Section 6 of the constitution of Jammu and Kashmir defines who qualifies as a permanent resident of Jammu and Kashmir. According to section 6, on the 14th of May 1954, those who were State Subjects of Class I or of Class II or those who have lawfully acquired immovable property in Jammu and Kashmirand have been residing in the State for at least ten years prior to 14th May 1954, were deemed to be permanent residents of Jammu and Kashmir. Also, if any Class I or Class II state subject migrated to Pakistan during partition and wishes to return permanently to Jammu and Kashmir, he or she will be given the Permanent Resident Certificate. Section 8 of the Jammu and Kashmir constitution gives the state government overriding power to make any law defining the classes of people who are permanent residents. (Constitution of Jammu and Kashmir)

Daya Sagar in his book ‘Article 35A: Face the Facts’ co-authored with Jawaharlal Kaul described the insertion of Article 35A through a presidential order that was never discussed in the parliament. He explains that the article was introduced in an attempt to preserve the ‘Kashmiriyat’ of the residents of the state and to distance the state from India and prevent any demographic changes that would hamper the Muslim majority of Jammu and Kashmir.

He describes the violation of rights of certain communities that are not given Permanent Resident Certificate in the state. The West Pakistani Refugees, the Valimiki Samaj and the women in Jammu and Kashmirare victim of these draconian laws. He further describes the political response from Kashmiri leaders like Farooq Abdullah and Mehbooba Mufti to the notion of abrogation of 35A. He questions why the negative response to abrogation comes only from the Kashmir Valley and not from Jammu and Ladakh when these regions are equal stakeholders in the state of Jammu and Kashmir. He goes on to question the constitutional validity of the article itself and insists that it needs to be thoroughly inspected by the apex court i.e. the Supreme Court of India. (Kaul & Sagar, 2017)

The Jammu and Kashmir state legislature has passed a number of laws that discriminate against non-Permanent Resident Certificate holders, preventing them from getting adequate representation. For example, As per the Jammu and Kashmir Representation of the People Act, 1957, a non Permanent Resident Certificate holder shall be disqualified for registration in an electoral roll. The Jammu and Kashmir Panchayati Raj Act, 1989, disqualifies a non-permanent resident from being chosen as a member of a panchayat in the state. The Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956, specifies that no person shall be qualified for employment to any service by direct recruitment unless he is a Permanent Resident. (Nargotra, 2012)

In 2002, the Jammu & Kashmir high court passed a landmark judgment in the Susheela Sawhney vs. State of Jammu and Kashmir case. The question put before the court in this case was “whether the daughter of a permanent resident of the state of Jammu & Kashmir loses her status as a permanent resident of the state of Jammu & Kashmir on her marriage with a person, who is not a permanent resident of the State of Jammu & Kashmir?” The writ petitioner in the case, Dr. Susheela Sawhney was an ad hoc assistant professor in the obstetrics and gynachology department of Government Medical College in Jammu. However, Dr. Ravinder Maadan was eventually chosen as a permanent faculty member for the post. Dr. Susheela Sawhney challenged her selection on the ground that she was married to a non State Subject and hence had lost her Permanent Resident Certificate and the right to be employed as a professor in a government professional college. The single judge before whom the matter was placed nullified Dr. Madaan’s appointment to that post. The state as well as Dr. Madaan filed two separate appeals to the high court against the judgment of the single judge.

While considering this case, the court referred to a few cases of similar nature where women have lost their Permanent Resident Certificate after marriage to non-residents of Jammu and Kashmir, hence clubbing these cases together to pass this landmark judgment. One such case was the Harjeet Singh vs. Amarjeet kaur wherein the plaintiff Amarjeet Kaur insisted that under the Hindu Succession Act, she is a legal heir to her deceased father’s property just like the defendants were. However, she was being denied this inheritance because she had married a non-permanent resident of Jammu and Kashmirand lost her Permanent Resident Certificate. The trial Court declared that the plaintiff was entitled to inherit the property as an heir of her father, Ram Singh. Similarly, there were several other petitions that the bench referred to while passing the Susheela Sawhney judgment.

 

There were different opinions recorded during the course of this case. According to Learned Advocate General Mr. M.A. Ghoni, under section 6 of the Jammu and Kashmir constitution if a woman offspring of a permanent resident of the state marries a non-permanent resident, she would definitely lose the permanent residency certificate and position. Apart from losing the property which she might have attained before getting married, she would lose rights and privileges pertaining to governmental employment, right to subsidy or any similar benefit that the state government may offer. He stated that the status of the wife or widow is determined by the status of the husband.

On the other hand, Mr. Promod Kohli, who is a Senior Advocate argued that the Advocate General’s position leads discrimination based on gender. This would be conflicting with the provisions in the Indian Constitution as well as the constitution of Jammu and Kashmir. In fact, the preamble of the State Constitution has provided for equality of status and liberty. In addition to this, Section 10 of the Jammu and Kashmir Constitution states that the permanent residents of the State shall enjoy their rights guaranteed by the Indian Constitution.

The Jammu and Kashmir high court ruled that a woman who has inherited a Permanent Resident Certificate will not lose her permanent resident status upon marrying a man who is not a permanent resident of Jammu & Kashmir. The revenue authorities were prohibited from issuing the State Subject certificate to women with the words ‘valid till marriage’. The court did not mention the status of the children conceived in this kind of marriage. Thus, as per the law, the child of a women with Permanent Resident Certificate who marries a non-resident of Jammu and Kashmirwill not inherit the permanent resident status and will hence not be entitled to the rights and privileges that come along with being a permanent resident. (Susheela Sawhney Vs. State of Jammu & Kashmir, 2002)

In her Economic & Political Weekly article ‘Identity Politics and Regional Polarisation in Jammu and Kashmir’, Rekha Chowdhary describes the Disqualification Bill introduced in 2004 by the People’s Democratic Party (PDP) government in a attempt to undo the high court judgment in the Susheela Sawhney case. This bill introduced to disqualify women who marry non –residents of Jammu & Kashmir from retaining their Permanent Resident Certificate. It got complete support from the National Conference (NC) and was unanimously passed by the legislative assembly. Chowdhary mentions the political and public response to this bill that formed the subject of great controversy. She then goes on to describe the identity politics in Kashmir and the conflicts and discontent between Jammu and Kashmir. (Chowdhary, 2010)

 

References

Nargotra, S (2012) “A Study of West Pakistani Refugees in the State of Jammu and Kashmir” Border and People- An Interface (pp. 79-110)

Kaul J, Sagar D (2017) “Article 35A: Face the Facts” (ed 1) Jammu and Kashmir Study Center, New Delhi, Pragati Creations.

Susheela Sawhney vs State of Jammu and Kashmir LPA (sw) No. 27/79 C/w LPA (ow) No. 24/79 (Jammu and Kashmir high court October 07, 2002).

Chowdhary, R (2010) “Identity Politics and Regional Polarisation in J&K” Economic & Political WeeklyVol. 45, (pp. 15-20), Retrived from: http://www.jstor.org/stable/27806994