Stating that the Jammu and Kashmir Constitution is sovereign in character and the state Assembly exercises sovereign power to legislate laws, the Jammu and Kashmir High Court in a landmark judgment has said that Article 35(A) of the Constitution clarifies the already existing constitutional and legal position and does not extend something new to the State.The court added that citizens of Jammu and Kashmir have their own Constitution and sovereign character which cannot be challenged, altered or abridged.The court said this in a judgment on multiple petitions about the applicability of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI) in Jammu and Kashmir, which empowers banks and financial institutions to recover their non-performing assets without the intervention of the court.The court has ruled that provisions of the SARFAESI Act, passed by Parliament, could not be extended to the state of Jammu and Kashmir as the state Assembly exercises sovereign power to legislate.The ruling by the Jammu and Kashmir High Court assumes importance as an RSS-backed think-tank, Jammu and Kashmir Study Centre, is planning to challenge the constitutional validity of Article 35A, which bars non-residents of Jammu and Kashmir from buying land or property in the state. The Act, which the group says is unconstitutional, also bars non-residents from getting a government job or voting in the Jammu and Kashmir Assembly elections.“Entry 45 of List (I) of Schedule 7th of the Constitution of India has been extended to the state of Jammu and Kashmir in accordance with the mechanism and procedure prescribed by Article 370. 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 an exhaustive 76-page judgment delivered in ‘Bhupinder Singh Sodhi and others versus Union of India and Santosh Gupta versus Union of India and others’ case.“Parliament, however, has no power to legislate law about the subject administration of justice, the land and the other immoveable properties,” the court ruled.“Article 35(A) is 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”, the High Court ruled while upholding the special status of J&K under Article 370.”The court added that the sovereign character enjoyed by the people of J&K state “cannot be challenged, altered or abridgedThe High Court further said the power of Parliament to make laws in respect of Jammu and Kashmir is circumscribed and it can make laws for it only where permitted by the state and not otherwise.“That too in accordance with mechanism prescribed by Article 370 of Constitution of India”, the High Court further added.
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