Constitutionality of Article 35A

Case Description

The petitioners are challenging the constitutional validity of Article 35A of the Constitution.

Firstly, Article 35A is being challenged on the ground that it was introduced through illegitimate means. It was introduced by a Presidential Order, issued by Rajendra Prasad, in 1954. As a result, the article is extra-constitutional, meaning that it has not been added to the text of the Constitution. Only the Parliament, not the executive, can amend the Constitution. Nevertheless, Article 35A has been operative for the last sixty years.

The second major issue is whether Article 35A lies in tension with Article 14, equality before the law.

Article 35A empowers the legislature of Jammu and Kashmir to make laws relating to permanent residency in the State. Controversially, it allows Jammu and Kashmir to make laws that are potentially discriminatory and in violation of Article 14. Much of the controversy surrounds Article 6 of the Constitution of Jammu and Kashmir. Article 6 lays down conditions for obtaining permanent residency in the State and confers permanent residents with the right to own land, hold government jobs and settle down in the State.

The petitioners challenge Article 35A on the grounds that it results in the unfair treatment of women. They claim that Article 6 of the Constitution of Jammu and Kashmir discriminates against women and violates the right to equality.  A female descendant of a permanent resident of the State loses her status of permanent residency on marrying a non-permanent resident of the State. However, the same disqualification does not apply to a man who has marries a non-resident of the State.

The State of Jammu and Kashmir has rebutted the contention that Article 6 violates the right to equality.  The State argued that the position in this matter has been settled in 2002 by the High Court of Jammu and Kashmir in Sushila Sawhney. The Court held that the daughter of a permanent resident marrying a non-permanent resident does not lose her permanent residency. Thus, the State claims that Article 6 of the Jammu and Kashmir Constitution does not discriminate against women.

However, the Court in this case did not decide the matter of the rights of the children and spouses of such women.

The J&K Government initially filed a Special Leave Petition against this decision but withdrew it. The Revenue Committee, which was constituted to recommend guidelines on the issuance of Permanent Resident Certificates, did not seek any substantial changes in the law.

Ms. Khanna filed the writ petition after the J&K Government refused to identify her as a permanent resident as she did not have any documentary evidence. She claimed that she has anecdotal evidence of her ancestry as a Kashmiri Pandit. She sought to build a home in J&K to re-establish her roots but being a non-permanent resident, she could not buy property.

Currently the case is being heard by a three-judge Division Bench. If the Court decides to hear this case, it will be referred to a five-judge Constitution bench.

The We the Citizens vs. Union of India (Writ Petition (Civil) No. 722 of 2014) case has been tagged.

On August 5th, the Union government effecitively struck down the Constitution of Jammu and Kashmir, by abrogating Article 370 of the Constitution of India. The challenge to the abrogation of Article 370 is currently pending before the Supreme Court. If the Court rules in favor of the Union, the Article 35A matter will become infructuous.