CONSTITUTIONAL GOVERNANCE-II

CONCEPT OF SINGLE INDIAN CITIZENSHIP WITH RESPECT TO

PREMANENT RESIDENCE IN JAMMU AND KASHMIR
(Project towards partial fulfillment of assessment in the subject of Constitutional Governance-II)

Submitted to:
Professor K.L.Bhatia,
Faculty of Law (Constitutional Governance-II).
Submitted by:
Krati Chouhan
,
Roll No. 1061,
IV Semester, B.B.A LL.B. (Hons.).

NATIONAL LAW UNIVERSITY, JODHPUR

Citizenship consists in the service of the Country

-Jawaharlal Nehru

PREFACE
There is a belief, even among senior politicians, that with several features of the Constitution of
India having been made applicable over the years to Jammu & Kashmir State, Article 370 no
longer puts that State on a special pedestal and, therefore, the Articles continuance need no
longer be a bone of contention. The truth is otherwise. For instance, the average educated Indian
believes that every law of the Parliament is applicable throughout the country, including the State
of Jammu & Kashmir.
Nothing is further from the truth. Using the freedom provided by Article 370, the J&K State has
not accepted Indian Penal Code, Prevention of Corruption Act, 1988, and several other laws
passed by the nations Parliament. Another truth is that, because of the leeway provided by
Article 370, the Jammu & Kashmir State governments have, down the years, declined the
applicability of dozens of other Articles of the Indian Constitution to their State or accepted them
in only a modified form. A glaring example of this is that while the Preamble of the Indian
Constitution proclaims the Union of India as being Secular (whatever that may mean), the
corresponding Preamble of the J&K State Constitution does not avow that the State is Secular.
There is the notion that Article 370 protects Muslim interests and therefore ought not to be
abrogated. The truth is that the continuance of Article 370 for Jammu & Kashmir State in no way
benefits the Muslims in the rest of the country while simultaneously forcing the Muslim majority
of that State to continue living relatively isolated from the rest of the entrepreneurial and
innovative Indian people. There is, lastly, that old perception that it is Article 370 which prohibits
anyone from outside Jammu & Kashmir State from acquiring immovable property in that State.
The truth is that no such prohibition exists in any clause of Article 370 itself ! The above truths
and some others were rediscovered and fine-tuned in the course of an in-depth study of Article
370 undertaken by me at the suggestion of Vinay Sahasrabuddhe of Rambhau Mhalgi
Prabodhini. These are now presented before the public so as to enable it to react to the whole
truth of what must be the most complex, controversial and carcinogenic Article of the
Constitution of India.

HISTORICAL BACKGROUND OF ARTICLE 307

Article 370 is arguably the most contentious provision of the Constitution of India. It deals
exclusively with Jammu & Kashmir state that came under administrative control of the
Government of India after the countrys 15-month war that Pakistan started in 1947 to seize
sovereignty over that State.
Besieged by controversy right from its draft stage, Article 370 has been the subject of heated
debate ever since the Constitution came into full effect from 26th January 1950. While one
section of the Indian polity has strongly demanded its abrogation, some others have vehemently
opposed this demand; why, in 1999, Farooq Abdullah, the States then Chief Minister, even
threatened a revolt if the Article were revoked. Strange as it may seem, the origin of Article 370
can be traced to the British Raj in India.
This section shows how and why it is so. Prior to the partition of 1947, the British control over
what was then known as India extended to two very different sets of geographical regions. One
of these two comprised the various provinces that were administered in all respects by the British
Parliament through its nominated representative designated as the Viceroy of India. This group
of provinces was known as British India and constituted 60% of the land area of the subcontinent. The rest of the 40%, containing 100 million of the subcontinents total of 400 million
inhabitants, was ruled by the princes Maharajas, Nawabs, Rajas and so on, each with a
medieval territorial monarchy. There were in all 562 such princely states ranging in size from
Hyderabad and Jammu & Kashmir, each of which was almost as big as mainland Britain, to mere
dots on the map. Of this total, 327 were petty States whose average area was about 20 square
miles, average population about 3000, and average annual revenue about Rs. 22,000. All of them
were collectively designated simply as Indian States by the British. All rulers of these States
owed allegiance to the British Crown. The States were not directly ruled by the British and were
allowed governance in internal matters such as law and order, civil liberties, health, education
and economic development. But the British looked after the States for defence, foreign policy
and communications in return for which they each acknowledged British paramountcy through
individual treaties, their citizens were not British subjects, like the other Indians, but British
protected persons.
The British gave an Indian State and its ruler protection against neighbours and usurpers by
stationing company troops in its capital under the control of a British Resident. The troops were,

of course, very much a two-wedged weapon: while they were protecting the prince, they were
also keeping him in line, a privilege for which he was expected to pay! The case of Jammu &
Kashmir was very telling in this context. Although the British transferred the State forever to
Maharaja Gulab Singh for Rs. 75 lakhs under Treaty of Amritsar, 1846, and fixed a nominal
annual payment to protect his territories from external enemies, they appointed an Officer on
Special Duty who, from 1877, was placed directly under the Government of India.
In 1884, the British appointed its Resident in the State although a provision to that effect was
not a part of the Treaty. They wanted the Resident to be in complete charge of the State. Because
of a court intrigue out of the fact that the Maharaja had no son to succeed him, the British played
his brother against him, and pressurised him to accept an arrangement by which he was relieved
of all parts of the administration which was placed in the hands of Council of Regency under the
control of the Resident.
In 1889, the British deposed Maharaja Pratap Singh and restored him his throne in 1905 but
subject to the veto of the Resident3. On 20th February, 1947, His Majestys Government
announced that independence would be given to British India, the plan being to create two
independent dominions of India and Pakistan based on the Hindu and Muslim majority areas of
the various provinces that constituted British India4. With regard to the Indian States, the policy
was the one announced by the British Governments Cabinet Mission on 12th May 1946. Under
that policy, political arrangements between the States on the one side and the British Crown and
British India on the other were to be brought to an end. The rights surrendered by the States to
the Paramount Power would revert to the States when the Dominions of India and Pakistan were
created.
Thus, with the withdrawal of paramount, the princely States would become independent and the
communal basis of division of British India would not affect the States at all. Neither the Cabinet
Mission nor the British Government made any suggestion regarding the future of the princely
States except that they would become legally independent. The prospect of all 562 Indian States
exercising their independence was too mind-boggling. Imagine the chaos of fragmentation posed
by 562 pockets of sovereign States spread over the two Dominions of India and Pakistan.
Military takeovers and civil wars were on the cards.
Who knows, that may very well have been the objective of the British. It was V. P. Menon who
came up with a solution. As Secretary to Sardar Patels States Department, Menon proposed that

the princely rulers should be persuaded to hand over just three functions of their States to the
central government: defence, external relations and communications the same functions
which had been always exercised by the British government. His argument was that few, if any,
of the States were equipped to conduct their own defence and external affairs was, by definition,
tied to defence. Communications, which included postal services, telegraph and broadcasting,
railways and road links were the lifeline of the new nations and could not reasonably be left to
the whims of individual rulers. It was thus that the Instrument of Accession was born. Its draft
was circulated on 25th July 1947 when Lord Mountbatten, Viceroy of India and Crown
Representative, addressed the Chamber of Princes, a congregation of the rulers of Indian States.
This draft Instrument of Accession provided for the ruler agreeing to accede to either of the two
dominions while surrendering to the appropriate Dominion the power over three specified
subjects, without any financial liability. It finally came to be made under Section 6 of the
Government of India Act, 1935, as adapted by Section 9 of the Indian Independence Act, 1947.

PATELS BASKET OF APPLES

Sardar Patel had bluntly told Mountbatten that in return for their undersigned Instrument of
Accession, the Viceroy was free to offer the rulers, their titles, palaces, privy purses, their right to
British decorations and so on as long as Patel got his full basket of apples before the official
transfer of power occurred. So persuasive and aggressive was Patel that by 15 th August 1947, one
day before Independence Day, only three apples were missing from his basket: the small state of
Junagadh and the two large ones, Hyderabad and Jammu & Kashmir. How each of these three
came into the basket is a small saga by itself.
What has made the Jammu & Kashmirs Instrument of Accession absolutely special and unique
is that it is the only one around which the State chose to mould and build the signatory States
legal relations with the emerging Republic of India. Though all other Indian States joining the
Dominion of India signed an identical Instrument of Accession, none of them chose to live by it.
Jammu & Kashmir chose to act differently. It insisted that, as provided by clause 7 of the
Instrument of Accession, it was not committed to accept the future Constitution of India. Instead,
it decided to have its own separate State Constitution. This was made clear by the States four
representatives nominated to the Indian Constituent Assembly in June 1949 by the Yuvraj of

Jammu & Kashmir on the advice of his Council of Ministers of his States Interim Government
led by Sheikh Abdullah. They told the Indian Constituent Assembly that the Jammu & Kashmir
States association with India would be based only on the terms of the Accession, that the
States government did not accept the Constitution of India as a Constitution for the State, and
that, despite accession, the State was still to be governed by its old Constitution Act, 1939.
It came to pass therefore that while the Constitution of India was to become applicable not only
to the former provinces of British India but also to other princely Sates as full-fledged
constituent units of the Union, the Indian Constituent Assembly was compelled to make a special
provision to cover the particular and exceptional case of Jammu & Kashmir. Article 370 was
sown then.

PERMANENT RESIDENCE UNDER ARTICLE6-9 OF THE

CONSTITUTION OF JAMMU AND KASHMIR

Sections 6-9 of the State Constitution spell out the nature, content and context of permanent
residents of the State.
Though there is single citizenship, but sections 6-9 give the fiction-ridden impression that there
is dual citizenship. i.e., citizenship of India and separate citizenship for the permanent residents
of JK.
The language of Sections 6-9 could have been summed up in one Section, viz., the permanent
residents of J&K shall be the permanent citizens of India as defined in Articles 5-11 of the
Constitution of India.
This could have facilitated all citizens of India to integrate culminating into the complete
integration of JK to India, and there ought not have been the direct consequences of subversion,
secessionism, separatism, militancy, terrorism, and across border loyalties.

Section 6 of the Constitution of Jammu and Kashmir dealing with the definition of permanent
residents of the State runs as under:
6. 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 permanent resident of the State, if on the fourteenth day
of May, 1954
(a) He was a State subject of Class I or 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 twentieth April, 1927, read
with State Notification No. 13/L dated twenty seventh June, 1932.
Section8. Legislature to define permanent residents:-

Nothing in the foregoing provisions of this part shall derogate from the power of the State
Legislature to make any law defining the classes of persons who are, or shall be, permanent
residents of the State. .
Section9. Special prevision for Bills relating to permanent residents:A Bill making provision for any of the following matters, namely(a) Defining or altering the definition of the classes of persons who are, or shall be, permanent
residents of the State;.
(b) Conferring on permanent residents any special rights or privileges;
(c) Regulating or modifying any special rights, or privileges enjoyed by permanent residents;
shall be deemed to be passed by either House of the Legislature only if it is passed by a majority
of not less than two-thirds of the total membership of that House.
Such a Bill is deemed to be passed by either House of the legislature only if it is passed by a
majority of not less than 2/3rds of the total membership of that House. Section 10 of the State
Constitution guarantees to the permanent residents of the State all the rights guaranteed to them
under the Constitution of India.
Article I and Article 370 of the Constitution of India were extended to the State of Jammu and
Kashmir with retrospective effect from 26-1-1950. The Constitution of India was subsequently
made applicable in part only to the State of Jammu and Kashmir by the President of India by his
order passed on 15-5-1954. Chapter III dealing with fundamental rights was made applicable
with some modifications and additions. Article 35 was applicable with some modification and
Article 35-A was added with special application to the State. Similarly, Article 7 in Chapter II
was made applicable with further added proviso which had application in the State. Article 35-A
of the Constitution of India provides:
35-A. 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.
Similarly, Articles 10 and 11 of the Constitution of India have been extended to the State of
Jammu and Kashmir along with all the provisions of the Citizenship Act of 1955 w.e.f. 26-11950.
Sub-section (3) of Section 6 of the State Constitution provides that 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
twentieth April, 1927, read with State Notification No. 13/L dated twenty-seventh June, 1932. It
will be expedient to notice that the first statutory measure to define hereditary State subject was
taken by the order of Maharaja Hari Singh vide Circular No. PS-2354 dated January 31, 1927
and the definition of the expression hereditary State subject as contained in the second part of
the aforesaid circular order dated January 31, 1927 was as under:
For the purpose of this order the term hereditary State subject will be held to mean
and 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.

The State subjects were by these orders divided into three classes. State subject of Class I being
the same as the hereditary State subject defined in the earlier circular order and those of Class II
being the persons who settled within the State before the close of samvat year 1968 and have
since permanently resided and acquired immovable property in the State.
Notification dated 20-4-1927 was followed by Notification No. 13-L dated 27-6-1932 with a
view to determine the status of J&K State subjects in foreign State as to the position of their
nationals in the State of Jammu and Kashmir. For ready reference both these notifications of
Maharaja Hari Singh are reproduced here:

STATE SUBJECT DEFINITION

Notification dated 20th April, 1927 No. 1-L/84.The following definition of the term
State subject has been sanctioned by His Highness the Maharaja Bahadur (vide Private
Secretarys Letter No. 2354 dated 31st January, 1927 to the Revenue Member of the
Council) and is hereby promulgated for general information.
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 Gulab Singh Sahib Bahadur, and also person
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 Class I and Class II permanently
residing within the State, who have acquired under rayatnama any immovable property
therein or who may hereafter acquire such property under an ijazatnama and may
execute 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 are financially interested or as to 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 grant of State scholarship, State lands, for agricultural and house
building purposes and recruitment to State service, State subject 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 subject 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 of Class I.
Note III.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.
Note IV.For the purpose 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.

NOTIFICATION
(Issued by order of His Highness the Maharaja Bahadur dated Srinagar, the 27th June,
1932, 14th March, 1939, published in the Government Gazette dated 24th March, 1989.)
No. 13-L/1989 Whereas it is necessary to determine the status of J&K State subjects
in foreign State as to the position of their nationals in the State, it is hereby commanded and
notified for the public information as follows:
1. That all emigrants from J&K State to foreign territories shall be considered State
subjects and also the descendants of these emigrants born abroad for two generations:
Provided that, these nationals of Jammu and Kashmir State shall not be entitled to
claim the internal rights granted to subjects of this State by laws, unless they fulfil the
conditions laid down by those laws and rules for the specific purposes mentioned therein.
2. The foreign nationals residing in the State of Jammu and Kashmir shall not acquire
the nationality of Jammu and Kashmir State until after the age of 18 on purchasing
immovable property under permission of an ijazatnama after ten years continuous
residence in J&K State as laid down in Notification No. 1-L of 1984 dated 20th April,
1927.
3. Certificates of nationality of J&K State may, on application, be granted by Ministerin-charge of the Political Department in accordance with the provisions of Section 1 of this
notification.
Sub-sections (1) and (2) of Section 6 of the State Constitution do not apparently make any
provision for acquisition or loss of status of permanent residents of the descendants of the
permanent residents of the State. It is in fact Note II appended to Notification No. 1-L/84 dated
20-4-1927 which entitles the descendants of the persons who have cleared the status of State
subject of Class I or Class II to become State subjects of the same class.

There is no provision in Notification No. 1-L/84 dated 20-4-1927 or in the Constitution of

Jammu and Kashmir that on marriage with a non-permanent resident, the daughter of a
permanent resident shall lose her status as a permanent resident of the State to hold, inherit and
acquire immovable property in the State.
The status of being a permanent resident of the State which a woman acquires on her birth by
operation of law i.e. by virtue of Note II shall continue to hold as long as she remains a citizen
of India.
Undoubtedly, Note III of the above said notification dealt with the status of female non-resident
of the State being wife or widow of the State subject. She could retain the status of being a State
subject by her husband so long as she resided in the State and did not permanently reside outside
the State. If her marital relationship with a permanent resident of the State is broken by divorce
or on his death and she goes permanently to reside outside the State she will lose the status of
being a permanent resident.
Such a law was adopted by the Ruler to safeguard the interests of his subjects from the onslaught
of outsiders including the Britishers who always wanted to grab lands in the State situated in
picturesque places. To achieve this object many laws were enacted by him and after him by the
present ruling class after 1947. For example, Section 4 of the J&K Alienation of Land Act,
Samvat 1955 (1938 AD), Section 20 of the Big Landed Estates Abolition Act, Samvat 2007
(1950 AD), Section 4 of the Land Grants Act, 1966 (Samvat Bikrimi) and Section 95 of the J&K
Cooperative Societies Act, 1960. Section 17 of the Jammu and Kashmir Agrarian Reforms Act,
1976 imposes a complete ban on the acquisition of immovable property by the nonpermanent
residents of the State. Section 12(b) of the J&K Representation of the People Act declares that a
non-resident of the State is disqualified for registration in the electoral roll as a voter. Similarly, a
nonresident of the State is disqualified to hold any government job in the State.
The High Court of Jammu and Kashmir in the case of Prakashv. Shahni1, has interpreted these
provisions on wrong legal notions, because the Judges of the Division Bench had relied on
Section 10 of the British Nationality and Status of Aliens Act of 1914. In Shahni case1 there was
1 AIR 1965 J&K 83

a civil dispute between the parties with regard to landed property and that dispute had no
implications for public interests. The learned Judges had not adverted to the controversy with
reference to Section 6 of the State Constitution read with Notification No. 1-L/84 dated 20-41927 and Notification No. 13/L dated 27-6-1932. They had observed that a married woman
acquired the domicile of her husband if she had not the same domicile before marriage. Note
III of notification dated 20th April, 1927 was interpreted in the light of the British Act. After this
judgment the daughters of Jammu & Kashmir married outside were being debarred to inherit
ancestral property and losing the right to get government jobs and educational benefits are denied
to them. However, since then the English law has made fundamental changes in the domicile law.
In Formosa v. Formosa2, this rule of British law was much criticized as the most barbarous relic
of the wifes servitude and was abolished by Section 1 of the Domicile and Matrimonial
Proceedings Act, 1973. Now, the domicile of a married woman is to be ascertained in the same
way as the domicile of an independent person is ascertained. In the year 1968, the English law
had no relevancy in Prakash v.Shahni case1 and after 1973 that law itself has undergone a sea
change. In the case of State of J&K v. Dr Susheela Sawhney3 the Full Bench of the Court after
scrutinising the judgment of the case Prakash v. Shahni laid down the correct law. After this,
almost all the politicians of the present and past ruling class are saying that Maharaja Hari
Singh had enacted the laws himself to debar the daughters of J&K residents to inherit the
property of their parents in case they married outside the State. This is factually and legally
wrong statement which is providing fuel to separatist elements.
With the spread of education and consequent awareness of their legal rights many married
daughters from the majority Muslim community as well as the Hindu minority community
started raising their voices against such a discriminatory treatment. A few of them came to the
courts for seeking justice. Finally, after a long wait the Full Bench of the J&K High Court,
consisting of three Judges, decided fourteen such writ petitions on 7102002. It is held in this
decision that there is no provision in the existing law dealing with the status of a female

2 (1962) 3 All ER 419

3 (2003) 1 JKJ 35 (FB)

permanent resident who marries a non-permanent resident and that the State Legislature has
powers under Section 8 of the J&K Constitution to make such a law.
Taking a clue from the above said judgment the coalition Government has presented The J&K
Permanent Residents (Disqualification) Bill, 2004 in the Jammu and Kashmir Assembly.
This Bill was passed by the Legislative Assembly unanimously within six minutes. Now, it is
pending for consideration in the Legislative Council even after 6 hours discussions.
The aims and objects of the legislation as set out in the preamble are
A. Bill to provide for disqualification from being a permanent resident of the State on
marriage of a female permanent resident with a non-permanent resident.
On becoming an Act, it has to come into force with effect from 7th October, 2002 (the date of
delivery of the Full Court judgment). The Act shall have three sections. Section 1 deals with title
and commencement. Section 2 deals with disqualification and runs as under:
Notwithstanding anything to the contrary obtained in any law, notification or judgment,
decree or order of any court, a female permanent resident on her marriage with a person who is
not a permanent resident shall with effect from the date of such marriage cease to be a permanent
resident.
Section 3 provides for interpretation:
For purposes of this Act, the expression permanent resident means a person who is or is
deemed to be a permanent resident under Section 6 of the Constitution of Jammu and Kashmir
subject to the modification that a female permanent resident shall cease to be so on her marriage
to a person who is not a permanent resident.
A plain reading of these two sections of the proposed Act (Section 2 and Section 3) makes it
clear that the Act shall hit the relevant provisions of the Jammu & Kashmir Constitution and the
Constitution of India. The preamble of the State Constitution guarantees

justice, social, economic and political, equality of status and of opportunity and promotion
among all the residents of the State, fraternity assuring the dignity of the individual and the
unity of the nation.
The female members of the State shall not get social, economic and political justice. They will be
deprived of the right to inherit ancestral property; they shall lose government jobs and shall stand
disqualified to receive higher education and future government jobs and contest elections etc.
Their status and dignity shall also be a casualty.
Section 22 of the State Constitution deals with the directive principles of State Policy and under
clause (d) it ensures,
The right to full equality in all social, educational, political and legal matters.
Above all, their fundamental rights guaranteed under Articles 14, 15(1), 16(1) and 19(1)(e) of the
Constitution of India shall stand whittled down. The authors of this proposed Act are deriving
force from the mandate of Article 35-A of the Constitution to enact it.
The proposed Act is defining the classes of persons amongst the permanent residents of the State
of the classification of genders. The female members from the category of genders marrying
outside the State shall lose all the rights specified from heads (i) to (iv) of clause (b) of the said
article. Clause (b) is an independent provision and not dependent on clause (a) so far as its
second limb is concerned. Clause (b) envisages the conferring on defined permanent classes of
persons under clause (a) any special rights and privileges, or imposing upon other persons any
restrictions, as respects matters enumerated under heads (i) to (iv).
The female members who are classified under clause (a) under the Act could only be
conferred special rights and privileges under the first limb of clause (b) of the article. Their
rights or privileges cannot be restricted under the second limb of clause (b) of the article and
not to talk of extinguishing their vested rights. Under this provision restrictions can be
imposed as enumerated under heads (i) to (iv) upon other persons i.e. persons who are not
defined permanent residents of the State which means on non-residents or outsiders. In other

words, the second limb of clause (b) of the article is not applicable to permanent residents of
the State.
A harmonious construction has only to be given to clauses (a) and (b) of the article, in order to
arrive at the desired result contemplated by Parliament. Parliament had never contemplated the
growth and survival of fissiparous tendencies in this part of the country. The Act if comes into
force shall breed hatred and conflict between male and female genders as well as between the
inhabitants of three regions of the State on the basis of communal and political lines. Educated
and progressive female members from the majority community too have married outside the
State and in future they shall also be getting married even if the Bill becomes an Act. The Act
will advance mischief and create conflict in the society instead of resolving them.
The Act lacks the legislative power of enactment as it falls outside the purview of Article 35-A.
It is violative of the spirit of this article.
Article 14 gives a fundamental right to equality before law but under the Act males have been
preferred because after marriage, females from outside will not lose the right of being permanent
residents. A female from outside the State shall became a permanent resident on marrying a male
permanent resident of the State but a daughter who is a born State subject will lose the right on
marrying an outsider. Unreasonable classification between males and females and between
females and females is against the spirit of Article 14 of the Constitution . The discrimination
against any citizen on the ground of sex is hit by Article 15(1). Clause (i) of Article 16 states that
there shall be equality of opportunity for all citizens in matters relating to employment or
appointment to any office under the State. The Act is violating this provision of the Constitution
too as a female marrying a non-State subject shall lose employment and shall have no future
right of employment in the State. Clause (e) of Article 19 provides that all citizens shall have the
right to reside and settle in any part of the territory of India. Under the Act, a daughter of the
State may reside and settle in any part of the country at the cost of losing the acquired
constitutional right of the State Constitution as well as the Constitution of being a permanent
resident of the State.

The above perverse situation can lead to frustration among thousands of Indian citizens in
Jammu & Kashmir. Read the report from Free Press Journal, Mumbai, of 18th April 2004
reproduced verbatim below :

Pakistani refugees in J&K shut their doors on political parties

PALLANWALA (LOC) Living as unwanted citizens of Jammu and Kashmir since the partition,
over one lakh people who crossed over from Pakistan are closing the door on politicians
knocking their door steps for votes with a promise to get them citizenship rights in the state,
reports PTI. We have closed our doors on politicians and candidates campaigning for the Lok
Sabha elections. They are repeating the same 50-year-old promise to get us citizenship in Jammu
and Kashmir. We are now fed up of them and their tall promises made every time during the
polls 81-year-old West Pakistan refugee Chowdary Hari Ram told PTI at Rangpur Sidhriya
village on the Indo-Pak border in Jammu constituency.
Ram, who settled in the village after escaping the 1947 holocaust in which his family members
were massacred, said, We have lost faith in this electoral or democratic process and have
accepted our fate of living as unwanted citizens. Over one lakh refugees from West Pakistan
have settled along the Indo-Pak border in Jammu after 1947. These WP refugees have Indian
citizenship and can vote in Lok Sabha elections. But they do not have the right to vote in
assembly elections as they are not given citizenship in Jammu and Kashmir even 57 years after
they settled in the state. The WP refugees had voted for Congress, BJP and even National
Conference in different Lok Sabha polls from 1967 to 2002 by-polls in Jammu. But our demand
was never fulfilled by anyone, Bachan Lal, who fought the cause of the refugees from lower
court to the Supreme Court, said. All have duped us with false promises. We continue to live as
unwanted people devoid of basic rights including education, voting in assembly elections, civic
bodies, admission in professional colleges and right to own land and houses, Mastesat Paul,
who was a government teacher in Pakistan, said.

It is hoped that all the Honble Members of the State Legislative Council and the State
Legislative Assembly in their wisdom shall again think over their legal duty to bring this piece of

legislation within the four corners and ambit of the State Constitution as well as the Constitution
of India.