(Greater Kashmir) HC 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]

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