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Editorial Notes

Editorial Notes 19th December 2016

India-Indonesia: Bilateral relations; Economic, Security and Political relations between India-Indonesia; Supreme Court judgment on J&K; Article 35A
By IT's Editorial Notes Team
December 19, 2016

 

GS (M) Paper-2: “Issues and challenges pertaining to the federal structure”

 

Supreme Court judgment on J&K

Introduction:

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The Supreme Court has held that Jammu and Kashmir has “no vestige” of sovereignty outside the Indian Constitution and its own, while the citizens of the state are “first and foremost” citizens of India.

What’s the issue?

  • SARFAESI is an enactment which entitles banks to enforce their security interest outside the court process to take possession of secured assets of the borrower and sell them outside the court process.
  • The apex court judgement came on the appeal by State Bank of India (SBI) against the high court verdict which had held that the SARFAESI Act would collide with the Transfer of Property Act of Jammu & Kashmir, 1920.
  • The apex court observed that the conclusion arrived at by Jammu and Kashmir High Court which had held that the state has “absolute sovereign power” to legislate laws touching the rights of its permanent residents regarding their immovable properties is “wholly incorrect”.
  • The bench set aside the verdict of Jammu and Kashmir High Court that had held that any law made by Parliament, which affects the laws made by state legislature, cannot be extended to Jammu and Kashmir.

SC’s rationale:

  • The bench observed 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.
  • “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,” it said.
  • The apex court said this while holding that provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) are within the legislative competence of Parliament and can be enforced in Jammu and Kashmir.
  • “Entries 45 and 95 of List I provides 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.
  • “The High Court judgment begins from the wrong end and therefore reaches the wrong conclusion. It states that in terms of Section 5 of the Constitution of Jammu & Kashmir, the State has absolute sovereign power to legislate in respect of laws touching the rights of its permanent residents qua their immovable properties,” the apex court said.
  • It further said, “We may also add that permanent residents of Jammu & Kashmir are citizens of India, and there is no dual citizenship as is contemplated by some other federal Constitutions in other parts of the world”.
  • It also added 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.

Article 35A:

The Constitution (Application to Jammu and Kashmir) Order, 1954 was issued saying, that in exercise of the powers conferred by clause (1) of Article 370 of the Constitution, the President, with the concurrence of the Government of the State of Jammu and Kashmir, is pleased to order … (j) After article 35, the following new article shall be added, namely 35A.

35 A – Saving of laws with respect to permanent residents and their rights.— Notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu and Kashmir, and no law hereafter enacted by the Legislature of the State: (a) defining the classes of persons who are, or shall be, permanent residents of the State of Jammu and Kashmir; or (b) conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions as respects—

(i) Employment under the State Government;

(ii) Acquisition of immovable property in the State;

(iii) Settlement in the State; or

(iv) Right to scholarships and such other forms of aid as the State Government may provide, shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provision of this Part.

[Ref: Business Line]

 

GS (M) Paper-2: “Bilateral, regional and global groupings and agreements involving India and/or affecting India’s interests”

 

Launching New Delhi-Jakarta bilateral ties anew

India-Indonesia: Bilateral relations:

iastoppers-india-indonesia

  • India and Indonesia—two major powers in the Indo-Pacific—are now joining hands to back their bilateral ties.
  • These two powers have largely ignored each other even as their strategic interests have been converging rapidly.
  • Even under Prime Minister Narendra Modi and Indonesian president Joko Widodo, New Delhi and Jakarta have taken too long to reach out to each other.

Transition in the bilateral relationship:

ias-toppers-india-indonesia

  • A beginning is being made with Widodo’s visit to India which was the first presidential visit from Indonesia to India in nearly six years.
  • The two nations took aim at China’s aggressive stance on South China Sea when they “stressed the importance of resolving disputes by peaceful means, in accordance with universally recognized principles of international law, including UNCLOS”.
  • Modi and Widodo want their nations to emerge as major maritime powers to ensure a stable maritime order in the region because of China’s rapid rise and America’s growing reluctance to be the sole guarantor of regional security.
  • They have agreed to focus on their defence and security ties in order to jointly combat terrorism and organized crime.
  • It asked all nations to work towards eliminating terrorist safe havens and infrastructure, disrupting terrorist networks and their financing channels and stopping cross-border terrorism.
  • In a message to China, which has been blocking India’s move to get Jaish-e-Mohammed chief Masood Azhar designated a global terrorist, the two nations called upon all countries to implement the UN Security Council Resolution 1267 (banning militant groups and their leaders) and other resolutions designating terrorist entities.
  • The two nations underline the need to combat and eliminate “illegal, unregulated and unreported fishing” and recognized transnational organized fisheries crime as one of the emerging crimes which needs to be tackled on an urgent basis.
  • The launch of direct air services between the two countries is perhaps a signal that ties between the two nations are set for a launch.

Apprehension faced by India and Indonesia:

  • India and Indonesia do not have a direct stake in the maritime dispute. But both are concerned about China’s territorial expansionism and its reluctance to abide by global norms.
  • India is worried about the security of the sea lanes of communication in the larger Indo-Pacific, Indonesia has been concerned about Chinese maritime intrusions near the Natuna islands, which it claims as part of its exclusive economic zone, as well as Chinese attempts in the past to include the island chain in its territorial maps.

Economic condition between the two countries:

  • India and Indonesia are also among the very few fast-growing large economies today.
  • They have decided to give a major boost to their trade and investment ties by focusing on the areas of oil and gas, renewable energy, information technology and pharmaceuticals.
  • It is expected that bilateral trade between the two may grow to $60 billion over the next decade from the present volume of around $15 billion.
  • Both Modi and Widodo are working towards making their respective countries attractive destinations for global investors.

Security relationship between two countries:

  • India and Indonesia have been gradually enhancing their security and political ties.
  • The two signed a strategic partnership agreement in 2005 that started an annual strategic dialogue.
  • In 2006, they ratified a defence cooperation agreement, initially signed in 2001, which focused on areas of defence supplies and technology, as well as on joint projects.
  • The two have signed an extradition treaty and also a “mutual legal assistance treaty” for gathering and exchanging information to enforce their laws.
  • Joint naval exercises and patrols, and regular port calls by their respective navies, have become a regular feature of the India-Indonesia relationship.
  • Together, they control the entry point from the Bay of Bengal in the Indian Ocean to the Strait of Malacca.
  • India has also become a major source of military hardware for Jakarta.

Political relationship between two countries:

  • Similarities in democratic governing systems and broad foreign-policy outlooks have helped dramatically: Viewing India’s maritime presence as benign, Indonesia has openly invited India to help littoral states in the region maintain the Strait’s security but not very successful.
  • Despite being neighbours with shared cultural and historical links, the two nations had been distant in many ways, as exemplified by the lack of direct air connectivity between the two which was initiated with Widodo’s vsit.
  • Widodo’s visit has not only marked another step in India’s “Act East” policy of encouraging greater engagement with, and integration between, India and South-East Asia.
[Ref: LiveMint]

 

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