|
Jammu and Kashmir Permanent Residents (Disqualification) Bill, 2004 is Unconstitutional
by Justice G.D. Sharma*
Cite as : (2004) 6 SCC (Jour) 23
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 twentyseventh June, 1932.
Section 8 of the State Constitution empowers the State Legislature to define permanent residents. Section 9 of the Constitution of Jammu and Kashmir deals with special provision for Bills relating to permanent residents. 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. 26-1-1950.
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 Secretary’s 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 Minister-in-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 abovesaid 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 Prakash v. 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 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 20-4-1927 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 criticised as the most barbarous relic of the wife’s 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. Shahni1 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 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 abovesaid 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 6½ 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. This article states that:
“35-A. 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.”
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.
It is hoped that all the Hon’ble 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.
———
|
