While a Supreme Court ruling on Friday underscored that Jammu and Kashmir has no vestige of sovereignty outside Constitution of India, legal experts here maintain that the state continues to enjoy semi-sovereign status in keeping with its conditional accession.
"In my view, under the Constitution of India and Constitution of J&K the state enjoys semi-sovereign status. The reason for it is limited and conditional nature of accession," eminent lawyer Z A Shah told Greater Kashmir.
He said: "Since the state did not surrender its sovereignty in toto, but only to a limited extent, it continues to enjoy residue sovereignty. It is this sovereignty which gives special position to the state."
"Despite attempts made in the past to shrink sovereignty of the state, essentials and impregnable parameters of the internal sovereignty within the Federation is intact and under no circumstances it can be done away with," he said.
Shah said he was of the view that proper legal assistance does not appear to have been provided to the SC. "The state was expected to build its case in proper historical perspective and consequent constitutional developments. It appears it has not been so done."
Pointing out that in the High Court the state had taken the stand that "it proposes to enact its own law as regards recovery of dues from borrowers," Shah said: " It is not understandable whether the state maintained the said stand before the court or changed it."
He said the "judgment takes a different position from earlier decisions delivered by the court with regard to the issues involved in the case. The judgment can have serious implications on the matters pending before the apex court relating to Article 370, 35 (A), etc."
Senior lawyer Syed Tassaduque Hussain said: "The SC judgment requires a revision as on the basic question of sovereignty of J&K state it has laid down some propositions of law which are directly contradictory to the dictum laid down by the United States Supreme Court in an identical matter where in it was laid down that internal sovereignty of a federating state is essentially discrete and distinctive from the external sovereignty and judgments of the Supreme Court of the United States have explained and examined the question of sovereignty in the context of International Law."
Advocate Hussain pointed out that "SC judgment requires a revision because the ramification of judgment will have far reaching consequences. The Hon'ble Judges should have referred the matter to a constitutional bench of five judges."
J&K High Court Bar Association Saturday expressed serious concern over the judgment of the Supreme Court whereby it had held that the provisions of SARFAESI Act are applicable to the State of J&K.
"In an Executive Committee meeting held today, the members also expressed their surprise over the statement of Sunil Fernandes, who represented the State of J&K before the Supreme Court, stating that if Rule 8(5) of the SARFAESI Rules is read into section 13(4) of the SARFAESI Act, the State of J&K would have no objection to the SARFAESI Act, applying to the State of J&K," spokesperson of Bar said in a statement.
"It was stated that the counsel had no right to make such a statement before the Supreme Court, because the very application of the SARFAESI Act to the State of J&K was debatable in the context of Article 370 of the Constitution of India, read with other provisions of J&K Transfer of Property Act, etc," he added.
He said that the members unanimously stated that the judgment of the Supreme Court and the statement of the State Counsel, had far reaching consequences, as such the matter deserves to be examined by the members in detail, before taking any further course of action. "The members were accordingly requested to go through the judgment of the Supreme Court minutely and come forward with their suggestions/views on Monday, 19th of December, 2016, when they will meet again," he said.
Kashmir Centre for Social & Development Studies, a Civil Society group, is 'distraught' at the judgment of Supreme Court of India in respect of Securitization and Financial Reconstruction of Financial Assets & Enforcement of Security Interest Act,2002, known as SARFAESI Act.
"The judgment belittles the Constitution of J&K and undermines the importance of Article 370 of Indian Constitution which guarantees a special status to Kashmir within the Indian Union till the resolution of the Kashmir dispute in its historical perspective. It launches a direct ambush on the supremacy of J&K Constitution attempting to reduce it to a mere piece of paper," the group said in a statement.
"We plan to meet various other stakeholders like J&K Bar Association, trade bodies, etc. to formulate a joint response to the fresh legal onslaught on Kashmir's constitution and its special status. What is most disturbing is that such an important issue has virtually gone uncontested from the State government implying its tacit support to the government of India and its institutions to maul Kashmir's identity and special status," the statement said.