High Court
judgements - A significant development
The two rulings read and looked at together in their totality make it
clear that JK State constitutionally has a position of its own,
In a significant development last week JK State High Court
adjudicated on Article 370. Though the judgement is 370 specific, it could
affect judicial verdicts on a wide range of articles applicable to JK State,
including the all important Article 35 A. Divisional bench of State High Court,
including Justice Hasnain Massodi and Justice Janak Raj Kotwal ruled on several
articles affecting article 370. The judgment is wide ranging, we may, however,
focus on a part of it that could affect Article 35 A. The said article is
facing the onslaught of Sangh Parivar, a unit of which has made an appeal to
Supreme Court praying for ruling on Article 35 A. It is pleaded in the petition
that Article 35 A has not passed through a parliamentary process, hence its
application may not be constitutionally valid. The judgment of State High Court
on Article 370 and earlier on ‘Securitization and Reconstruction of Financial
Assets and Enforcement of Security Interest (SARFAESI) Act’ could have a
bearing on how the honourable courts view Article 35 A.
Justices
Hasnain Massodi and Justice Janak Raj Kotwal ruled that, 'President under
Article 370 (1) is conferred with power to extend any provision of the
Constitution to the State with such “exceptions and modifications” as he may
deem fit subject to consultation or concurrence with the State Government'. The
stress is on President having such a power in consultation or concurrence with
the State Government. The judicial verdict bypasses a parliamentary process,
while as in the plea to Supreme Court vis-à-vis Article 35 A, the stress is on
the parliamentary process. The divisional bench of JK State High Court on
powers of President in consultation with JK State government further ruled
that, “And such power would include one to amend or alter the provision
to be applied, delete or omit part of it, or make additions to the provisions
proposed to be applied to the State. Such power would extend even in case of
provisions of the Constitution already applied,”. The power thus is restricted
to the President in consultation and concurrence of JK Government. The plea in
Supreme Court praying for a parliamentary process may not hold, given the
significant High Court verdict.
The High Court verdict
further ruled on Article 368 Clause (2) that concerns the parliamentary process
in amendment of constitutional provisions, ''In the circumstances'' the court
held, ''additions made to the existing Constitutional provisions through
various Constitution (Application to Jammu and Kashmir) orders on their
application to the State like Proviso to Clause (2) Article 368, fall within
four corners of Article 370(1)''. While adjudicating on Clause (2) Article 368,
honourable High Court has ruled that in their application to the State like
Proviso to Clause (2) Article 368, fall within four corners of Article 370(1).
We may first look at what does Clause (2) Article 368 hold, it says, 'Any
amendment of this Constitution may be initiated only by the introduction of a
Bill for the purpose in either House of Parliament, and when the Bill is passed
in each House by a majority of the total membership of that House present and
voting, it shall be presented to the President who shall give his assent to the
Bill and thereupon the Constitution shall stand amended in accordance with the
terms of the Bill'. This falls within the parliamentary process, while as
Clause (1) Article 370 remains limited to Presidential order with the
consultation and concurrence of JK State Government.
We
may now look at the JK High Court ruling on ‘Securitization and Reconstruction
of Financial Assets and Enforcement of Security Interest (SARFAESI) Act’
enacted by Parliament in 2002 on which another division bench including Justice
Muzafar Hussain Attar and Justice Ali Muhammad Magrey provided the ruling,
earlier in this year. Honourable Court ruled that 'SARFAESI) Act’ cannot be
applicable to Jammu and Kashmir owing to its own constitutional position. The
landmark judgment followed barely days after Jammu Kashmir Study Center (JKSC)
close to RSS proposed to take call on Article 35 (A) pleading that it was
incorporated through a Presidential Order on May, the 14th 1954 bypassing
Parliament. High Court judgment cites Constitution of India and holds,
‘’Article 35 (A) which has been applied to State of J&K, clarifies the already
existing constitutional and legal position and does not extend something new to
state’’. Thus it clearly implies that the relationship stands already defined
as per provisions of Article 370. Article 35 (A) re-enforces it. Honourable
High Court further holds, ‘’the provision clears the constitutional
relationship between the 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
two rulings read and looked at together in their totality make it clear that JK
State constitutionally has a position of its own, which cannot be 'challenged,
altered or abridged' as per the JK High Court verdict. The judgment on Article
370 is causing political ripples. It is reported that Home Ministry in Delhi
has asked for a copy of the ruling, which adjudicated on sovereignty, which
exists in case of JK State albeit in a limited manner. This makes the judgment
a significant development.
Yaar Zinda, Sohbat Baqi [Reunion is subordinate to survival]
http://www.greaterkashmir.com/news/opinion/story/199108.html
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