A shocking but little known provision of the Constitution of India permits and perpetuates grave injustice on almost 10% of the population of Jammu and Kashmir. In 1947, in the wake of partition, a large number of refugees from West Pakistan migrated and settled in the State of Jammu and Kashmir. After a lapse of 56 years since independence, they continue to be denied the most basic rights despite the fact that they are citizens of the Republic of India.
2. This pathetic anomaly is on account of the peculiar provisions of the Jammu and Kashmir Constitution. It creates ans invidious classification between persons who are permanent residents and those who are not so. Section 6 of the Jammu and Kashmir Constitution specifies who are permanent residents. The section reads as follows:-
“Permanent residents -
(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 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 that date.
(2) Any person who, before the fourteenth day of May, 1954, was a State Subject of Class I or Class II and who having migrated after the first day of March, 1947, to the territory now included in Pakistan, returns to the 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.
(3) In this section, the expression “State Subject of Class I or of Class II” shall have the same meaning as in (State Notification No.1-L/84 dated the twentieth April, 1927, read with State Notification No.13/L dated the twenty-seventh June, 1932).”
Section 6(3) refers to two State notifications based in 1927 and 1932. The 1927 notification read with the 1932 notification defines the persons who form part of Class-I and Class-II State subjects.
“The term State Subject means and includes - Class I. - All persons born and residing within the State before the commencement of the reign of His Highness the late Maharaja Ghulab Singh Sahib Bahadur, and also persons who settled therein before the commencement of Samvat year 1942, and have since been permanently residing therein.
Class II. - All persons other than those belonging to Class I who settled within the State before the close of Samvat year 1968, and have since permanently resided and acquired immovable property therein.
Class III. - All persons, other than those belonging to Classes I and II permanently residing within the State, who have acquired under a rayatnama any immovable property therein or who may hereafter acquire such property under an ijazatnama and may execute a rayatnama after ten years continuous residence therein.
Class IV. - Companies which have been registered as such within the State and which being companies in which the Government is financially interested or as to the economic benefit to the State or to the financial stability of which the Government are satisfied, have by a special order of His Highness been declared to be State Subjects.
Note I. - In matters of grants of the State scholarships, State lands for agricultural and house building purposes and recruitment to State service, State Subjects of Class I should receive preference over other classes and those of Class II, over Class III, subject, however, to the Order dated 31st January 1927 of His Highness the Maharaja Bahadur regarding employment of hereditary State subjects in Government service.
Note II. - The descendants of the persons who have secured the status of any class of the State Subjects will be entitled to become the State Subjects of the same class. For example, if A is declared a State Subject of Class II his sons and grandsons will ipso facto acquire the status of the same Class (II) and not Class I.
Note III. - The wife or a widow of a State Subject of any class shall acquire the status of her husband as State Subject of the same class as her husband, so long as she resides in the State and does not leave the State for permanent residence outside the State.
Note IV. - For the purposes of the interpretation of the term ‘State Subject’ either with reference to any law for the time being in force or otherwise, the definition given in this Notification as amended up to date shall be read as if such amended definition existed in this Notification as originally issued.”
The statutory provisions have been extracted in full so that readers may understand the shocking extent to which such discrimination continues to this day. Note-I categorically states that for grant of State Scholarships and recruitment to State Services, there will be preference to the Class-I category. As Scholarships and State jobs are limited, it follows that those who are not Class-I State subjects will not get any kind of State scholarship, State employment or any other benefit. Note-II creates a stratification and persons who belong to a particular class will permanently remain in that class. The secular brigade which periodically protests discrimination against dalits has not made even a single complaint against the provisions of Section 6 ofs the Jammu and Kashmir Constitution.
3. The net result of these provisions is that persons who are citizens of India are divided into two categories namely State subjects and those persons who are not lucky or privileged to belong to this class.
4. If such a law had been passed in any other State, it would have been struck down as being ultra vires the Constitution. Such a law would not have stood scrutiny even for a few minutes. But under Article 370 of our Constitution, Jammu and Kashmi has a special status.
Article 370 was introducted as a temporary measure in view of the political uncertainty that prevailed in Jammu and Kashmir. This Article severely limits the power of Parliament to make laws for Jammu and Kashmir. With all other States, Parliament can make laws for entries specifid in the Union List and Concurrent List. With regard to Jammu and Kashmir, the “concurrence” of the State Government is required before any Central Law can be made applicable to Jammu and Kashmir. This Article permits the passing of the Constitution (Application to Jammu and Kashmir) Order, 1956. This order makes number of changes in the Constitution and in the manner in which it applies to Jammu and Kashmir. Further changes were made in 1964. Shockingly, the Preamble of the Constitution states that India is a sovereign, socialist and secular republic. Up to 1976, the Preamble contained the words “unity of the nation”. This was changed to “unity and integrity of India”. For Jammu and Kashmir, the words “secular” and “integrity” is omitted. The most shocking modification to the Constitution is the introduction of Article 35A which permits the Jammu and Kashmir Legislature to pass any law even in violation of fundamental rights. Article 35A of the Constitution reads as follows:-
Article 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 hereinafter 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;
(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 provisions of this Part.
There is no other Constitution in the world which permits the denial of basic rights to a group of people. This injustice was sought to be perpetuated by the Resettlement Act, 1982. A reference was made to the Supreme Court to decide whether the Resettlement Act, 1982 was valid. Subsequently, the Supreme Court declined to go into the merits of this matter and there was a further proposal to implement it. It is reliably learnt that there has been a stay by the Supreme Court of implementation of this Act. The matter is still pending before the Supreme Court.
5. Till date, Section 6 of the Jammu and Kashmir Constitution continues to be applicable and so do the various rules and notifications that discriminate against refugees who came to Jammu and Kashmir over 50 years ago. To mention only a few disqualifications:
(a) Under Rule 17 of the Jammu and Kashmir Civil Service Rules, no person is eligible for appointment to any service by direct recruitment unless he is a hereditary State subject or a permanent resident.
(b) Under Section 4 of the Land Alienation Act, no land can be transferred in favour of a person who is not a State subject.
(c) Section 8(a) of the Village Panchayat Act provides that a person shall be disqualified from being chosen or as for member of the Panchayat if he is not a permanent resident.
6. These provisions were brought to the notice of the Supreme Court in Bachan Lal Kalgotra v State of Jammu & Kashmir AIR 1987 SC 1169. The court observed that no possible relief could be given to the petitioner and that only the Jammu and Kashmir legislature would have to take suitable action. It is impossible to expect this legislature to grant any relief or end such discrimination.
7. Finally, the only remedy is to directly challenge Articles 35A and 370 of the Constitution of India before the Supreme Court. There is no ground on which Article 35A can be sustained. Right to equality is part of the basic structure of our Constitution. It is for the Kashmiri Pandits to now approach the Supreme Court at the earliest and ensure that these atrocious provisions are struck down. In the past, the Supreme Court has protected the liberty of citizens on more than one occasion. The Kashmiri Pandits have a very strong chance of getting Article 35A struck down. Unless this is done, the future for millions of citizens of Jammu and Kashmir will continue to be bleak.