Sovereignty of Jammu & Kashmir within Constitution of India: Supreme Court on J&K High Court order

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The J&K High Court, in its earlier order, asserted that the “sovereign character” of Jammu & Kashmir cannot be challenged or abridged.

New Delhi, Dec 17: Supreme Court of India has made critical observations regarding an earlier order of Jammu & Kashmir High Court, which asserted the state’s ‘sovereign’ character in a bold manner. The apex court made it clear that Jammu & Kashmir’s sovereignty lies within the Constitution of India. The top judiciary further remarked that J&K also extracts its sovereignty from the Constitution of Jammu & Kashmir. However, the latter lies subservient to the Constitution of India. Supreme Court mince no words to declare that citizens of Jammu & Kashmir are “Indians first”.
The bench of Justices Rohinton Nariman and Kurien Joseph reiterated that Jammu & Kashmir is an integral part of Union of India, and draw its rights in accordance to the quasi-federal structure of the polity, along with the exceptions granted to it under Constitution of India. The bench also made it clear that residents of Jammu & Kashmir, although being described as permanent citizens of J&K, would be considered as Indian citizens. They would not be granted dual citizenship, as mandated in certain federal polities across the world.

“It is clear that 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… they (residents of state) are governed first by the Constitution of India and also by the Constitution of Jammu & Kashmir,” the bench was quoted as saying by The Indian Express.

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The J&K High Court, in its earlier order, asserted that the “sovereign character” of Jammu & Kashmir cannot be challenged or abridged. The HC bench of Justices Muzaffar Hussain Attar and Ali Mohammad Magrey cited Article 35 (A) of the constitution to validate their point. Article 35 (A), along with Article 370, preserves the special status of Jammu & Kashmir, and prevents non-permanent citizens (those residing outside J&K) from buying properties in the state.

State Bank of India (SBI), country’s biggest lender, raised apprehensions and moved the Supreme Court. Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act), which is used by SBI to attach properties of defaulters, contradicts the special status granted to Jammu & Kashmir.