According to Article 370 of Indian Constitution concurrence of J&K State Government (democratically speaking state assembly), is mandatory for application of any parliamentary legislation in the state of J&K.
The very enactment of the Article 370 defines as much the constitutional relationship between the state of JK and Indian state, as the autonomous status of the JK state.
Enacted it was in the backdrop of India taking the Kashmir dispute to United Nations and committing herself to the various UN Security Council resolutions, granting right of self determination to people of JK, one can understand this relationship is not like that of other states willing to integrate with the Indian Union, but of a temporary (provisional) arrangement between the union of India and the JK, which, at the lapse of British paramountcy, has become independent. Alive to this basic reality, Indian government on its own subjected fleeing Maharaja Hari Singh's accession of state (whatever the compulsions of the time to take the decision) to people's reference.
A clear expression of faith in democracy and acknowledgement of the fact that Kashmir holds sovereign status. And this status remains intact till dispute, in its historical and holistic perspective, is settled. Extracting compliance through dubious and manipulated means is always stinking and recoils on the party drunk on military hubris.
Even Maharaja's accession, subjected to plebiscite, conceded to India only three subjects, defence, foreign affairs and communication. That also subscribes 'unique' character of the state. Had India remained loyal to the constitutional 'sanctity' (they say constitution is sacred), and not fiddled with the autonomous position of the state, the image of India in Kashmir would not have maligned to that of an imperialist. It would not have had to experience the shock and agony, embarrassment and disappointment of Kashmir going diametrically opposite on events of 'National' celebration and mourning. Despite towering Sheikh Abdullah being sedated to its fold and making him host of Nehru family, Kashmir's separate nationhood refused to be assimilated. Kashmir retained its identity even after Sheikh's descent in the lap of Delhi. Militancy and recent transition from gun to peaceful mass uprisings against India and all its institutions yet again stamp on the separate political individuality of Kashmir.
How ironic, the very ' sacrosanct' legal provision that, with regard to separate character of the state, lifts on its back the promise, assurance, sanctity and glory of the parliament, government, political consensus, judiciary– in fact all the important institutions that make and honor state— has been used as a tunnel to mount through every aggression of oneness. Although it was promised that the Article itself would act as the constitutional barrier against such constitutional and government onslaughts.
With pliable governments propped up at Srinagar, often lacking public support, it was not difficult for Sultans in Delhi to disempower Kashmiris and disembowel state off its ' vestige of sovereignty' it enjoyed at the time of accession and interim arrangement with Delhi. This 'concurrence' of state government, coming at the carrot of privileges, now has blended with the judicial arm of state India. The siege is closing in from all directions. The dread of Palestine looms large. SURFAESI Act is now applicable to J&K state.
Setting aside judgment of J&K High Court that had ruled out the applicability of the Act on the premise that state of J&K holds its own sovereignty, the Supreme Court of India ruled that state has ' no vestige of sovereignty outside the Constitution of India'. It also held that state has no 'absolute sovereign power touching the rights of its permanent residents regarding their immovable properties'.
SARFAECI Act, enacted in 2002 by Indian parliament, entitles banks 'to enforce their security interests 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'. Put in simple it allows the financial institutions from outside state to auction properties of a state subject in case they ( borrower) fails to repay their loans. Till now banks originating from our land alone had this power. Now through SURFAECI Act outside state institutions have too got the power to take possession of the state subjects' immovable property if they fail to clear the debt.
Don't be under any illusion. The judgment will have serious implications on the demography of the state, as it impacts immovable property. The judgment also impinges on the state's constitution and undermines the importance of Article 370, which guarantees a special status of Kashmir within Indian Union.
As we said in the beginning, state at the time of accession did not surrender its entire sovereignty, it parted with some of it and retained the residue sovereignty which it continues to enjoy, notwithstanding the vigorous attempts to erode it. And, more importantly, this remaining sovereignty Indian government or judiciary cannot take, as Indian constitution itself defends it. But now it looks we are caught in a dangerous predicament where fence has begun to devour the field.
The judgment has once again unfolded the collaborative role of the power lust pro-Indian parties. The JK government's counsel's conduct in the Supreme Court has made it evident that he did not oppose the SARFAESI Act. His assertion that he ' argued as per instructions of the state government' implies ruling PDP 's tacit support to government of India and its institutions to strike at the autonomous character of the state. Opposition parties, including NC's, flagellating of their chests will impress no one. All have in their stints in government mauled autonomy and interests of people to remain in power. Shame is something that craves for underground seclusion, not over-ground manifestation. But law minister Abdul Haq Khan is too bold to count application of SARFAECI Act as ' an achievement for the state'.
Indians weighted on time to exhaust our resolve and suppression to cringe us in submission. That didn't happen. Notwithstanding the fig-leaf of 'concurrence of state government'( read pliant governments). Now Delhi Sarkar is using judicial route to subvert state constitution and protective dykes. And the ' elected representatives' are fast turning into proxies of Durbar.