Jammu & Kashmir: Constitutional issues

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Constitution of J&K: is it sovereign?

See the page Jammu & Kashmir, constitutional issues: Sovereignty of J&K's constitution

Article 35 A

What is Article 35A?

Article 35A and its significance, Aug 8, 2017: The Times of India


Article 35A of the Constitution of India,unknown to the public domain till recent times, has raked up an intense debate in the country. Political narrative has a paradigm shift. Here's all you want to know about the article:

WHAT IS ARTICLE 35A?

Article 35A of the constitution empowers J&K legislature to define state's "permanent residents" and their special rights and privileges. It was added to the constitution through a presidential order of 1954 with the then J&K government's concurrence

WHAT IS ITS SIGNIFICANCE TO J&K?

  • Through 1927 and 1932 notifications, Dogra ruler of the princely state of J&K, Maharaja Hari Singh imposed a law that defined state subjects and their rights. The law also regulated migrants to the state. J&K joined India through instrument of accession signed by its ruler Hari Singh in October 1947.
  • After J&K's accession, popular leader Sheikh Abdullah took over reins from Dogra ruler. In 1949, he negotiated J&K's political relationship with New Delhi, which led to the inclusion of Article 370 in the Constitution.
  • Article 370 guarantees special status to J&K,restricting Union's legislative powers over three areas: defence, foreign affairs and communications.
  • However, under the 1952 Delhi Agreement between Abdullah and Nehru, several provisions of the Constitution were extended to J&K via presidential order in 1954. Article 35A was inserted then.
  • J&K's Constitution was framed in 1956. It retained Maharaja's definition of permanent residents: All persons born or settled within the state before 1911 or after having lawfully acquired immovable property resident in the state for not less than ten years prior to that date. All emigrants from Jammu and Kashmir, including those who migrated to Pakistan, are considered state subjects. The descendants of emigrants are considered state subjects for two generations.
  • Permanent residents law prohibits non-permanent residents from permanent settlement in the state, acquiring immovable property, govt jobs, scholarships and aid.
  • It was also interpreted as discriminatory against J&K women. It disqualified them from their state subject rights if they married non-permanent residents. But, in a landmark judgment in October 2002, J&K high court held that women married to non-permanent residents will not lose their rights. The children of such women don't have succession rights.

WHY IS ARTICLE 35A BEING DEBATED?

  • An NGO, We the Citizens, challenged 35A in SC in 2014 on grounds that it was not added to the Constitution through amendment under Article 368. It was never presented before Parliament, and came into effect immediately, the group argued.
  • In another case in SC last month, two Kashmiri women argued that the state's laws, flowing from 35A, had disenfranchised their children.

WHY ARE POLITICAL PARTIES & SEPARATISTS OPPOSED TO TINKERING WITH 35A?

Fear that it would lead to further erosion of J&K's autonomy and trigger demographic change in Muslim majority valley. Political parties say Kashmir resolution lies in greater autonomy; separatists fan paranoia against possibility of Hindus 'flooding' the valley. However, in the last 70 years, demography of Kashmir Valley has remained unchanged even as Hindu majority in Jammu and Buddhists in Ladakh have rights to buy property and settle in the Valley.

The debate on altering it

Akhilesh Singh, BJP faction for altering Art 35A on J&K `permanent residents', August 6, 2017: The Times of India


Away from the attention that Article 370 usually invites, a section of BJP sympathisers are steadily pushing the party's less-noticed promise of altering Article 35A of the Constitution, which empowers the J&K government to define “permanent residents“ of the state.

The article enables the state to provide special rights and privileges that permanent residents can enjoy but has been criticised by BJP as a provision that encourages alienation, deepens the concept of a separate identity and creates a political gap between J&K and the rest of India.

Under the Article, state laws have barred non-residents from purchasing land in the state and the issue is in focus with a Kashmiri woman, Charu Wali Khan, recently filing a petition seeking changes in the constitutional provision as she wanted succession rights though she is settled outside the state. Responding to her plea, the Supreme Court sent notices to the Centre and state last month. The woman has argued that the state's laws, flowing from Article 35A, have disenfranchised her.

Advocate General K Venugopal told the bench of Chief Justice J S Khehar and Justice D Y Chandrachud that the petition against Article 35A raised “very sensitive“ questions that required a “larger debate“.The court referred the matter to a three-judge bench and has set a six-week deadline for final disposal. The bench is likely to deliver its verdict in September first week. Union minister Jitendra Singh said that since the matter was sub judice, one should wait for the court's verdict. He said the court verdict would be bin ding on all.

State BJP leaders are vocal about their views as they strongly feel that Article 35A should be repealed. “Article 35A is a constitutional mistake. It was incorporated through a presidential order and not through the parliamentary process,“claimed Surinder Amabardar, BJP MLC from the state.

The Centre's stance seeking a “larger debate“ set off alarm bells among a section of politicians in the Kashmir valley , prompting CM Mehbooba Mufti's outburst during the Foundation Day celebrations of her PDP party . She asserted Article 35A should not be tinkered with, saying there would be no one to hold the tricolour if provisions regarding special status to J&K residents were altered.

A fraud on Constitution or necessity ?

K. B. Jandial , Article 35 A : a fraud on Constitution or necessity ? "Daily Excelsior" 30/8/2015

Unknown in the public domain till recent times, Article 35-A of the Constitution of India has raked up an intense debate in Kashmir. Political narrative has a paradigm shift. From the wild cries of “erosion of autonomy” and forewarning of “annulment of accession of J&K with India in the event of abrogation of Article 370 of the Constitution”, today Article 35-A is the focus of Kashmir press. Kashmir got a new issue to lash at R S S and BJP.

Contrary to the popular perception across the country including in J&K, it is Article 35-A of the Constitution and not Article 370, that helps J&K State in debarring all non state subject Indians from acquiring property or getting Govt. jobs.

Even though the constitutional validity of Art. 35-A was challenged last year( July 23, 2014)by a Delhi based NGO, “We, the Citizens” in the Supreme Court, Kashmir rocked only recently when R S S sponsored think tank “Jammu & Kashmir Study Centre” began its campaign on Article 35-A which it considers a sinister executive insertion in the Constitution that is blatantly discriminatory in nature which has victimized individuals and groups even within the state by denying them the basic rights.

The Supreme Court on August 17, 2015 granted time up to the first week of November this year to J&K and Central Govts to file their response on 51-page petition which A G Noorani describes as “reeks of emotive politics, factual errors, and far- fetched argument which are manifestly absurd”. Noorani feels that the Apex Court should not entertain such petitions. How a legal luminary of his standing forgets that every Indian is free to discuss, challenge and seek judicial scrutiny of any matter. Whatever views Noorani airs, the fact remains that the issue is in no way frivolous.

The Supreme Court is all set to examine the constitutional validity of the Presidential order issued under Article 370 of the Constitution. In a way, the Presidential order of 1954 made chapter III of the Constitution relating to fundamental rights, inapplicable to the State by resorting to “exceptions or modifications”. It safeguards special law relating to permanent residents granting special privileges to them in respect of acquisition of immovable property and Govt. employments to the exclusion of all other Indians. It is probably for the first time that the people are learning about existence of Article 35- A powered by article 370 as it is not found in most of the books of the Constitution of India and as such it explains people’s ignorance.

While Article 370 Cl 1 (c) says that the provisions of articles 1 and 370 shall apply in relation to J&K but at the same time, clause 1(d) provides a mechanism for extension of other provisions. It mandates that “such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify”. Such order is required to be issued with the “concurrence of the State Government.

Invoking powers vested in him under article 370 cl (d), the President issued “The Constitution (Application to Jammu & Kashmir) Order 1954 on May 14, 1954 (C.O.48)” where under many provisions of the Constitution and entries of schedules were made applicable to J&K. The order, inter alia, says, “After article 35, the following new article shall be added, namely:-

“35A. 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 or 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.”

With roots in Maharaja’s notification no. 1-L/84 of 20th April 1927 read with notification no.13/L dated 27th June, 1932, Article 35-A is the outcome of Delhi Agreement reached between Prime Minister Jawaharlal Nehru and J& K Prime Minister, Sheikh Abdullah in July 1952. The Constituent Assembly sanctified this controversial law five decades after these were notified by Maharaja Hari Singh. The PM received a high level delegation from J&K headed by Sheikh Abdullah himself on 20th July 1952,. The other members were Mirza Afzal Beg, Bakshi Ghulam Mohammed, Girdhari Lal Dogra & D. P. Dhar, all senior members of the Cabinet and members of the Constituent Assembly.

On July 24, 1952 Nehru informed Lok Sabha about Delhi agreement. On State subject provisions,he said, “The question of citizenship arose obviously. Full citizenship applies there. But our friends from Kashmir were very apprehensive about one or two matters. For a long time past, in the Maharaja’s time, there had been laws preventing any outsider, that is, any person from outside Kashmir, from acquiring or holding land in Kashmir. If I mention it, in the old days the Maharaja was very much afraid of a large number of Englishmen coming and settling down there, because the climate is delectable, and acquiring property. So although most of their rights were taken away from the Maharaja under the British rule, the Maharaja stuck to this that nobody from outside should acquire land there. And that continues.

“And in the state subject’ notification by the Maharaja, they defined grades of subjects….. And unless you come in one of these classes, you just cannot acquire land there, or any immovable property. So the present Government of Kashmir is very anxious to preserve that right because they are afraid, and I think rightly afraid, that Kashmir would be overrun by people whose sole qualification might be the possession of too much money and nothing else, who might buy up, and get the delectable places. Now they want to vary the old Maharaja’s laws to liberalize it, but nevertheless to have checks on the acquisition of lands by persons from outside. So far as we are concerned, I agree that under Article 19, clause (5), of our Constitution, we think it is clearly permissible both in regard to the existing law and any subsequent legislation. However, we agree that this should be cleared up. The old state subjects definition gave certain privileges regarding acquisition of land, the services, and other minor things, I think, State scholarships and the rest. So, we agreed and noted this down. (cl (5) of article 19 safeguards such existing laws).

“The State legislature shall have power to define and regulate the rights and privileges of the permanent residents of the State, more especially in regard to the acquisition of immovable property, appointments to services and like matters. Till then the existing State law should apply”, Pt Nehru explained the agreement.

Sheikh Abdullah too made a statement to the Constituent Assembly on Delhi Agreement on 11th August, 1952. On State Subject law, he said: “It was agreed that in accordance with Article 5 of the Indian Constitution persons who have their domicile in the Jammu and Kashmir State shall be the citizens of India. It was further agreed that the State legislature shall have power to define and regulate the rights and privileges of the permanent residents of the State more especially in regard to acquisition of immovable property, appointments to services and like matters. Till then the existing State law would apply. It was also agreed that special provision should be made in the laws governing citizenship to provide for the return of those permanent residents of Jammu and Kashmir State, who went to Pakistan in connection with the disturbance of 1947 or in fear of them as well as of those who had left for Pakistan earlier but could not return. If they returned, they should be entitled to the rights, and privileges and obligations of citizenship.

“There are historic reasons which necessitate such constitutional safeguards as for centuries past, the people of the State have been victims of exploitation at the hands of their well- to- do neighbours. The Hon’ble Members are perhaps aware that in the late twenties, the people of Jammu and Kashmir agitated for the protection of their bona fide rights against the superior competing interests of the non- residents of the State. It was in response to this popular demand that the Govt. of the day promulgated a Notification in 1927 by which a strict definition of the term “State Subject” was provided. I am glad to say that the Govt. of India appreciated the need for such a safeguard. No definition of the special rights and privileges of the residents of the State can afford to remain static. The need may arise at one stage or the other to liberalise such a definition. The importance of the fact that State Legislature shall retain powers to be able to effect such modifications becomes obvious in this context.”

The historic Delhi Agreement records the agreement reached on the existing State Subject law in following manner:

ii. “it was agreed between the two Governments that in accordance with Article 5 of the Indian Constitution, persons who have their domicile in Jammu and Kashmir shall be regarded as citizens of India, but the State legislature was given power to make laws for conferring special rights and privileges on the ‘state subjects’ in view of the ‘State Subject Notifications of 1927 and 1932: the State legislature was also empowered to make laws for the ‘State Subjects’ who had gone to Pakistan on account of the communal disturbances of 1947, in the event of their return to Kashmir;”

Consequent upon Delhi Agreement, J&K Constituent Assembly made special provisions for State Subjects from Section 6 to 10. As explained by Sheikh Abdullah, the term State Subject underwent change to Permanent Residents which is defined in Section 6. In addition to existing two classes of State Subjects as per Maharaja Notifications, Section 6 expanded the scope of definition by making a provision that any Indian citizen having lawfully acquired immovable property in the State, he has been ordinarily resident in the State for not less than ten years prior to that date (May14, 1954). A provision was also made for those state subjects who migrated to POK and return on valid document for resettlement. Constitution doesn’t make it time bound.

While Maharaja Hari Singh, as Nehru explained, was motivated to issue State Subject notifications to prevent Englishmen and probably others too, to take Govt. jobs & acquire land in J&K, Sheikh Abdullah retained these provisions, obviously to protect State’s Muslim majority character. Nehru had no choice but to agree as J&K was the only Muslim majority state in secular India. So, it was more of a political imperative than legal imperative.

On the face of it, Article 35-A is in direct conflict with Articles 14 and 16 of the Constitution and is highly discriminatory in nature. Article 14 grants to all citizens right to equality before the law or equal protection of the laws while Article 16 provides a right of equality of opportunity in matters relating to employment for appointment to any office under the State. Therefore, Article 35-A impinges upon the fundamental rights of other citizens of India. Since J&K’s existing law granting special privileges to its State Subjects to the exclusion of all other Indian citizens amounts to violation of their fundamental rights, insertion of Article 35-A was found necessary to grant constitutional safeguard from being strike down by the courts as ultra vires. But many still holds it a fraud on the Constitution as it has neither mandate of Constitution nor of Parliament.

Empowering Parliament to amend the Constitution, Article 368 (i) says,” Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.”

On the other hand, article 370 lays down a separate mechanism for extension of other provisions of the Constitution to J&K subject to such “exceptions and modifications” as the President may by order specify.

Does insertion of Article 35- A in the Constitution for exclusive application to J&K amount to “exception or modification” as prescribed in Article 370 cl (1) (d)? If not, then does the President have power to add a new article in the Constitution by an executive order bypassing the Parliament which exercises its constituent power while amending the Constitution ? Doesn’t addition of new article by President amount to amendment of the Constitution for which the power vests alone in Parliament under article 368? Who is sovereign- Parliament, President or J& K Legislature? It is quite a complicated issue.

The arguments of J&K Sturdy Circle cannot be dumped in to dustbin. It questions President invoking powers from a “temporary provision” i.e. Article 370 (1) to amend the permanent provisions of the Constitution. The Presidential order violates the basic structure of the constitution -separation of powers between the legislature and the executive, and constitution’s amending power of Parliament. Argument has merit that since Parliament represents the will of people including of J&K the Constitution empowers it to amend constitution as per the scheme prescribes in article 368. The Parliament is supreme and sovereign.

Arun Jaitley as LOP Rajya Sabha posted on Facebook on Dec. 5, 2013 that “Should a provision like Article 35-A, which exists only because of Article 370 have place in any civilized society?” Jaitley asked.

“It is discriminatory and violative of fundamental rights. On a bare reading, it violates the basic structure of the Constitution. I wonder if its constitutional validity will be challenged at some point of time.” Whether he still holds same views as a Minister of NDA but article 35-validity has been challenged.

The contrary view, coming from Kashmir, is that the petition ” attempts to undo a constitutionally settled position which is not permissible as Article 370 and Article 35A are basic features of the Constitution and the constitutional arrangement between two states, and are, therefore, untouchable.” Kashmir’s legal experts assert that the grounds on which the petition has been filed are “legally and constitutionally misconceived,” and it raises questions which are political in nature. The courts cannot entertain petitions which involve political issues as ‘it betrays the faith of the people in constitutional democracy,” they argue.

Notwithstanding these views, the Supreme Court may examine provisions of Article 370 that vests in the President unusual powers to extend others provisions of the Constitution of India with suitable “exception or modification”. If SC strikes down this constitutional scheme, J&K would return to 1954 position, another dangerous consequence. And if it upholds the constitutional scheme under article 370, it will have to determine whether addition of article 35-A comes under the expression “exception or modification”? As a student of constitutional law, amendment is all inclusive, includes addition, deletion, exception and modification but the country has to wait for Apex Court’s judgment.

Discriminatory ?

Dr Ganesh Malhotra , Art 35-A:Discriminatory in nature "Daily Excelsior" 14/5/2017

On May 14, 1954, the President of India issued an order called the Constitution (Application to Jammu and Kashmir) Order 1954. It came into effect immediately and superseded the Constitution (Application to Jammu and Kashmir) Order 1950.

Besides carrying out many modifications and changes, this presidential order ‘added’ to the Constitution of India, a new Article namely 35A as an amendment to Article 35. The 1954 order states it is being issued “in exercise of powers conferred by clause (1) of Article 370 of the Constitution, with the concurrence of the Government of Jammu and Kashmir”. No amendment in Indian Constitution can be done without Parliament without following procedures mentioned in Article 368.

Article 35A was never presented before Parliament of India. Unlike other amendments, it appears in the Constitution as an appendix and is not listed in the list of amendments either.

Article 35-A has discriminated Permanent Residents of Jammu and Kashmir instead of Protecting the Permanent Resident. But it is propagated that this provision is for the protection of Permanent Residents of J&K. This provision has multiplied the miseries of many people in J&K instead of protecting them. The main worst sufferers are:

Women Permanent Residents

Backed by Article 35-A Section 6 as adopted and strictly enforced by the State Government reads: (I) “Every person who is, or is deemed to be, a citizen of India under the provisions of the Constitution of India shall be a permanent resident of the State, if on the fourteenth day of May, 1954, (a) he was a state subject of class I or of class II, or (b) having lawfully acquired immovable property in the State, he has been ordinarily resident in the State for not less than ten years prior to this date” and (II) “any person who, before the fourteenth day of May, 1954 was a State Subject of class I or of class II and who, having migrated after the first day of March, 1947, to the territory – now included in Pakistan, returns to state under a permit for resettlement in the State or for permanent return issued by or under the authority of any law made by the State Legislature shall on such return be a permanent resident of the State”.

As for Sections 8 and 9, the former gives the State Legislature the right to define Permanent Residents and the latter empowers the State Legislature to alter the definition of Permanent Residents.

All the laws framed by Maharaja Hari Singh or subsequent Government were Gender neutral. They defined the Permanent resident not Male permanent resident or female resident. But later on notwithstanding anything in PRC act the concept of “Valid Till Marriage” got introduced in it without any legal sanction.

Up to 2002, the Revenue Department was issuing Permanent Resident Certificates (PRCs) to the female residents of Jammu and Kashmir with the endorsement as “Valid Till Marriage”. This became ground for a petition before the State High Court about 15 years back whereby selection of a doctor was challenged on the plea that she was married to non state subject.

The judgment of Single Judge whereby selection was quashed was challenged in the Division Bench of J&K High Court and keeping in view the involved legal issue a Full Bench comprising of Justice V Jhanji, Justice T Doabia and Justice M Jan was constituted.

The reference before the Full Bench was: “Whether the daughter of a permanent resident of the State of Jammu and Kashmir marrying a non-permanent resident loses her status as a permanent resident of State, to hold, inherit and acquire immovable property in the State?”

In view of the majority opinion, the Full Bench in a case titled Jammu and Kashmir Versus Dr Sushila Sawhney and Others held that a daughter of a permanent resident marrying a non-permanent resident will not lose the status of permanent resident of State of Jammu and Kashmir.

Though the State Government initially filed Special Leave Petition (SLP) in the Supreme Court against the verdict of Full Bench of J&K High Court but later withdrew the same after making an opinion that it will carry out necessary amendments in the Act governing issuance of PRCs.

In March 2004, an attempt was made by the PDP-led coalition government to bypass the High Court’s landmark judgment. It moved an official Bill after the tough stand of Hon’ble Supreme Court which was passed in a record 6 minutes.

But the Bill was declared “defeated” in the Legislative Council. The main reason was that the bill had created a storm in Jammu and at the national level as anti-women, reactionary and out-dated.

J&K High Court on four occasions delivered judgments aimed at ensuring gender equality. The judgments were unambiguous and were hailed by one and all.

Unnecessary confusion has been created to implement the judgement of Hon’ble High Court in Dr Susheela Sawney case and thereafter. After 15 years of Judgement the situation seems to be at the same point. Despite clear Judgement of Hon’ble High Court and law position a Committee has been constituted to deliberate on matters which are already settled. Central Govt cannot intervene because of Article 35-A.

If a woman marries outside the state:

When women belonging to the state of Jammu-Kashmir marry outsiders, they cannot settle in the state even if the circumstances so demand.

A man from another state marrying J&K a woman cannot get PRC, hence none of the associated benefits. Which means he cannot buy land, cannot apply for a government job, his children cannot study in state-run professional colleges and institutes.

This means if a woman marries outside the state, she is virtually forced to leave the state and settle elsewhere. Earlier, such women used to completely lose the ‘permanent resident status’. But still her off springs and spouse don’t get PRC which is not there in case of male.

Now questions are:

  • When Permanent resident law is gender neutral then how discrimination is being allowed to women in the name of gender?
  • Are there any separate laws for male permanent residents?
  • Whether Article 35-A was introduced to protect Permanent Residents or to discriminate?
  • Is it not Human rights violation?

The most depressing story is that of safai karamcharis in Jammu-Kashmir.In 1957, around 200 Valmiki families were brought from Punjab to Jammu-Kashmir, following a cabinet decision, specifically to be employed as Safai Karamcharis (sweepers).

These families agreed to work in the state after being promised that the ‘permanent resident’ clause would be relaxed in their favour. After a lapse of five decades, family strength of each family has increased and number of employees has gone up. However, their plight is that they are ‘permanent residents’ of Jammu-Kashmir only to the extent of being Safai Karamcharis.

Their children have studied up to graduation level but are not eligible to apply for Government jobs. Their children cannot get admission to government-run professional institutes. The educated youth from these Valmiki families are only eligible to be appointed as safai karamcharis only.

The educated Safai-Karamcharis already working in Jammu Municipality now qualify for further promotions. But as they can only be employed as sweepers, there is no hope. These Safai-Karamcharis can vote for Lok Sabha elections, but not for State Assembly or municipality elections.

The colony that was allotted to Safai Karamcharis to live in (Valmiki Colony, Gandhi Nagar, Jammu) has not been regularized till date.

Now questions are:

  • Are these the standards of Human rights being claimed?
  • Don’t these people and their Children have right to grow and develop?

Gorkhas were employed in all the ranks of army of Maharaja Ranjeet Singh and then Maharaja Gulab Singh. Their families settled in Jammu and Kashmir more than 200 years ago. They are around one lakh people. They have State subject granted by Maharaja but now they are not granted PRC on illogical grounds. This is due to Article 35-A giving State Government free hand to discriminate even the Permanent residents of State.

Now the point is that if Article 35-A was enacted to protect the rights of Permanent Residents of Jammu and Kashmir then how discrimination is being there with said people like women, Valmikis or Gorkhas and many more. If Article 35-A provides a shield to Government of J&K to discriminate the Permanent Residents of Jammu and Kashmir then why it shall not be abrogated with immediate effect. These points need to be given a serious thought to protect the Permanent Residents of J&K from further discrimination.

(The author is J&K based Political

and Strategic Analyst)

Re-introspection

Kr Swarn Kishore Singh , Debating Art 35A "Daily Excelsior" 2/12/2017

For last few months, the debate over Art. 35A is on the rise, some of the big titans declared it ultra vires, some questioned the procedure with which it was introduced and made a part of constitution of India, one even went on to say that it was never part of the Indian constitution, and even disheartening is the manner in which every group is having a claque to cheer the scrimshank behaviour of their guy. These statements find their origins in some sort of desperation of those particular individuals to appease someone at the helm of the affairs and get something in quid pro quo. What is worth mentioning here is that since federalism is part of our basic structure and what is going to be the defining line after which the term federalism is going to be detrimental to the unity of the federation?

As Justice Subba Rao says in his dissenting judgment in case State of West Bengal vs Union of India (1963);

“The future stability of our vast country with its unity in diversity depends upon direct adherence (to) the federal principle, which the fathers of our constitution have so wisely and foresightedly incorporated therein. This court has the constitutional power and the correlative duty; difficult and delicate one to prevent encroachment, either overtly or covertly, by the union on state field or vice versa and thus maintain the balance of the federation.

The US Congress had admitted Oklahoma to statehood on November 16, 1907 after acceptance of a stipulated condition that Guthrie would be its temporary capital till 1913. But after three years i.e. in 1910, legislature of Oklahoma passed a law for removal of Guthrie as state’s capital and keeping Oklahoma City as new capital city. Following this, a suit was filed challenging the law bypassing the stipulated condition for admission to statehood. The question of law was whether the Congress, in its acknowledged discretion to admit new states could impose conditions that would bind the states after its admission. The Supreme Court of USA held with a majority of 7:2 that it could not. The Supreme Court of USA held that the restrictions that the Congress had placed on Oklahoma were invalid further upholding the rights of the state to locate its capital wherever and whenever it decides to. The Supreme Court further read into the American constitution the unwritten understanding of state equality and observed that “the constitutional equality of the states is essential to the harmonious operation of the scheme upon which the republic was organized. When equality disappears we may remain a free people but the union will not be the Union of the constitution”.

But mind you, the federalism of USA is quite different from Indian system. We here in India are not that strict a federation, here we have Article 3 of Constitution of India which goes on to say that the Parliament may by law can even extinguish a state, leave aside choice of capital or anything and this has been stamped by Hon’ble Supreme Court of India in Babulal Parate case.

We have got a particular system wherein the spheres of action of both state and centre are clearly defined i.e. centre list, state list & concurrent list; with an Apex Court acting as the watchdog to put a check on the party intruding other’s turf. But when it comes to Jammu & Kashmir, the whole system reverses; to pull in a lot of constitutional definitions & interpretations, historical perspectives, agreements and what not, which makes it more of a case of jumbled threads of sentiments of us Indians than any issue whatsoever.

This whole fiasco has its roots in the fetish of Hari Singh, the last king of the Jammu & Kashmir to stay independent and not to accede to India or Pakistan just because this land was bought by his great grandfather. The indecisiveness to decide between India, Pakistan and then subsequent exploitation of that indecisiveness by the Kashmiri fundamentalist parties and Nehru’s obsession for conservation of friendship with Sheikh Abdullah, Sardar Patel’s passiveness; all these factors finally led to birth of this demon called Article 370 which we are fighting for last 70 years and more.

If only legal aspect is considered and the historical perspective is ignored while discussing Art. 370 & Art. 35A of Constitution of India, then it would be very irresponsible on our part. It goes like, on 20th June, 1949, Hari Singh retired to hand over the throne to his son, Karan Singh. Karan Singh, on 1st May 1951 issued a proclamation for establishment of a state constituent assembly, constituting of representatives of the people, elected through an election process for framing of a constitution for the entire state. The whole process was completed in three months and Karan Singh had a constituent assembly of 75 members with Sheikh Abdullah and his party sweeping the elections completely. Imagine the credibility of the elections, when in 2020’s the Election Commission isn’t able to complete the whole process in three months, how come Karan Singh completed the whole election process, starting from proclamation of elections till the declaration of the results in ninety days. The way elections were conducted and subsequent victory of Sheikh Abdullah bears testimony of degree of friendship between Mr Nehru & Sheikh Abdullah. Infact the magnitude of their friendship of can be estimated by virtue of a letter written to Vijay Lakshmi Pandit, sister of Jawahar Lal Nehru on 10 May, 1950, wherein Mr. Nehru had said; “I am sorry to say that Sheikh Abdullah is behaving in a most irresponsible manner. The most difficult thing in life is what to do with one’s friends”(sic).

After the completion of elections, Mr. Sheikh Abdullah, being supreme leader of the party which had literally swept the elections made the opening speech in which he clearly enumerated the objectives of the assembly. He had said that apart from framing of constitution for the state, the assembly was supposed to come up with its reasoned conclusions regarding the accession and the future of the state. He had even given three alternatives i.e. accession to India, accession to Pakistan or complete independence. The drafting committee comprising of the members of constituent assembly came up with a report which ratified the accession of state of Jammu & Kashmir to India and the same report was adopted by constituent assembly. The constituent assembly finally established the state constitution on 17th November, 1956 & it came into full force on 26th January, 1957.

Then there is section 3 of the constitution of J&K, which says “the state of Jammu & Kashmir is and shall be an integral part of the union of India”. Further the proviso which further cements the position and claims of India over J&K is section 147 of constitution of J&K which says” no bill or amendment seeking to make a change in the provisions of section 3 or 5 shall be introduced or moved in either house of the legislature.

Then there is issue of Art. 370; for that I don’t have to say anything but to present a paragraph from an interview of Professor Balraj Madhok published in magazine Organizer in which he had said; ” Nehru sent Abdullah to Dr. Ambedkar to explain to him position and draft an appropriate article for the constitution. Ambedkar was a good friend of mine. He himself told me that after hearing Abdullah patiently, he told him, “Mr. Abdullah, you want that India should defend Kashmir, India should develop Kashmir and Kashmiris should have equal rights as citizens of India, but you don’t want India and any citizen of India to have any rights in Kashmir. I am the Law Minister of India. I cannot betray the interest of my country”(sic).

And as far as issue of 35A is considered; it is worthwhile to mention here the constitution of India was enforced on 26th of January 1950 & on the same day by exercise of powers vested under the President of India under Art. 370, first constitution (Application to Jammu & Kashmir) order was passed. Since then more than 45 constitutional orders with respect to application of constitution of India to Jammu & Kashmir have been passed but the most tyrannical and draconian of them was Constitution (Application to Jammu & Kashmir) order, 1954.

Infact Constitution (Application to Jammu & Kashmir) order, 1954 has its roots in another despotic document namely Delhi agreement after which a presidential order after exercising of powers given under Art. 370 was passed.

It is really unbelievable that by virtue of Constitution (Application to Jammu & Kashmir) order, 1954, Indian executive passed order wherein Art. 7 & 81 have been changed and by just cursory look at the draft gives us an impression of the tyranny with which that order was passed. Alterations in Art.16 & Art. 19 & omission of Art. 32(3) exhibited the level of insensitivity towards the people of J&K on the part of the then Union Government.

This Constitution (Application to Jammu & Kashmir) order, 1954, is nothing but a blot on the constitutionalism itself. Infact the Art. 370 and vesting of residuary powers in state is a licence at the hands of few families in the state to come up with any tyranny against which we have no remedy. This Art. 370 is a tool at the hands of State Government to keep us away from getting into mainstream and whenever we ask the government for some rights which are guaranteed by Constitution of India; we are handed a very lame excuse which is as, “This act doesn’t apply for state of Jammu & Kashmir”. Panchayati elections have been held only twice in last 70 years; there was no Juvenile Justice Act in the last till 2013; this is the real face of 370 for us.

As far as legal aspect is considered; the procedure with which 35A was incorporated in constitution of India is perfectly fine and it is very much given in Art. 370 itself. It is very much part of Constitution of India but only to the extent of its application to Jammu & Kashmir.

But what needs a re-introspection is not the legality of this constitutional order but its constitutionality. We are still ready to protect the people who had left us in 1947, crossed over to Pakistan and never came back but the people who are serving us for last more than 70 years aren’t yet part of us. How come my sister who is equal co-sharer in my dad’s property as is my brother gets alienated the day she is married outside the territory of Jammu & Kashmir? Such laws find more correlation to those of some primitive tribes in Africa who aren’t married outside their tribes just to protect their culture and keep the dilutions away. We are living in 21st century and having such laws is indeed a blot on our democracy and civilization as well.

And then there are two popular political beliefs in the state of Jammu & Kashmir of two major regional political parties i.e. autonomy and self-rule. Unfortunately, autonomy is a concept which has its origin in aspiration of a person who at one point of time aspired to be Prime Minister State of J&K, consequently making J&K alienated from the federation, which is sort of undoing of the instrument of accession and the subsequent resolution of the constituent assembly of the state. But the document of self rule which is so-called framework of another regional political party of the state for resolution of Kashmir issue is even worse. It is nothing but a license for Pakistan to enter the territory of Kashmir and for Kashmir to blackmail India even more. That document is having such utopian ideas that one will die laughing as they are more laughable than thought-provoking.

Just like a coin gets defaced and its engraving gets erased after being in circulation for long time, the Kashmir issue has got denuded of its true issue. Kashmir issue is different issue for different people, and to some people it means no more than a cabinet rank or a shopping mall in Dubai.

It is high time for Government of India to at least stop considering the people of Jammu & Kashmir as lesser beings. The Union Government and the judiciary should atleast treat the people of Jammu & Kashmir at par with the people of Haryana, Bihar, Maharashtra, Kerala or Gujarat. The rights given to the people in these states be bestowed upon us as well. While we, as a nation are boasting that we are a modern civilization and at the same time if we are having a part of the country where the people are still facing this sort of discrimination, isn’t it shameful? Rethink!

(The author is a practising advocate & a political and legal analyst)

Article 370: history

Saamna: Both Nehru, Patel supported Article 370

Ambarish Mishra, Saamna: Not just Nehru, Patel also responsible for Article 370, July 8, 2019: The Times of India


Shiv Sena’s mouthpiece Saamna has said it was Sardar Vallabhbhai Patel, who got Article 370 inserted into the Constitution in 1949. “It would be seditious to hold Jawaharlal Nehru alone responsible for this; Sardar Patel too should be given the credit for Mission 370,” said Shiv Sena member Sanjay Raut in a signed op-ed in the newspaper on Sunday. Article 370 was a “transitional” status assigned to J&K, Raut said, citing official records.

Raut said it would be wrong to blame Nehru and Patel for incorporating Article 370 into the Constitution. “Times were different, the situation and the country’s capabilities were different as well.... Nehru and Patel did what they then felt was proper for the country,” said Raut. Ally BJP, which has been closing in on Nehru for investing J&K with a special status, may find Raut’s article embarassing, said observers.

Article 370: legal issues

SC : only Parliament can take call on Article 370

Neeraj Rohmetra , SC says only Parliament can take call on Article 370 "Daily Excelsior" 1/11/2015


The Supreme Court has ruled that only Parliament can take a call on scrapping Article 370 of the Constitution of India, which accords special status to the State of Jammu and Kashmir and dismissed a Public Interest Litigation (PIL) filed by Purshotam Yadav.

A division bench of Supreme Court headed by Chief Justice HL Dattu and comprising Justice Amitava Roy dismissed the petition filed by Yadav ruling that it was only the Parliament that can take the call on Article 370.

The significant ruling by the Supreme Court came only days after Jammu and Kashmir High Court observed that Article 370 is a ‘permanent’ provision of the Constitution.

The PIL filed by Purshotam Yadav wanted removal of Article 370 from the Constitution of India that grants special status to Jammu and Kashmir.

Refusing to entertain the PIL, the Supreme Court said that the court cannot issue such directives. “Will it be done by the Court or by Parliament? Can we ask Parliament to delete a provision from the Constitution? It is not for this court to do so,” the bench observed.

An Andhra Pradesh based lawyer, Yadav argued before the Supreme Court that the issue required interference by the apex court. However, the bench turned down his plea.

“We can strike down a provision if it is unconstitutional but we cannot ask Parliament to remove a provision. It has to be done by them (Parliament),” the bench said and asked Yadav to file a better petition if he intends to pursue this matter any further.

Yadav, in his petition, had requested the court to quash Article 370 and make all laws, which are applicable to other States, also valid for Jammu and Kashmir. The plea also sought direction for removal of the words “except Jammu and Kashmir” from all the pertinent statutes where laws are made applicable to all other States and Union Territories.

According to Yadav, Article 370 and the consequent Presidential Order abridge the Constitutional scheme and also violate Part III, which relates to the fundamental rights of people and comprises the basic structure. He pointed out that Article 370 has been titled as a “temporary provision” that makes it amply clear that it had to go after some time.

Earlier this month, the J&K High Court had observed that notwithstanding its title “temporary provision”, Article 370 is a permanent provision of the Constitution. “It cannot be abrogated, repealed or even amended as mechanism provided under Clause (3) of Article 370 is no more available,” the court observed in its judgment on a case challenging the reservation benefit in promotions to the employees.

Noting that Article 35A protected the existing laws of the State, the High Court said that Jammu and Kashmir had retained limited sovereignty while acceding to the Dominion of India, and did not merge with the Dominion of India like the other princely states that signed the Instrument of Accession.

It said that the Constituent Assembly of 1957 was empowered to recommend to the President that Article 370 be declared to cease to be operative or operate only with the exceptions and modifications, but it did not make such a recommendation before its dissolution on January 25, 1957. It had added Article 370 embodied “conceptual framework of relationship” between the Union of India and J&K.


Art 370 confers special status on J&K : DB

Daily Excelsior , Art 370 confers special status on J&K : DB "Daily Excelsior" 18/11/2015

Division Bench of State High Court comprising Chief Justice N Paul Vasanthakumar and Justice Bansi Lal Bhat today categorically stated that Jammu and Kashmir is enjoying special status under Article 370 of the Constitution of India as such the laws enacted by the Parliament cannot be made applicable without the consent of State Legislature.

These observations were made in a petition filed by one Jagdev Singh seeking expunging of words “except the State of Jammu & Kashmir” from Clause (b) of Sub Section (2) of Section 1 of the Administrative Tribunals Act, 1985.

The petitioner submitted that these words are offending Article 14 of the Constitution of India to the persons residing in the State of Jammu and Kashmir and appointed to the public services and posts connected with the affairs of the State and for adjudication of their disputes.

After hearing petitioner in person whereas Advocate General Jahangir Iqbal Ganai with Advocate AH Bhat appearing for the State, DB held that State of Jammu and Kashmir is enjoying special status which is conferred under Article 370 of the Constitution of India.

“Bearing this in mind, the Parliament while enacting the Administrative Tribunal Act, 1985 has provided that the Act empowering to create the Administrative Tribunal for States is applicable, except the State of Jammu and Kashmir”, the DB said, adding “the special status conferred under Article 370 of the Constitution of India to the State of Jammu and Kashmir is not in dispute. In such circumstances, the wisdom of the Parliament in excluding the constitution of State Administrative Tribunal in the State of Jammu and Kashmir under the Administrative Tribunal’s Act, 1985 cannot be declared as illegal as contended by the petitioner”.

Division Bench further observed that the Central Government employees serving in the State of Jammu and Kashmir are entitled to approach the Central Administrative Tribunal in terms of Section 1(2)(a) of the Act as held by the Supreme Court.

“The contention of the petitioner that all other States have constituted the State Administrative Tribunals is also not correct as in some of the States the State Administrative Tribunals have not been constituted to resolve the disputes of the State Government employees. In some other States, particularly in the State of Tamil Nadu, even though the State Administrative Tribunal was created in the year 1988 but due to the defective functioning, the Tribunal was windup and all the cases which were earlier transferred from the High Court to the Tribunal or filed before the Tribunal were re-transferred or transferred to the High Court”, the DB said.

Stating that the contention raised by the petitioner that the employees of Jammu and Kashmir Government are discriminated has no basis, the DB further observed, “the Supreme Court has held that even if the State Administrative Tribunal is created, the orders passed by the Tribunal can be challenged before the High Court at the first instance i.e., before the Division Bench and thereafter only the parties can approach the Supreme Court”.

“Hence the reduction of pendency as pleaded by the petitioner cannot also be achieved”, the DB said while dismissing the PIL.

Article 370 has acquired permanent status: SC

Dhananjay Mahapatra, April 4, 2018: The Times of India


HIGHLIGHTS:

The top court said the Article 370 has acquired permanent status through years of existence, making its abrogation impossible.

The issue has acquired political overtones as there is a sharp divergence between the views of BJP and its partner PDP in J&K.

The Supreme Court said Article 370 of the Constitution, conferring special status on Jammu and Kashmir and limiting the Central government's power to make laws for the state, had acquired permanent status through years of existence, making its abrogation impossible.

The observation came from a bench of Justices Adarsh K Goel and R F Nariman on a petition by Kumari Vijayalakshmi Jha, who sought a declaration that Article 370 was a temporary provision that lapsed with the dissolution of the J&K Constituent Assembly on January 26, 1957. She also sought a declaration that the constitution of J&K was void, inoperative and in breach of the Constitution.

The issue has acquired political overtones as there is a sharp divergence between the views of BJP and its partner PDP in J&K. The discussion also comes at a time when residency laws for J&K under Article 35A of the Constitution have been challenged for denying women marrying outside the state the right of inheritance and restricted employment.

Justice Nariman drew additional solicitor general Tushar Mehta's attention to the SC's 2017 judgment in State Bank of India vs Santosh Gupta case and said the controversy over Article 370 was settled by the court ruling the provision had acquired permanent space in the Constitution and it could no longer be abrogated.

The SC had said since the Constituent Assembly of the state ceased to exist, the President would not be able to fulfil the mandatory provision of getting its recommendation for its abrogation.

Appearing for J&K, senior advocate Rajeev Dhavan and additional advocate general M Shoeb Alam refuted the Centre's claim that a similar petition was pending consideration before a bench headed by CJI Dipak Misra. Dhavan said the issue pending consideration related to validity of Article 35(c) of the Constitution and not Article 370.

Mehta said the Centre would study the implication of the 2017 judgment, which was on the applicability of Sarfaesi Act (bank securitisation law) to J&K and come back to the court with its view. The SC granted the Centre three weeks to formulate its response.

Article 370 has acquired permanent status: SC/ 2018

Dhananjay Mahapatra, Article 370 has acquired permanent status: SC, The Times of India


The Supreme Court said Article 370 of the Constitution, conferring special status on Jammu and Kashmir and limiting the Central government’s power to make laws for the state, had acquired permanent status through years of existence, making its abrogation impossible.

The observation came from a bench of Justices Adarsh K Goel and R F Nariman on a petition by Kumari Vijayalakshmi Jha, who sought a declaration that Article 370 was a temporary provision that lapsed with the dissolution of the J&K Constituent Assembly on January 26, 1957. She also sought a declaration that the constitution of J&K was void, inoperative and in breach of the Constitution.

The issue has acquired political overtones as there is a sharp divergence between the views of BJP and its partner PDP in J&K. The discussion also comes at a time when residency laws for J&K under Article 35A of the Constitution have been challenged for denying women marrying outside the state the right of inheritance and restricted employment.

Justice Nariman drew additional solicitor general Tushar Mehta’s attention to the SC’s 2017 judgment in State Bank of India vs Santosh Gupta case and said the controversy over Article 370 was settled by the court ruling the provision had acquired permanent space in the Constitution and it could no longer be abrogated.

The SC had said since the Constituent Assembly of the state ceased to exist, the President would not be able to fulfil the mandatory provision of getting its recommendation for its abrogation.

Appearing for J&K, senior advocate Rajeev Dhavan and additional advocate general M Shoeb Alam refuted the Centre’s claim that a similar petition was pending consideration before a bench headed by CJI Dipak Misra. Dhavan said the issue pending consideration related to validity of Article 35(c) of the Constitution and not Article 370. Mehta said the Centre would study the implication of the 2017 judgment, which was on the applicability of Sarfaesi Act (bank securitisation law) to J&K and come back to the court with its view. The SC granted the Centre three weeks to formulate its response.

State flag

2016 Jan: HC stays ruling on hoisting of state flag

The Times of India Jan 02 2016

Saleem Pandit

The Jammu & Kashmir high court on Friday stayed the December order of a single-judge bench directing that the state flag be hoisted alongside the Tricolour on official cars and buildings in line with the J&K constitution.

Justice Hasnain Masoodi had issued the order on a petition challenging the rescinding of a government directive, issued this March, that constitutional heads hoist the two flags together. The order was issued by the PDP-led government, before being cancelled a day later under pressure from ally BJP.

A division bench of the HC, comprising justices B L Bhat and Tashi Rabstan, also stayed Masoodi's comments that the state constitution's sixth amendment in 1965 -replacing the Sadr-e-Riyasat with a governor -was “unconstitutional“, and that Article 370 cannot be abrogated, repealed or even amended.

They issued notices to the relevant parties seeking their response in four weeks, after which the bench will hear arguments in the case.

BJP functionary Farooq Khan, a retired IPS officer, had challenged Masoodi's order.Khan's lawyer Sunil Sethi said the division bench's order was a “face-saver for BJP“, whose ministers in the state had refused to use the state flag. The BJP member had argued that no flag could have the same place as the Tricolour.

State Subject law

This is a collection of articles archived for the excellence of their content.

State Subject law

Does domicile certificate dilute State Subject law ?

K B Jandial , Does domicile certificate dilute State Subject law ? "Daily Excelsior" 4/1/2017


There appears to be no end to controversies in Kashmir that vitiate the peace and tranquility of once called “Paradise on Earth” more often than not. The enemies of peace in almost every situation are no other than the separatists who claim to represent the sentiments of a particular segment of population that sells the unachievable idea of “azadi” and in the process ruin Kashmir’s peace and economy.Mainstream opposition parties too don’t miss opportunities to exploit such public protests to run down the Govt of the day.

After a prolonged turmoil following Burhan Wani’s killing in an encounter that spread over the entire tourist season and working period, Kashmir is again on the threshold of a new phase of disturbances. This time, the issue raised by separatists is the grant of Domicile Certificates to the West Pakistan refugees living in Jammu for the last seven decades without any tangible rights akin to “State Subjects” due the State’s old peculiar law that confers special privileges to them to the exclusion of other Indian citizens. Surprisingly, the 3-time CM and the president of State’s premier and secular party, Dr. Farooq Abdullah too has lent his weight to the separatists on this issue claiming it as “dilution of State Subject law and identity”.

Indeed,the special PRC law is discriminatory in nature but has constitutional protection. Consequently, these refugees have been deprived of basic rights but however,are entitled to rights available to other Indian citizens like jobs that are not under the State Govt and participation in Lok Sabha election.

In the deplorable phase of communal frenzy and bloodbath that marked the birth of two nations in 1947, non-Muslims migrated from Pakistan to different parts of India. Out of about 47 lakhs Hindus and Sikhs who migrated to safer locations in India as refugees, 5764 families mainly from Sialkot, one of the richest cities of West Pakistan, and Shakargarh had entered Jammu. It was Sheikh Abdullah who was then heading the State administration, allowed the refugees to stay in the border villages. Today, their number is 19760 families including 20 Muslims. Barring these families, all other refugees who migrated to other parts of the country have since assimilated into their new homes without carrying any taboo of being ‘refugees’. But this was not so in Jammu where they are ‘alien in their own country’.

Political leaders continued to roll out promises to these unfortunate refugees for their permanent solution but the State laws and Kashmir leadership always came in the way. No political leader in India or J&K had courage to brush aside all these obstructions; legal or political, and do justice to them. Modi during his election campaigns in Jammu in 2014 and 2015 too parroted similar promise to them as also other categories of refugees in the Jammu. The PDP-BJP Agenda for Governance also included this issue for action. It records under heading “Social & Humanitarian Initiatives” that “For the deprived groups, the coalition Government will work out a one-time settlement for refugees from Pakistan Occupied Kashmir of 1947, 1965 & 1971; take measures for sustenance and livelihood of the West Pakistan refugees…”

A pleasant announcement came in early December 2016 that the State Government would issue Domicile Certificates to all these refugees who could not be given Permanent Resident certificates under State laws. Naib Tehsildars were authorized by the State Govt to issue certificates whose format too has been communicated.Even as citizens of India they were facing problems in getting Central Government jobs for want of domicile certificate. The certificate records their original place of residence in Pakistan before migration and the present place of residence. It verifies two facts, one is that the certificate holder is a Displaced Person (DP)from West Pakistan and the second is the present domicile. It is not Permanent Resident Certificate which has its own history and legal requirements.

It was in 1927 when the local people agitated to the Maharaja Hari Singh that Punjabi were coming to J&K to grab major share of jobs and acquire land that deprived the natives of these limited opportunities. Kashmiri Pandits who constituted the major educated class amongst the locals were the worst affected by this trend. To protect the interests of the locals, a State notification bearing No. I-L/84 dated 20th April, 1927 was issued followed by another State Notification No 13/L dated 27th June, 1932 that categorized the residents in Class I, Class II and Class III. This law was allowed to continue even after Independence to protect the interest of the ‘State Subjects’ under Delhi Agreement of 1950 and subsequently by the State and Union Constitutions.

Section 6 of State Constitution defines the Permanent Residents as “(1) Every person who is, or is deemed to be , a citizen of India under the provisions of the Constitution of India shall be a permanent residents of the State, if on the 14th day of May, 1954- (a) he was a State Subject of Class I or of Class II: or (b) having lawfully acquired immovable property in the State, he has been ordinarily resident in the State for not less than ten years prior to that date…”

Section 8 of the Constitution empowers the State Legislature to “make any law defining the classes of persons who are, or shall be, permanent residents of the State,” while Section 9 gives power to legislature to (a) ” defining or altering the definition of the classes of the persons who are, or shall be, permanent residents of the State: (b) conferring on permanent residents any special rights or privileges” (c) regulating or modifying any special rights or privileges enjoyed by the permanent residents”

The State Constitution did not define ‘Permanent Residents’ but referred to the Maharaja’s notifications of 1927 & 1932. These privileges and rights are in gross violation of the fundamental rights of Indian citizens being discriminatory on grounds of place of birth (Art. 15 (1), equality of opportunities for employment (Art. 16 (1), right to acquire, hold and dispose of property ( Art. 19 (1) ( f), and right to reside and settle in any part of India ( Art. 19 (1) ( e).The Govt of India had agreed to protect these special rights of the’State Subject’ but to avoid misunderstanding the words ‘State Subject’ were agreed to be substituted by words ‘Permanent Residents’ even in the State Constitution. With the Constituent Assembly ratifying the Accession on 5th February, 1954, and issuance of Presidential Order on May14, 1954 under Article 370, Part-II of Indian Constitution was extended from May 14, 1954 recognising ‘State Subjects’ as Indian citizens from Jan.26, 1950, but Part-III ( Fundamental rights) extended from the date of issuance of the Order i.e May14, 1954. Consequently, the Constituent Assembly made related provisions for ‘ Permanent Residents’ by inserting Sections 5A to 5F first in the Kashmir Constitution Act of 1939 under which the State was run till the new Constitution of the State was adopted and enforced on Jan 26, 1957.

It is noteworthy that special rights and privileges to ‘Permanent Residents’ under State Constitution are not static and can be ” defined and amended” by the State legislature in terms of the power conferred on it by Sections 8 & 9. So, the Legislature can define ‘Permanent Residents’ to include or exclude any group of people on any exigency. The State had used this power once for granting ‘Permanent Resident’ status to Tibetan Muslims in Kashmir. They were not only settled in a separate Tibetan Colony in Srinagar but also allowed jobs under the Govt. No issue, it was compassionate consideration. But why West Pakistan refugees were deprived of this facility? Is their religion a real problem?

Separatists are fueling the issue of Domicile Certificate to West Pakistan refugees in Jammu by misleading people of Kashmir that it would change the demography of J&K. As per 2011 Census Report, the Muslim population the State was about 68% (85.67 lakh out of total population of 1.25 cr with decadal addition of 17.74 lakh against 5.61 lakh of Hindus),and how can less than 20,000 Hindus and Sikh families living here since 1948 would change the demography? They are motivated by more of communal consideration and not as much of claimed change of demography or any other rationale. Moreover, Domicile Certificate is neither PRC nor the State PRC law changed to bring these DPs in the fold of the State. This is sheer disinformation.

Why the separatists and other mainstream Kashmir centric parties are silent on the increasing presence of Rohingya and Bangladeshi refugees in Jammu? Is their silence because of their being co-religionists?

According to Govt. figures given in the last session of the Assembly, about 13,400 Rohingyas and Bangladeshi refugees are living in Jammu. Bathindi, a Muslim colony in Jammu city, alone housed 686 Rohingyas. This ethnic group, along with thousands of their Muslims was forced to leave their homes after a crackdown on them by the Myanmar junta about five years ago. Despite illegal settlers in Jammu they talk about”Jammu being hundred times better than their native Myanmar as all religious groups live here in harmony”. However, security agencies view them as a security risk in view of Pakistan’s exploitation of vulnerable groups for subversion.

NC is gearing up for bigger ruckus in the budget session of the State Legislature, making it an issue of “dilution of State’s special identity”. But how? It is never explained. While this unlawful settlement of foreigners is going on for last four to five years but both BJP Govt in the Centre and now in the State is maintaining intriguing silence of fast changing demography of the Winter Capital.

Many of the womenfolk amongst them have married the local Muslims and thus legally became ‘State Subjects’ while their relations have bribed their way to get this status through manipulation. Obviously, the separatists and Kashmir based parties don’t view this trend as threat to demographic structure of J&K.Even if the people of Kashmir may not fall in the trap of separatists for another spell of upheaval, the stand taken by them have exposed their communal politics.


Confusion in PRC for discriminating women

Dr Ganesh Malhotra , 90 years of confusion in PRC for discriminating women "Daily Excelsior" 21/4/2017


On 20th April 1927 Maharaja of J&K issued a notification with The Notification No.1-L/84. The definition of State Subject has been sanctioned by His Highness the Maharaja Bahadur vide Private Secretary’s letter No.2354 dated 31 January, 1927 to the Revenue Member of Council. It divided persons into four classes which includes persons born, settled, permanently residing and companies registered with the State.

Subsequently, His Highness the Maharaja Bahadur issued Notification on 27 June 1932 and 14 March, 1939 published in the Government Gazette No.13-L/1989 dated 24 March 1989 to determine the status of Jammu and Kashmir State Subjects in foreign State as to the position of their nationals in the State, that all the emigrants from the Jammu & Kashmir State to the Foreign territories shall be considered State Subject and also the descendents of these emigrants born abroad for two generations.

In 1954 Government of J&K passed PRC law to further define the Permanent residents of Jammu and Kashmir.

Any person who is or is deemed to be the citizen of India under provisions of constitution of India shall be permanent resident of State if on the 14th day of May 1954.

(a) Was a State subject of class I or class II

(b) Having lawfully acquired immovable property in the State, he has been ordinarily resident in the State for not less than ten years prior to the date.

(c) Any person who before 14th day of May, 1954 was a state subject of class I or class II having migrated after 1st day of March, 1947 to the territory, now included in Pakistan returns to state for resettlement in the state or for permanent return under the authority of any law by this State legislature shall on such return be given PRC.

State Subject of Class I or II shall have the meaning assigned in the {State Notification No.L/84 dated.20-4-1927 read with State Notification No.13/L dated.27th June 1932.

All the laws framed by Maharaja Hari Singh or subsequent Government were Gender neutral. They defined the Permanent resident not Male permanent resident or female resident. But later on notwithstanding anything in PRC act the concept of “Valid Till Marriage” got introduced in it without any legal sanction.

Up to 2002, the Revenue Department was issuing Permanent Resident Certificates (PRCs) to the female residents of Jammu and Kashmir with the endorsement as “Valid Till Marriage”. This became ground for a petition before the State High Court about 15 years back whereby selection of a doctor was challenged on the plea that she was married to non state subject.

The judgment of Single Judge whereby selection was quashed was challenged in the Division Bench of J&K High Court and keeping in view the involved legal issue a Full Bench comprising of Justice V Jhanji, Justice T Doabia and Justice M Jan was constituted.

The reference before the Full Bench was: “Whether the daughter of a permanent resident of the State of Jammu and Kashmir marrying a non-permanent resident loses her status as a permanent resident of State, to hold, inherit and acquire immovable property in the State?”

In view of the majority opinion, the Full Bench in a case titled Jammu and Kashmir Versus Dr Sushila Sawhney and Others held that a daughter of a permanent resident marrying a non-permanent resident will not lose the status of permanent resident of State of Jammu and Kashmir. Though the State Government initially filed Special Leave Petition (SLP) in the Supreme Court against the verdict of Full Bench of J&K High Court but later withdrew the same after making an opinion that it will carry out necessary amendments in the Act governing issuance of PRCs.

In March 2004, an attempt was made by the PDP-led Coalition Government to bypass the High Court’s landmark judgment. It moved an official Bill after the tough stand of Hon’ble Supreme Court which was passed in a record 6 minutes.

But the Bill was declared “defeated” in the Legislative Council. The main reason was that the bill had created a storm in Jammu and at the national level as anti-women, reactionary and out-dated.

The collapse of the Bill further embittered the tense relations between the NC and PDP, which mutually accused each other of ensuring its collapse. The National Conference expelled its member from the party on charges of hobnobbing with Congress and the PDP to bail out the Government.

But the defeat of the Bill did not deter the Coalition Government. Instead of implementing the High Court verdict, officials in the Revenue Department continued to endorse “valid till marriage” on the State Subject Certificates issued to unmarried daughters of State Subjects.

In Hari Om vs. State of J&K & others (PIL No. 1002/2004 & CMP No. 1089/2004), the Double Bench comprising Justices V.K. Jhanji and Y.P. Nargotra, in its interim judgment on Sept. 24, 2004, ruled: “In the meantime, respondents (State of J&K & others) are directed not to make any endorsement of ‘valid till marriage’ on the State Subject Certificate issued to unmarried daughters of State Subjects”.

The State Government did not implement the interim order, and dismissed the judgment with contempt. On Jan. 27, 2005, Commissioner/Secretary to the Government, Revenue Department, issued circular No Rev (LB) 87/74 asking the State Subject Certificate issuing authorities to make endorsement: “The certificate may be reissued after marriage to indicate if the lady has married a State Subject or non-State Subject”.

The petitioner again knocked at the doors of the High Court and sought contempt proceedings against the J&K Government, via PIL (COA (PIL) No. 2/2005). The matter went to the Double Bench comprising Justices V.K. Jhanji and Parmod Kohli. On July 11, 2005, the Bench stayed implementation of the impugned anti-women circular and issued notice to the J&K Government. This had its impact on the J&K Government and on Aug. 2, 2005, it withdrew the circular vide No. Rev/PRC/04-WP. On Aug. 8, 2005, Justices V.K. Jhanji and Y.P. Nargotra ruled: “In view of circular dated 2nd of August, 2005, passed by respondents (read J&K Government), the grievance of the petitioner (read this writer) stands redressed and, therefore, this Public Interest Litigation as well as the contempt petition are disposed of having been rendered in-fructuous. Rule, if any, issued is discharged.”

Thus the J&K High Court on four occasions delivered judgments aimed at ensuring gender equality. The judgments were unambiguous and were hailed by one and all.

Unnecessary confusion has been created to implement the judgement of Hon’ble High Court in Dr Susheela Sawney case and thereafter. After 12 years of Judgement the situation seems to be at the same point.

A lady, who has been married to a non-state subject, approached the office of Governor Office after Jammu and Kashmir Service Selection Board (JKSSB) refused to recommend her name to the education department for being allowed to join as Teacher.

According to her application, she had got selected as teacher and when she approached SSRB for her recommendation letter, SSRB refused saying that the same cannot be issued since she had married a non-state subject and her state subject certificate was not valid anymore. Peeved at this, the lady approached the office of Governor, pleading him to intervene for getting her issue resolved.

Hon’ble Governor immediately wrote to the state government advising the issue be resolved immediately in the light of the judgment in the case of Dr. Sushila Swahney wherein High Court had said that a woman does not lose her state subject on marrying a non-state subject. But the judgment had remained silent on issue of children of female state subject married to a non-state subject.

The committee has been constituted to examine the case of lady in details besides laying down clear cut guidelines and rules for woman who get married outside the state to non-state subjects. It is believed that the committee would deliberate on the issue of status of the women who marry non-state subjects and then either get widowed or divorced. The committee would also look into the status of the children of these widows and divorcees.

The questions are

1. The guidelines for issuance of Permanent Resident Certificates (PRCs) are clear. They are the same for issuance of PRCs for both males and females. Then why different interpretation for the issuance of females? Are there any separate guidelines for issuance of PRC for Males?

2. The endorsement “Valid Till Marriage” was held ILLEGAL, WRONG and not done in accordance in existence with ANY LAW IN EXISTENCE at the time the JUDGMENT was delivered. So when judgement is clear why so confusion till now?

3. When children of a permanent resident are entitled to get PRC on the basis of PRC parent then why so categorisation of Male PRC parent or female PRC parent. Obviously as permanent resident both male and female enjoy same rights. So the spouse of permanent resident are also entitled to get same rights irrespective of male or female.

The law framed by Maharaja Hari Singh 90 years back in 1927 was clear about State Subject and was Gender neutral and subsequent law of 1932 bestows rights on next two Generations also. Even the PRC act of 1954 talks about permanent resident not male PRC or female PRC then why so unnecessary confusion is being created to discriminate the women of their legitimate rights. This should end to restore all rights available to women under Constitution of India and PRC act as permanent resident.

See also

Jammu & Kashmir: Constitutional issues

Jammu & Kashmir, constitutional issues: Sovereignty of J&K's constitution

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