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Indian Constitutional Law Review [ISSN: 2456-8325] Edition V [July 2018]

Published by Agradoot Web Technologies LLP

69

EVALUATING THE STATUS OF ARTICLE 35-A OF THE

CONSTITUTION OF INDIA

Dushyant Kishan Kaul

Student, 3rd

Year, Jindal Global Law School

ABSTRACT

Article 35-A, in recent times, has become one of the most controversial Articles in the Constitution of

India. This paper aims to trace its controversial history from a post-independence vantage point to

understand the context. This is one of the rare cases of the validity of a constitutional article being

decided upon by a constitutional bench of the apex court, as was decided by the Hon’ble Chief Justice

of India, Dipak Mishra, in 2017. This paper seeks to actively critique the Permanent Resident’s

(Disqualification) Act of 2004 and the legislative passage behind it. It argues that Kashmiri women

have been deprived of their basic right to own property after marriage to a non-resident. This brings

about a paradox, wherein power is sought to be given to this state in addition to the special status to

protect it; and yet the state legislature has brought about a legislation which ignores one of the key

components of the rights that ‘permanent residents’ enjoy. Hence, this paper calls for the restoration

of equal rights to own property in the state, and implores the judiciary to interpret Article 35-A in a

way that balances the interests of Kashmiri’s vis-a-vis other non-permanent residents residing in

other parts of the country.

Note: This topic is of particular significance to my personal identity, being a Kashmiri pandit

whose family was displaced during the mass exodus of Hindus from the valley in the 1990s…

INTRODUCTION

The right to decide who qualified as ‘permanent residents’ in the state of Jammu and Kashmir was

given to the state government during the formative years of our Constitution. The very enactment of

Article 35A was done in a way that circumvented ordinary parliamentary procedures. In this light, it is

still an open question as to whether the President has discretionary powers in modifying Articles, but

in introducing new Articles to the Constitution without the knowledge of the Parliament.

This question was addressed by the apex court in the 1961 case of Puranlal Lakhanpal v. President of

India156

wherein this modification power is allowed for already existing provisions, but not for

inserting new Articles. Hence, the enactment of Article 35-A rests on very fragile foundations. Post

the insertion of this Article considerable benefits have been enjoyed by ‘permanent residents’ in the

state. However, there have been enactments, such as those pertaining to property rights of women,

which have threatened the freedom of women in the state.

156 Puranlal Lakhanpal v. President of India, A.I.R. 1961 S.C. 1519 (India).



70

FACTUAL BACKGROUND

In the 1920’s, state residents started agitating for the protection of their rights, vis a vis the competing

claims of non-residents of the State. The Maharaja’s government passed a notification157

seeking to

define “state subject” under Class I, II and III. This, along with a subsequent state notification158

,

made up most of the citizenship laws in the State. It was based on the date of birth, the period of

residency and the date of acquiring property.159

After the Constitution of India came into force in

1950, the President, in concurrence with the Governor of the State, issued the Constitution

(Application to Jammu and Kashmir) Order160

, which listed the provisions of the Constitution, other

than Article 1 and 370, which were to apply to Jammu and Kashmir. The Union government does not

have power to make laws on citizenship in Jammu and Kashmir, as can be seen from Entry 17 of the

Union List161

, as can also be seen from the non-application of Part II to the State.162

This may have

been influenced by the reluctance of too much interference by the central government. It was also

seen that the rights of residents of this newly acquired state had to be protected.

Thus, Maharaja Hari Singh issued a Private Secretary’s Circular Order No. PS-2354 on January 31,

1927 to define a ‘Hereditary State Subject’ to include “all persons born and residing within the State

before the commencement of the reign of His Highness the Late Maharaja Gulab Singh Sahib

Bahadur and also persons who settled therein before the commencement of Samvat 1942 and have

since been permanently residing therein.” It had the effect of giving the authorities this power of

appointment provided it was certified that he should in fact be made a state subject post the due

enquiries.

The Notification I-L/84 of April 20, 1927 replaced this earlier circular and introduced categories of

state subjects. These classes were sought to be protected from exploitation by their rich neighbours

who could afford to buy property in the state and deprive state subjects of that exclusive benefit. 163

This had created massive problems for refugees as well, who had come into the state after 1944 and

before 1954. Additionally, they were denied voting rights in Assembly elections, not eligible for jobs,

higher education. Lastly, this porous category may undermine national security.164

157 Notification No. I-L/84, dated 20th April 1927. 158 State Notification No. 1-/L, dated 27th June 1932. 159 Sanjeev Nayyar, Everything you wanted to know about the Jammu and Kashmir Problem, First post, October

26, 2014 (Part V and VI) at pp.15-20. 160 The Constitution (Application to Jammu and Kashmir) Order, C.O. 10 of 1950. 161 INDIA CONST., List 1, Sch. 7. 162 JUSTICE A.S. ANAND, THE CONSTITUTION OF JAMMU AND KASHMIR: ITS DEVELOPMENT & COMMENTS 185-

88 (4th ed., Universal Law Publishing Co. Pvt. Ltd.) (2004). 163 JUSTICE A.S. ANAND, THE CONSTITUTION OF JAMMU AND KASHMIR: ITS DEVELOPMENT & COMMENTS 178-

80 (7th ed., Universal Law Publishing Co. Pvt. Ltd.) (2013). 164 Sanjeev Nayyar, Everything you wanted to know about the Jammu and Kashmir Problem, First post, October

26, 2014 (Part V and VI) at pp.15-20.



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Initially, the President had passed the Constitution (Application to Jammu and Kashmir) Order,

1950165

. However, this was repealed and replaced with the Constitution (Application to Jammu and

Kashmir) Order166

on the aid and advice of the then Prime Minister, Pandit Jawaharlal Nehru, to

incorporate this Article in the Constitution through Section 2(4)(j) of the same Order. By virtue of this

Article, the right to decide upon residency was conferred upon the state government. This came two

years after Nehru and Sheikh Abdullah, whereby citizenship was extended to ‘state subjects’ of

Jammu and Kashmir. The order, under Article 370(1)(d), that allowed certain Presidential “exceptions

and modifications” for the benefit of ‘state subjects’ in Jammu and Kashmir.167

Hence, in a way, the provisions of this Article as far as Jammu and Kashmir is concerned, cannot be

said to in excess of the powers of Article 370(1).168

Section 6 of the Constitution of Jammu and

Kashmir identifies permanent residents. There is no law on the subject, and the same has been left to

the state legislature as per Article 8 of the state constitution. By virtue of this agreement, this article

gives special right and privileges in settlement, employment, scholarships etc. to those coming under

this category. No one but state residents can permanently settle in the state or acquire property in the

state.169

The Agreement reached was that there would be common citizenship of permanent residents

if these special rights were given.

Another aspect worth examining is the interest of persons who left the state due to internal

disturbances during Partition. Article 7 of the Constitution refers to migrants of Pakistan who return to

India under a valid legal permit. It makes it clear that if such persons had migrated before 19th

July

1948 and were registered citizens, then they would be allowed to return if they did so on a permanent

return issued by the state authorities, or under a resettlement permit. There also exists a provision for

those who returned to the country after the aforementioned date. They could apply for citizenship

after residing in India for a minimum period of six months post their migration into India and before

the date of their application. However, it is the proviso to this Article that is most noteworthy. It

makes it considerably easier for ‘permanent residents’ of the State if they return to India. According to

the laws in India, these migrants are treated as citizens even if such persons did not register (if they

left after 19th July 1948). It is arguable that such ‘permanent residents’ in a way are exempt from these

formalities, as the Constitution facilitates their return.170

165 Later repealed by the Order of 1954. 166 C.O. 48, published with the Ministry of Law Notification No. S.R.O. 1610, dated the 14th May, 1954. Gazette of India (Extraordinary). 167 Krishnadas Rajagopal, What is Article 35A? The Hindu, August 26, 2017. 168 Vol.1, P.M. Bakshi et al., Constitution of India, Madras Law Journal (1997). 169 Article 35A explained: What gives Jammu and Kashmir residents a ‘special’ status? DNA, October 30, 2017. 170 JUSTICE A.S. ANAND, THE CONSTITUTION OF JAMMU AND KASHMIR: ITS DEVELOPMENT & COMMENTS 194-

95 (4th ed., Universal Law Publishing Co. Pvt. Ltd.) (2004).



72

In this backdrop, it is important to trace the ‘valid till marriage’ stamp in the context of citizenship of

women. Note III of the Notification dated April 20, 1927 was misinterpreted before and after the

coming of the 1957 constitution of Jammu and Kashmir, as it put in the term ‘permanent resident’

instead of ‘state subject’. It applied to state residents who had lived for a minimum of 10 years before

May 14, 1954. On March 25, 1969, the state government issued a circular to the government officials

to give women residents the certificates of permanent residents which would be ‘valid till marriage’

and subject to subsequent scrutiny depending on the status of their husbands. These women would

thus be denied employment, scholarships and other such benefits. This discriminatory provision,

however, was not extended to men when they went abroad or even to children conferred abroad.171

THE STATUS OF ‘PERMANENT RESIDENTS’

India follows a system of unitary citizenship and only Indian citizenship is recognized.172

For

permanent residents, an exception to the Constitution was carved out as they enjoy Part III rights as

well as all the other rights in the Constitution.173

However, there is anger among people because it has

been seen that Indian citizens are not ipso facto citizens of Jammu and Kashmir.174

Thus, in its current form, Article 35A allows this “special treatment in matters of

Employment under the State government.

Acquisition of immovable property in the State.

Settlement in the State.

Right to scholarships and such other forms of aid as the State government may

provide.”175

This special status to permanent residents is a noteworthy feature in the state constitution. It can

confer special rights or even impose restrictions in the areas mentioned above, notwithstanding the

fundamental rights in our Constitution.176

Case law overtime wrongly interpreted the legal provisions of the time. No provision in the 1927

Notification177

held that a woman would lose her right to property on marrying a non-permanent

resident, and this right continued to subsist as long as the woman was an Indian citizen; and did not

begin residing permanently outside the state upon the death of her spouse or the dissolution of

marriage.

171 Jasbir Singh and Anupama Vohra, Citizenship Rights of Women in Jammu and Kashmir: An Uncertain

Future, IJGS, 162-63 (2007). 172 SHIBNATH CHAKRABORTY, AN INTRODUCTION TO POLITICS 118 (15th ed). 173 K.K. WADHWA, CONSTITUTIONAL AUTONOMY- A CASE STUDY OF J & K 35. 174 Id. 175 DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA 4011 (8th

ed., Lexis Nexis Butterworths

Wadhwa Nagpur) (2008). 176 Id. at 6045. 177 Notification No. I-L/84, dated 20th April 1927 read with State Notification No. 13/L, dated 27th June 1932.



73

However, in Prakash v. Mst. Shahni178

, the High Court of Jammu and Kashmir applied Section 10 of

the British Nationality and Status of Alien’s Act, 1914 while interpreting the 1927 Notification179

.

They held that a woman acquired the domicile of her husband upon different domiciles before the

marriage, and that the same would be lost if daughters married outside the state. In essence, the

British system of domicile was followed to define the status of female state subjects.

This impugned decision was largely based on inapplicable British laws, and was corrected by the full

bench of the same court in State of J&K v. Dr. Susheela Sawhney180

. The following question was

addressed - “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 the State of Jammu and

Kashmir to hold, inherit and acquire immovable property in the State?”181

This case answered the

question of whether women would lose their rights as a permanent resident upon marriage to a non-

subject in the negative. In this case, the appointment of the petitioner to the post of an Assistant

Professor in the Government Medical College, Jammu was quashed due to her marriage with a non-

state subject. Led by Jhanji J., Doabia J. concurred but Jan J. dissented.182

The dissenting judge said

that he agreed with the majority insofar as inheritance matters would be governed by the personal law

of the deceased in matters of education, employment and other rights, but disagreed with allowing

women this right completely.183

The court held that women would not lose their right as permanent

residents on their marriage with persons who were not permanent residents of the state. They also held

that the earlier law was discriminatory as it allowed men from the state to marry women from outside

the state and retain their rights but the reverse was not true.184

Following fourteen writ petitions being

decided on September 7, 2002 the law was clear insofar in as it held Section 8 of the state constitution

allowed the state to make laws to deal with the status of female permanent residents when they

married non-permanent residents.185

It made it clear that women would not lose their status upon

marrying non-permanent residents.

Aggrieved by the decision, the state government filed a special leave petition to the apex court, which

was later withdrawn. This was after notice had been issued, but without any stay or operation order of

the judgment. This was probably because the chances of this petition succeeding were low. Moreover,

178 A.I.R. 1965 J&K 83. 179 Notification No. I-L/84, dated 20th April 1927 read with State Notification No. 13/L, dated 27th June 1932. 180 State of J&K v. Dr. Susheela Sawhney, (2003) 1 JKJ 35 (FB) (India). 181 Id. 182 The Jammu and Kashmir Permanent Residents (Disqualification) Bill, 2004: A Constitutional Perspective,

The Indian Law Institute, p.535. 183 JUSTICE A.S. ANAND, THE CONSTITUTION OF JAMMU AND KASHMIR: ITS DEVELOPMENT & COMMENTS 180-81 (7th ed., Universal Law Publishing Co. Pvt. Ltd.) (2013). 184 Sanjeev Nayyar, Everything you wanted to know about the Jammu and Kashmir Problem, First post, October

26, 2014 (Part V and VI) at pp.15-20. 185 Justice G.D. Sharma, Jammu and Kashmir Permanent Residents (Disqualification) Bill, 2004 is

Unconstitutional, (2004) 6 SCC (Jour) 23 -

http://www.supremecourtcases.com/index2.php?option=com_content&itemid=1&do_pdf=1&id=948.



74

there was no law that sanctioned the curbing of these rights. Rather, Section 22(d) of the Directive

Principles of the State Constitution called for full equality in all “social, educational, political and

legal matters.”186

In 2004, the Permanent Resident (Disqualification) Bill of 2004 was introduced by the government

headed by Mufti M. Sayed. Known as the women’s bill187

, Section 2 and 3 disqualified women,

specifically permanent residents, from retaining this status if they marry persons who are not state

subjects and are outsiders; but the same disadvantage was not imposed on men. The conditional

clause of certificates of being valid only ‘till marriage’ categorize as derogatory words and is highly

discriminatory towards women, as seen in numerous cases such as Anjali Khosla v. State of Jammu

and Kashmir188

.

A number of writ petitions had accumulated over time.189

Why this Bill is particularly problematic is

because it seeks to nullify the impact of the decision rendered by the full bench of the Jammu and

Kashmir High Court retrospectively (with effect October 7, 2002) from the date when the judgment

was passed.190

The parliamentary passage of the bill also created suspicion, as it was passed within six minutes of it

being moved and its voting. With the support of the Congress and the Nationalist Conference among

other parties, it was passed when the lone member of the Bharatiya Janata Party was absent. Opposing

factions, including many women’s organizations, lambasted the government for withdraw the special

leave petition against the court decision which clarified the position on women’s rights on the subject.

There is thus a debate regarding women’s rights as permanent residents on one hand, and protection

of interests of people of the valley and to uphold the special status given to the people under Article

370 of the Indian Constitution. 191

The concern was heightened even further because even the Permanent Residents Act, 1957 did not

authorize cancellation of a permanent resident certificate, except on serious grounds of fraud and

suppression of facts. The state high court had invalidated the initial executive order as it had no

legislative sanction as it had circumvented the deliberation and voting process. Moreover, it was a

186 JUSTICE A.S. ANAND, THE CONSTITUTION OF JAMMU AND KASHMIR: ITS DEVELOPMENT & COMMENTS 182

(7th ed., Universal Law Publishing Co. Pvt. Ltd.) (2013). 187 The Jammu and Kashmir Permanent Residents (Disqualification) Bill, 2004: A Constitutional Perspective,

The Indian Law Institute, p.534. 188 Anjali Khosla v. State of Jammu and Kashmir, O.W.P. No. 171/96 (India). 189 The Jammu and Kashmir Permanent Residents (Disqualification) Bill, 2004: A Constitutional Perspective,

The Indian Law Institute, p.534. 190The Jammu and Kashmir Permanent Residents (Disqualification) Bill, 2004: A Constitutional Perspective,

The Indian Law Institute, p.535-6. 191 The Jammu and Kashmir Permanent Residents (Disqualification) Bill, 2004: A Constitutional Perspective,

The Indian Law Institute, p.536-7.



75

blatant case of gender discrimination.192

These instances thus forced one to cast serious aspersions on

how secure permanent residents really are. There also seems to be a threat to Article 14, 15(1), 16(1)

as well as 19(1)(e) of the Indian Constitution. A harmonious construction of the Articles shows that it

falls outside the purview of Article 35-A of the Constitution.193

It is worth noting that this special treatment has been held to be permissible in, for instance, the case

of Sudeesh Dogra v. Union of India194

, where CAPF personnel injured in mob violence in the state

who were state subjects were awarded a higher quantum of compensation when compared to non-state

subjects. The court justified this separate treatment as a permissible classification under Article 35-A.

While preferential treatment is bestowed upon state subjects as in the aforementioned case, there has

been substantial criticism of Article 35A. This is because it is to be valid even though there may be no

‘equality before law’ as technically, permanent residents of one state should be treated at par with the

rest of the citizens. However, the counter-argument is that these residents need to be protected from

exploitation, as Kashmir lags behind in the educational and economic sectors when compared with

bordering states. This was done to equip them to compete with other states on a level playing field.195

However, these privileges may have been fine at the time of independence. The people of Jammu and

Kashmir are still given preferential treatment in government jobs and have the exclusive right to own

immovable property by virtue of a notification in 1927196

. Even if the General Assembly passed the

Convention on the Nationality of Married Women, which affirms the principle that the nationality or

her marital status should not affect her property rights.197

Another source of criticism is when one studies the constitutional aspect of this special status. Article

370 comes under Part XXI of the Indian constitution. Moreover, this status is temporary in nature, in

the hope for a moral permanent arrangement at some point in time. Clause (3) has a non-obstante

clause which gives an overriding effect to the President to pass any order to undo this status, making

clause (1) and (2) temporary provisions. Moreover, the state has its own constitution as well, and

many argue that there is no point countering the prevailing practice of women losing their rights under

given situations. However, this can be countered by saying that time is of no essence and every effort

must be done to right a wrong. In any event, the full bench of the Jammu and Kashmir High Court had

192 Balraj Puri, Permanent Resident Bill: Questionable Legal, Moral and Political Basis, Economic and Political

Weekly, Vol. 39, No.14/15 (April 3-16, 2004) – p.1456-1458. 193 Justice G.D. Sharma, Jammu and Kashmir Permanent Residents (Disqualification) Bill, 2004 is

Unconstitutional, (2004) 6 SCC (Jour) 23 -

http://www.supremecourtcases.com/index2.php?option=com_content&itemid=1&do_pdf=1&id=948. 194 Sudeesh Dogra v. Union of India, AIR 2014 SC 1940. 195 JUSTICE A.S. ANAND, THE CONSTITUTION OF JAMMU AND KASHMIR: ITS DEVELOPMENT & COMMENTS 192

(4th ed., Universal Law Publishing Co. Pvt. Ltd.) (2004). 196 Notification No. I-L/84 of 1927. 197 Balraj Puri, Permanent Resident Bill: Questionable Legal, Moral and Political Basis, Economic and Political

Weekly, Vol. 39, No.14/15 (April 3-16, 2004) – p.1456-1458.



76

clarified that no provision permitted this deprivation and was purely an executive action with no real

constitutional sanction.198

Nonetheless, there have been certain arguments in favor of the Bill as well. For instance, Jan J.

delivered the dissenting opinion in the Susheela Sawhney case199

. He subscribed to the view that Note

III was akin to the position of private international law, such that the permanent resident status was

acquired by a woman upon marriage, and thus could also be lost upon marriage to a non-resident.

Note III provided – “The wife or a widow of the State subject of any class shall acquire the status of

the 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.”200

But this position advocated by

the state was rejected by the majority opinion. Doabia J. gave a concurring opinion in the case and

held that Note III, by literary interpretation, did not deal with females marrying non-state subjects and

also continuing to reside in the state and this deprivation would have been expressly mentioned in the

statute had the requisite legislative intent been there. He further propounded on the meaning of the

word ‘acquire’ mentioned in the Note and distinguished it from ‘inherited’. He then held that what

was acquired could not be lost unless a specific ground of disqualification was mentioned. In addition,

the rule of private international law that the wife follows the domicile of her husband had been

disbanded in as “the most barbaric relic of a wife’s servitude.”201

Another argument favors the Bill through the sanction of the state constitution. It also argues this intra

vires aspect based on Article 35A (including its non-obstante clause) of the Indian constitution as

well, which immunizes the rights of permanent resident’s immune from any sort of constitutional

challenge. In other words, this category of persons is given rights in addition to those granted to

regular citizens, which can sometimes be exclusive as against non-permanent residents. However, this

advantage given to permanent residents in the Bill does not preclude constitutional attacks on

violations of fundamental rights on an Article 35-A defense.202

Hence, it is clear that the Permanent

Resident’s (Disqualification) Act of 2004 favors males by not imposing similar restrictions on them.

In addition, children of such male subjects will be state citizens. But the status of women remains

precarious.

APPLICABILITY OF FUNDAMENTAL RIGHTS TO KASHMIRI RESIDENTS

198 The Jammu and Kashmir Permanent Residents (Disqualification) Bill, 2004: A Constitutional Perspective,

The Indian Law Institute, p.539, 541. 199 State of J&K v. Dr. Susheela Sawhney, (2003) 1 JKJ 35 (FB) (India). 200 Jasbir Singh and Anupama Vohra, Citizenship Rights of Women in Jammu and Kashmir: An Uncertain

Future, IJGS, 161 (2007). 201 Formosa v. Formosa, (1962) 3 All E.R. 419. 202 The Jammu and Kashmir Permanent Residents (Disqualification) Bill, 2004: A Constitutional Perspective,

The Indian Law Institute, p.547-51.



77

According to the Order of 1950203

, Part III of our Constitution did not apply to the permanent

residents of Jammu and Kashmir. Even the Constitution of Jammu and Kashmir Act 1939 (Act IV of

1996) did not provide these rights to state subjects at the time. However, it is the rights and

privileges204

that they enjoyed in spite of this deprivation that is pertinent here. Though the order of

1954205

eventually made both part II and III applicable, the special treatment continued unhindered.206

Article 19 initially included the fundamental right to property, which was demoted to a legal right

pursuant to the 44th Amendment, 1978

207. The right, in its amended form, applies to the permanent

residents as well. But there is an additional restriction to the right, in matters related to the ‘security of

state’.

Rights enshrined in Part III of the Constitution are thus subject to Article 35A. Even if state

legislation conflicts with these rights, it does not become invalid.208

Residents of the state enjoy this

treatment owing to the circumstances in which the state is placed. As a result, citizens domiciled in

Jammu and Kashmir for over 40 years do not enjoy the rights under Part III of the Constitution, but

migrants who left in 1947 and have now returned; receive a special status under the state constitution.

Even the Supreme Court, in the case of Bachan Lal Kalgotra v. State of Jammu and Kashmir &

Ors.209

, opined that the state government must strive to solve this “cruel paradox”210

that has resulted

in this situation, and take suitable action to amend laws pertaining to panchayats, elections, land

reforms etc.

CURRENT SITUATION

In September 2017, an NGO by the name We the Citizens filed a petition on the constitutional validity

of Article 35A and Article 370 before the apex court. Among other things, the petitioners argued that

Article 370 in itself was only a ‘temporary provision’, and that the drafters of the Constitution,

including four representatives from Jammu and Kashmir, never intended for it to become a tool to

bring amendments, like those that brought in Article 35A.211

It also alleged that this Article, by

creating a “class within a class of citizens”, was against the “spirit of oneness of India” and violated

Article 14, 19 and 21 of the Constitution.212

203 Later repealed by the Order of 1954. 204 Notification No. I-L/84, dated 20th April 1927 read with State Notification No. 13/L, dated 27th June 1932. 205 C.O. 48, published with the Ministry of Law Notification No. S.R.O. 1610, dated the 14th May, 1954. Gazette

of India (Extraordinary). 206Status of Permanent Residents of Kashmir, SHODHGANGA (June 27, 2018, 1:21 PM),

http://shodhganga.inflibnet.ac.in/bitstream/10603/63964/12/12_chapter%205.pdf. 207 See the Constitution (44th Amendment) Act, 1978. 208 JUSTICE A.S. ANAND, THE CONSTITUTION OF JAMMU AND KASHMIR: ITS DEVELOPMENT & COMMENTS 214

(3rd ed., Universal Law Publishing Co. Pvt. Ltd.). 209 Bachan Lal Kalgotra v. State of Jammu and Kashmir & Ors., A.I.R. 1987 S.C. 1169. 210 ARVIND P. DATAR, DATAR ON CONSTITUTION OF INDIA (Millenium ed., Wadhwa and Co. Nagpur) (2001). 211 Krishnadas Rajagopal, What is Article 35A? The Hindu, August 26, 2017. 212 Id.



78

A second petition in the same year has been filed by Charu Wali Khanna, who argued that the basic

right to hold property in the state was being restricted. Article 6 of the Jammu and Kashmir

constitution denies the heirs of a native woman the right to property if she marries a person who did

not possess a permanent resident certificate. She further argued that her children would be denied the

benefit and would be considered illegitimate as a result.213

These two petitions were clubbed together

and referred to a three-judge bench. Justice Dipak Mishra had also said that the validity of those

Articles may eventually be adjudicated upon by a constitutional bench of the apex court.

CONCLUSION

It is clear that provisions for ‘permanent residents’ were made by the insertion of Section 5(A-F) of

the Constitution Act of 1939214

, which have had the effect of abolishing separate citizenship and

extending Indian citizenship to the state, with retrospective effect from January 26, 1950. It accords

special treatment to two classes of persons: ‘permanent residents’, and those who left the state due to

the internal disturbances in 1947. They are entitled to rights, privileges and other such obligations if

they return permanently or for resettlement.215

The constitutional provisions coupled with the case law at hand show that individual character of

permanent residents has been secured when it is in harmony with their common nationality under

Article 5 of the Constitution of India. The constitutional powers of the Union under Article 11 are

subject to the state constitution after the abolition of this separate citizenship, which accords a higher

standing to the state constitution. Women from the valley face a considerable disadvantage due to the

statute discussed above. Communities like the minority Kashmiri Pandits, who fled the region in the

1990’s, suffer even more due to the marriage of women to non-permanent residents. Moreover, their

return is even more difficult in lieu of these laws.216

213 Id.; Article 35A explained: What gives Jammu and Kashmir residents a ‘special’ status? DNA, October 30, 2017. 214 Constitution Act, 1939. 215 JUSTICE A.S. ANAND, THE CONSTITUTION OF JAMMU AND KASHMIR: ITS DEVELOPMENT & COMMENTS 174-

78 (7th ed., Universal Law Publishing Co. Pvt. Ltd.) (2013). 216 Jasbir Singh and Anupama Vohra, Citizenship Rights of Women in Jammu and Kashmir: An Uncertain

Future, IJGS, 169-70 (2007).

The Indian Constitutional Law Review ISSN: 2456-8325 | Edition V


Thanking Note

The Editorial Board, Student Coordinators and the Advisory Members of the

Indian Constitutional Law Review seek to express their gratitude to all members

and contributors who have made immensely valuable contributions to the growth

and evolution of the Constitutional law landscape of India. We express our

heartfelt gratitude to all Advisory Members who have provided their valuable

insights in the framing of this edition. The Student Editors have also played a

crucial role in the development and outcome of this publication.

AMIT SINGHAL

Editor-in-Chief

On behalf of the esteemed members of the Editorial Board, Honourable Members of the

Advisory Council & the members of the Publishing Unit

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