdoing.
The girl named, Hilal Ahmed Bandey as one of the persons who molested her after she she came out of a public restroom. In her statement before the Judicial Magistrate, she said that on 12 April, after school hours, while proceeding to her home with her friend, she entered in a public lavatory near main chowk in Handwara — “As soon as she came out of lavatory she was confronted, assaulted and dragged by two boys and her bag was snatched. One of the boys was in school uniform. The production of the girl along with her father before the Chief Judicial Magistrate, Handwara was to comply with the order of the Jammu and Kashmir High Court,” police had said.
According to The Hindustan Times, the girl was being kept in “illegal police custody”and a Habeas Corpus writ was heard by the High Court. A statement by the Jammu and Kashmir Coalition of Civil Societies (JKCCS) quoted in the paper reads, “The consequence of today’s proceedings is six more days of illegal police custody for the Handwara minor girl. But, the direction to SP Ghulam Jeelani Wani will ensure that for the first time since being detained the minor girl and family will have unhindered access to legal counsel.”
The girl’s counsel claims that her statements to the police and CJM were not made voluntarily. He said the girl, who did not blame any army personnel for molestation as alleged earlier, had been pressured to testify in a manner directed by the police. He said the girl’s statement before the chief judicial magistrate, Handwara on Sunday was recorded in the absence of her father and her lawyers. “The minor girl’s statement under Section 164-A CrPC was recorded before the judicial magistrate at Handwara.
Her father was not present in court during the recording of the statement. No lawyer was present in court accompanying her. “In the courtroom, besides the judge, there were four other persons who the minor girl could not identify,” the spokesman said. JKCSS also maintains that the girl was being kept in detention illegally, in a “jungle-like place.”
The JKCCS has also written to Chief Minister Mehbooba Mufti, director-general of Jammu and Kashmir Police, IGP Kashmir, DIG North Kashmir, divisional commissioner Kashmir and DC Kupwara for “unhindered access of the legal counsels to the family”.
But, so far, “the government has chosen to not respond,” he said.
With inputs from PTI