The Supreme Court of India has recently raised questions regarding the requirements outlined in the Constitution of Jammu and Kashmir for individuals seeking permanent resident status. This development comes in the context of petitions challenging changes made to Article 370 of the Indian Constitution.
One of the key issues under scrutiny is the condition that mandates property ownership for acquiring permanent resident status, a requirement that has been described as “odd” by Justice Sanjeev Khanna. This article delves into the implications of this questioning and the broader context surrounding the issue.
Justice Sanjeev Khanna’s characterization of the property ownership requirement as “odd” underscores the complexities and potential inequities within the Jammu and Kashmir Constitution. This requirement has long been criticized for creating barriers to permanent residency for certain individuals, particularly those who had to flee Pakistan-occupied Jammu and Kashmir due to challenging circumstances. Many Hindu and Sikh families who were displaced during these tumultuous times have been unable to return to their ancestral homes and have been denied various benefits that similarly placed displaced persons in the region have enjoyed.
Senior advocate Guru Krishnakumar has argued that this discrimination against Indian citizens stems from the operation of Section 6 of the Jammu and Kashmir Constitution and Article 35A of the Indian Constitution as applied to Jammu & Kashmir. These provisions empower the administration to systematically discriminate against certain individuals. Section 6, for instance, deprives those who were displaced by circumstances of the right to be permanent residents, despite their status as State subjects as of August 15, 1947.
Justice Khanna raised a pertinent question about the practicality of obtaining documents from 1927 to establish permanent residency. This highlights the challenges faced by those seeking to prove their ancestral ties to the region, especially when historical records may be scarce or difficult to access.
Another critical aspect of this legal debate is the sovereignty and legislative powers of the Union of India in relation to Jammu and Kashmir. Senior advocate Mahesh Jethmalani argued that the Constitutions of India and Jammu and Kashmir clearly establish that the Union of India is sovereign in the context of the region. He pointed to various provisions that recognize the ultimate legislative sovereignty of the Union over Jammu and Kashmir.
The role of the Constituent Assembly in Article 370(2) and the proviso to Article 370(3) has also been a subject of contention. Jethmalani argued that, in the absence of a Constituent Assembly, the Legislative Assembly of the State of Jammu and Kashmir should be considered synonymous with it.