Case Description

This case will decide if the laws of Jammu and Kashmir relating to permenant residency under the State are valid.  Specifically, the validity of  Article 35A of the Constitution of India, 1950 and Article 6 of the Constitution of Jammu and Kashmir, 1956 will be looked into. Both these provisions empower the State of Jammu and Kashmir to frame laws relating to: permanent residency of the State; confer special rights and privileges to the permanent residents.

Background

Four petitions have been filed before the Supreme Court challenging the constitutional validity of Article 35A of the Constitution.

 

Article 35A of the Constitution of India was introduced by the Constitution (Application to J&K) Order 1954, issued under Article 370. It empowers the State of Jammu and Kashmir to frame laws relating to permanent residency of the State and confer special rights and privileges to them. Accordingly, Article 6 of the Constitution of Jammu and Kashmir lays down conditions for obtaining permanent residency in the State and confers them with the right to own land, hold government jobs and settle down in the State.

 

Article 35A is primarily challenged on the ground that it was introduced through a presidential order passed in 1954 and not through legislative means.

 

The petitioners claim that Article 6 of the Constitution of Jammu and Kashmir discriminates against women and violates the right to equality.  A female descendant of a permanent resident of the State loses her status of permanent residency on marrying a non – permanent resident of the State. However, the same disqualification does not apply to a man who has marries a non-resident of the State. 

 

Note: The Constitution of Jammu and Kashmir defines a permanent resident as a person who was a state subject on May 14, 1954 or has been residing in the state for a period of 10 years and has lawfully acquired immovable property in the state. The origin of this provision can be traced back to a law passed by Maharaja Hari Singh to safeguard the rights and unique identity of the people of the State, particularly the Dogra community of Jammu and Kashmiri Pandits.

 

The State of Jammu and Kashmir has rebutted the contention that Article 6 violates the right to equality.  The State argued that the position in this matter has been settled in 2002 by the High Court of Jammu and Kashmir in Sushila Sawhney. The Court held that the daughter of a permanent resident marrying a non-permanent resident does not lose her permanent residency. Thus, Article 6 of the Jammu and Kashmir Constitution does not discriminate against women.

 

However, the Court in this case did not decide the matter of the rights of the children and spouses of such women.

 

The J&K government initially filed a Special Leave Petition against this decision but withdrew it. A Revenue Committee which was constituted to recommend guidelines on the issuance of Permanent Resident Certificate submitted its report; but did not seek any substantial changes in the law.

 

Ms. Khanna filed the writ petition after the J&K government refused to identify her as a permanent resident as she did not have any documentary evidence. She claimed that she has anecdotal evidence of her ancestry as a Kashmiri Pandit. She sought to build a home in J&K to re-establish her roots but being a non-permanent resident, she could not buy property.

 

The petitions came up before a 3-Judge Bench comprising Chief Justice Dipak Misra, and Justices A.M. Khanwilkar, D.Y. Chandrachud.

 

The matter has now been tagged with We the Citizens vs. Union of India (Writ Petition (Civil) No.722/2014).

Issues

Whether Article 35A of the Constitution of India is valid?

Whether Article 6 of the Jammu and Kashmir Constitution violates Article 14 of the Constitution of India?

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