(A) Article 35A of the Constitution of
India. - 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 hereafter 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; or (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 provision
of this Part.”.
(B) Section 6 of the Constitution of
J&K. 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 of
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.
(C)Vide Constitution (Application to Jammu and Kashmir)
Order, 1954, in exercise of the powers conferred by clause (1) of Article 370
of the Constitution, the President (i.e. Central Government), with the
concurrence of the Government of the State of Jammu and Kashmir, was pleased to
order the insertion of a new Article namely 35A in the Indian Constitution. Thus, it was added
through an executive act and the procedure prescribed for amendment of the
Constitution of India under Article 368 was not followed/or was not required to
be followed in view of Article 370.
However, the manner of induction of said Article and vires/validity of
the provisions thereof have been put to a challenge before Hon’ble Supreme
Court of India and is still pending for adjudication.
(D) The existing legal regime (State Laws, Executive
notifications and orders etc) of J&K sets out that if a man is permanent
resident of J&K and he marries non-permanent resident woman of the State or
marries a woman outside the State, his wife is entitled to Permanent Resident Certificate
(PRC) and all the ensuing “privileges”. Children born from the wife will also
get the PRC rights in full in J&K. (viz. employment under the State
Government, right to hold, inherit and
acquire immovable property in the State;
settlement in the State; right to scholarships and such other forms of aid as
the State Government may provide; voting right etc). Conversely, if a woman who
is permanent resident of J&K marries a non-permanent resident man of the
State or marries a man outside the State, she loses her PRC and privileges it
entails. Hence, no question of PRCs to husband and children. No associated
benefits to them whatsoever. (E)
A Full Bench of
J&K High Court in State Of Jammu
& Kashmir vs Dr. Susheela Sawhney was called upon to decide a question as
to “Whether the daughter of a permanent
resident of State of Jammu & Kashmir losses her status as a permanent
resident of the state of Jammu & Kashmir on her marriage with a person, who
is not a permanent resident of the State of Jammu & Kashmir?”(Note: the
loss or absence of status as a permanent resident of the state of Jammu &
Kashmir disentitles a person not only in respect of right to hold , inherit and
acquire immovable property in the state but also in respect of employment in
the state and the right to scholarship and such other forms of aid as the State
Government may provide etc etc ). Vide a judgment dt 7 October, 2002, by 2-1
majority, the Bench of the High Court held that “a daughter of a permanent
resident marrying a non permanent resident will not lose the status of
permanent resident of the state of Jammu and Kashmir”.
(F) Thus, the rights of women married to
non-state subjects have been protected by virtue of the interpretation placed
by the Hon’ble J&K HC of the relevant laws/orders. But their children have
been left unprotected. Children whose
mother is a permanent resident but father a non-permanent resident are denied
the rights. Children have no right to inherit or own property, vote, get
admission to professional colleges and get government jobs in Jammu and Kashmir
even though they were born and brought up in the state. Their only fault is
that their mother had married a person who is not a permanent resident of Jammu
and Kashmir.
(G)
It is also noteworthy that in 2004, the state government led by Mufti Mohammad
Sayeed had introduced a Bill in the Legislature to take away the rights of
women who marry a non-state subject. The Bill, passed within six minutes in the
Assembly, was blocked in the Upper House because of a massive public protest.
Moreover, the Hon’ble Chief Minister of J&K Mehbooba Mufti had recently
remarked that all those who are opposed to Articles 370 and 35A and favor their
abrogation are “anti-nationals”. Interestingly, Farooq Abdullah (Prominent
politician & Ex CM of J&K) is married to an English woman Molly based
in London. Their Son Omar Abdullah (Ex CM) is married to Delhi based Payal Nath
and Daughter Sarah is married to Rajasthan based Sachin Pilot (Ex Union Minister).
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