Supreme Court rejects HC ruling: No sovereignty for J-K outside Constitution of India

Snubbing the Jammu and Kashmir High Court for asserting the state’s “sovereignty” and “sovereign powers”, the Supreme Court Friday said J&K “has no vestige of sovereignty outside the Constitution of India”. A bench of Justices Kurian Joseph and Rohinton Nariman also rejected the J&K High Court’s view that the J&K Constitution was equal to the Constitution of India.

“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 said, referring to the preamble of the Constitution of J&K, 1957.

The bench called it “disturbing” that various parts of a judgment in appeal by the J&K High Court spoke of the absolute sovereign power of the state. “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,” the judges said.

The bench also clarified that J&K residents are “first and foremost” Indian citizens. “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… permanent residents of the state of J&K are citizens of India, and that there is no dual citizenship as is contemplated by some other federal Constitutions in other parts of the world,” it said.

The top court pointed out that it was constrained to observe these because in at least three places, the High Court, in its judgment, “has gone out of its way to refer to a sovereignty which does not exist”.

Underlining that the quasi-federal structure of the Constitution of India continues even with respect to J&K, the bench said: “Article 1 of the Constitution of India and Section 3 of the Jammu & Kashmir Constitution make it clear that India shall be a Union of States, and that the State of Jammu & Kashmir is and shall be an integral part of the Union of India.” It said the J&K Constitution has been made to further define the existing relationship of the state with the Union of India as an integral part thereof.

The court said this while deciding a legal question on whether the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) will be applicable to J&K or the law was outside the legislative competence of Parliament since its provisions would collide with Section 140 of the Transfer of Property Act of J&K.

SARFAESI Act entitles banks to enforce their security interest outside the court’s process by moving a tribunal to take possession of secured assets of the borrower and sell them outside the court process. The High Court had said that the state has absolute sovereign power to legislate in respect of laws touching the rights of its permanent residents qua their immovable properties.

After the State Bank of India appealed against the High Court order, the J&K government submitted in the Supreme Court that this law encroached upon the property rights of permanent residents of the state and must be read down so that it will not be permissible to sell property belonging to a permanent resident of the state to outsiders. It was also argued that Parliamentary legislation would need concurrence of the J&K government before it could apply to the state under Article 370.

But the Supreme Court bench shot down these arguments, saying SARFAESI Act deals with recovery of debts due to banks and financial institutions, which is relatable to a subject under the Union List and parliamentary legislation did not require concurrence of the state government since the Centre had power to make law on this subject.

“Entries 45 and 95 of List I clothe Parliament with exclusive power to make laws with respect to banking… the Act as a whole would necessarily operate in the state,” the bench said, adding that the SARFAESI Act had itself made a special provision for sale of properties in J&K.

The bench, however, made it clear that any provision of the J&K Transfer of Property Act will have to give way to the central law in case the former is found repugnant. “It is clear that anything that comes in the way of SARFAESI by way of a Jammu & Kashmir law must necessarily give way to the said law,” it said, adding that its judgement had no effect on Article 35A, which confers on permanent residents of J&K special rights and privileges regarding acquisition of immovable property in the state.

Scrapping NJAC: Judiciary versus not executive but will of the people

A five-judge Constitution bench of the Supreme Court on Friday scrapped the National Judicial Appointment Commission – passed by Parliament as the 99th amendment to the Constitution – disallowing the Executive a hand in selection of judges for appointment to High Courts and the Supreme Court.

Though one of the judges, Justice Chelameshwar had his reasons to uphold the validity of NJAC, the ruling will prevail till the government of the day at the Centre decides its future course of action to protect its Constitutional amendment. Therein is the recipe for a future confrontation between the judiciary and the executive on the issue of judicial independence.

India is free, egalitarian and democratic and values judicial independence. This independence in practice has to be seen in the level of transparency in the appointment of judges to the higher judiciary. The Indian judiciary, by dint of carrying on the task of upholding the Constitution and champion the fundamental rights of the people, has necessarily to be seen to have judicial accountability for itself.

What better way to uphold than to have a system of judicial appointments not exclusively headed and maintained by judges themselves? That is where the NJAC comes into the picture. And by scrapping the NJAC, the judiciary has opened itself to a lot of questioning. It is not the case of the judges appointing a bad judge or a good judge; it is of whether it can ever look fair for judges to appoint judges among themselves.

Judicial independence is a concept born in the United States where ironically, the selection and appointment of judges is clearly a political process with all powers retained by the executive. In India, on the contrary, the NJAC was a step towards enlarging the appointments panel to include the judiciary itself. The prevalent, collegium process of the judiciary itself appointing judges was felt a bit too independent an exercise which brought about the question of judicial accountability. That these are times when the Indian judiciary is seen to exercise judicial activism through frequent observations on the country’s political and social life, thus reinforcing that the executive is at times weak and at best indecisive, is an altogether separate matter.

It is the same principle of judicial accountability that provides a hierarchical system of the Supreme Court over the high courts and the high courts over the subordinate judiciary. However, the Supreme Court does not have an authority above it. So, how will the apex court account for accountability? The age of whimsical Victorian morality is long past us and Indian judges themselves have often admitted that they too are humans and therefore subject to mistakes. They are the conscience-keepers of the Constitution. Does it mean they are accountable only to themselves?

The entire controversy between the judiciary and the executive over the appointment system arose because of follies committed by both in the past. In the early years after Independence, it was so that most of the judges of the Supreme Court were previously judges of the high courts, with the senior-most of them taking over as Chief Justice of the apex court. It was in 1958 that the Law Commission of India found that the process did not take merit into account.

The Commission’s view-point was ignored until former Prime Minister Indira Gandhi decided to openly interfere with the judicial appointments, thus confirming her authoritarian mood that would eventually plunge India into the dark period of Emergency. In 1973, she appointed Justice Ajit Nath Ray as the Chief Justice, superseding three justices. She obstinately named his successor too – Justice MH Beg – superseding Justice HR Khanna who, coincidentally had dissented in a 1975 case on the need for Emergency detenus to have recourse to legal remedy.

The judiciary stung by such blatant misuse of power, and turning a blind eye to the less than proficient postures of the two Indira’s appointees, decided to bring in safeguards. The issue that remained unresolved in major judicial debates and in the deciding of such cases in courts was the nature of “consultation” (of who-ever, the Chief Justice or the President through the executive, etc) in the appointment of judges. Through rulings in what are called the First Judges’ Case (1981), the Second Judges’ case (1993) and the third Judges’ case (1998), the judiciary twisted and turned with this word.

First it said the Constitution talks about “consultation” and not “concurrence”, meaning thereby that while the Chief Justice can be consulted, the opinion of the President and not of the Chief Justice will have primacy. That was fine with the Constitutional provision. Then it made a turn, saying the opinion of the Chief Justice should have primacy. This was against the provision of the Constitution which says the President will appoint the judges after consulting the Chief Justice. This amounted to the judiciary becoming what some legal experts a self-appointed institution which was not as per the Constitution. The judiciary elsewhere in the world does not have such freedom to appoint judges by itself. In any case, since then, the collegium system came into existence which nullified the role of the executive in higher judicial appointments, the executive nursing its political wound saying the judiciary was over-reaching and that the executive would have to have a say in the appointments.

The NDA government brought in a bill to set up the NJAC. It was passed by Parliament in 2014 and came into force from this April. At last count 20 states had ratified it. However, some legal experts challenged it in the supreme court saying it stifled the role of the chief justice of the Supreme Court, subverts the independence of the judiciary and works against the “basic structure” of the Constitution.

Their contention was that the “basic structure” of the Constitution is not amenable to change at all and that judicial independence is one key aspect of the “basic structure” and therefore cannot be diluted by Parliament. A landmark judgement in 1973 (Kesavananda Bharathi case) had classified certain elements of the Indian Constitution as "basic structure". It has been held that the “basic structure” of the Constitution cannot and should not be tinkered with, as it belongs to the core of the Constitutional spirit.

The fight between independence – whose? -- and accountability – whose? -- has only begun.

The larger issue the judiciary will have to think about is the primacy of the will of the people in democratic India. Both Houses of Parliament had passed the NJAC Bill and 20 state assemblies have already ratified it. By committing itself against the NJAC, the Supreme Court with one stone wasted the opportunity of tweaking the NJAC to its satisfaction in consultation with the government and, secondly, has put itself in an impossible position to defend in future its preferred system of appointing judges on its own.

http://www.ibnlive.com/blogs/india/vvp-sharma/scrapping-njac-judiciary-versus-not-executive-but-will-of-the-people-14329-1152631.html

Judiciary: Soul of the Constitution

Free and fair judiciary is the soul of the Indian Constitution. By its pro-activeness the Indian judiciary has overcome the orthodox constitutional philosophy and has expanded the scope of right to life so as to read within its compass the right to live with dignity, right to healthy environment, right to humane conditions of work, right to know, right to adequate nutrition and clothing and so on. While dispensing with justice in civil, criminal or constitutional matter a judge not being a party to the Lis always decides the Lis impartially with the best of his ability and knowledge. A judge is deemed to have no knowledge of law but he is enriched by the knowledge of the Learned Councils of both sides. Sitting in the Chair of the Temple of Justice he listens patiently both the parties and comes to a decision which being the toughest job is avoided by the others. While deciding a Lis he cannot satisfy both the parties at a time. Any person being aggrieved by a decision of the court may carry the Lis to the higher forum in appeal or revision or may prefer review of the decision in the same court. This is the eternal beauty of the Indian Judiciary.

Any sort of interference in the functioning of the court in dispensing with justice amounts to contempt; which may be civil or criminal. The Supreme Court being highest body of the Indian judiciary is the custodian of the Constitution and its judgment is binding upon all citizens under Article 141 of the Constitution. Unlike the Supreme Court the High Court of each State is also the Court of Records and enjoys with writ and supervisory jurisdiction under Article 226 and 227 of the Constitution. The Parliament and the State Legislature have right to enact law in their respective field but if such law contradicts with the basic structure of the Constitution or abrogates the fundamental rights guaranteed under Part III of the Constitution the judiciary has right to declare the same as void. That being the settled principle of law it is frequently noticed that some persons constantly attack the judiciary and make indecent statement which knocks down the very foundation of the Indian democracy. It is sadly enough that they are not illiterate or rustic persons but they are educated and sometimes hold responsible status in public life.  

A healthy democracy is a nightmare if Judiciary does not function freely, fairly and independently. To ensure free, fair and independent judiciary the peaceful environment of the court compound is very much essential so that a judge while dispensing with justice remains in peaceful mind and does not face extraneous situation in the court compound. A judge does not fall from the heaven but he is a man of the society with all common virtues of an ordinary man. A chaotic atmosphere inside the court room and also in the court compound distracts the thought-process of a judge. It is therefore, duty of the police to maintain peace and tranquility in and around the court compound. Excepting the Supreme Court and High Courts of different States we hardly find peaceful environment in the subordinate courts particularly the Magistrate Courts.

Recently we saw an unfortunate incident at Alipore Magistrates’ Court which makes this issue afresh. After arrest of one political leader cum minister by the CBI in multi-crores Sarada scam he was taken to produce before the Magistrate’s Court. Thousands of his supporters and party members came on the street, blocked all the public roads and railway tracks in protest of such arrest ignoring the sufferings of the people. Such acts are not only offences under Indian Penal Code but also offence under the provisions of the National Highway Act. The situation turned worst when the Chief Executive of the State joined hands with the law breakers. A panicky situation was also created inside the court compound by unlawful assembly of thousands of unruly persons in presence of police with shouting and slogans as if the court compound was situated in the State of lawlessness. Similar situation was also noticed inside the court room. Such a horror atmosphere is not congenial to a judge in dispensing with justice. It is no doubt an attempt to terrorize a judge by way of power projection which amounts to criminal contempt of the court also.

What wrong the CBI did? Has the CBI been ordered by the Central Government to investigate the Sarada Scam to malign the State Government? No. It is the Supreme Court of India that entrusted the CBI to investigate the Saradha scam spreading over not only in the State of West Bengal but in the States of Tripura, Assam and Orissa also. If the State machinery feels that the CBI has not been working in accordance with law it may approach the Supreme Court for suitable direction upon the CBI. Instead of doing so demonstration in front of the office of the CBI under the leadership of a State Minister and paralyzing the State in protest of arrest of their leader cum minister are ultimately an act of challenging the authority of the highest Court of India and also interference with independent functioning of the judiciary which will not be approved by any civil society. It is very sad to say that the innocent people were led to rise voice on the street by some persons with vested interest in favour of a person who is not only an accused of economic offence but who destroys the trust of the common people also under the cover of the constitutional oath.

http://echoofindia.com/reflex-action/judiciary-soul-constitution-74221