The Hindu : J&K: legalised discrimination

Online edition of India's National Newspaper
Friday, Mar 26, 2004

Opinion

Opinion - Leader Page Articles

J&K: legalised discrimination

By Arvind P. Datar

There is no legal or moral justification for granting special rights to "permanent residents"and denying them to others.

THE JAMMU and Kashmir Permanent Residents (Disqualification) Bill 2004 that sought to disqualify permanent resident women who marry non-"permanent resident" men rightly created a furore throughout the country. There is no doubt that the Bill will seriously prejudice the property rights of permanent resident women who marry men who do not enjoy identical status.

Persons who are not permanent residents are second-class citizens in the State. Despite being citizens of India, they do not have equal rights in several matters. In 1947, a large number of refugees from West Pakistan migrated to Jammu and Kashmir in the wake of Partition. Most of the refugees were Hindus and today they constitute about eight per cent of the population of the State.

As Jammu and Kashmir enjoys a special status under Article 370 of our Constitution, it also has the privilege of having its own Constitution, which came into effect on January 26, 1957. Section 3 of its Constitution emphatically declares that Jammu and Kashmir is and shall be an integral part of India. Section 6 creates a special privileged class of persons who are called "permanent residents."

Who are permanent residents? Permanent residents should be "State Subjects" of Class-I or Class-II category. The definition of Class-I or Class-II subjects depends on two notifications issued in 1927 and 1932. Persons who have been ordinarily residents in Jammu and Kashmir from May 14, 1944, and have lawfully acquired immovable property are also permanent residents. The definition of a "permanent resident," read with these two notifications, is rather lengthy and complex. The fact remains that most refugees who came into Jammu and Kashmir from West Pakistan after 1947 do not fall within this category.

Such persons suffer serious discrimination. For example, they are disqualified from registering on the electoral rolls under Section 12 (b) of the Jammu and Kashmir Representation of the People Act. Section 4 of the Land Alienation Act prohibits transfer of lands to any person who is not a State subject. Rule 17(a) of the Jammu and Kashmir Civil Service Rules provides for appointment by direct recruitment only to those who are permanent residents.

Not content with this, the Resettlement Act, 1982, permitted those who migrated to Pakistan as refugees to return to India under a permit for resettlement. Thus persons who left India 30 years ago could come back and become permanent residents, whereas people who had come to India in 1947 were disqualified.

The Resettlement Bill was presented to the then Jammu and Kashmir Governor, B.K. Nehru. He consulted Nani Palkhivala who took the view that the Bill would not stand scrutiny in any court. However, the Jammu and Kashmir Assembly passed the Act in 1982 and it was referred to the Supreme Court as Presidential Reference No.1 of 1982.

While the reference was pending, a person who migrated from West Pakistan and was not a permanent resident filed a writ petition before the Supreme Court. He pointed out that despite having been in India for 40 years, persons like him were denied basic rights including the right to acquire immovable property, right to employment, right to start an industry, the right to purchase transport vehicles and the right to higher technical education. (Bachan Lal Kalgotra vs State of Jammu and Kashmir AIR 1987 SC 1169).

As the Presidential Reference was pending, Kalgotra gave up the challenge to the Resettlement Act but requested the Supreme Court that persons like him who constituted eight per cent of the population be given the same rights as those who had migrated in the reverse direction — to West Pakistan in 1947 — and now wanted to return to India. The Court observed that they had a "justifiable grievance." The Supreme Court expressed the hope that the claims of persons such as Kalgotra would receive due consideration from the Government of India and the State of Jammu and Kashmir. The Supreme Court did not decide the reference and the Resettlement Act was challenged once again. The net result is that persons like Kalgotra continued to be denied the basic rights under our Constitution despite being citizens of India.

How is this discrimination permissible? In any other State, such laws would be struck down as unconstitutional almost automatically. Indeed, such laws would be void under our Constitution but Article 35A states that "notwithstanding anything contained in the Constitution of India," existing or future laws in Jammu and Kashmir cannot be challenged on the ground that they are inconsistent with, or abridge, any fundamental rights conferred on other citizens of India. Migrants from West Pakistan, who came to India in 1947, are Indian citizens and are entitled to the basic fundamental right to equality under our Constitution.

There is no legal or moral justification for granting such special rights or privileges to "permanent residents" and denying them to others. It is vitally necessary that Article 35A of the Constitution is struck down as unconstitutional at the earliest.

(The author is a Senior Advocate of the Madras High Court.)

Printer friendly page
Send this article to Friends by E-Mail

Opinion