According to the petitioner, Dr Charu Wali Khanna, the Article 35A of the Constitution and Section 6 of the Jammu and Kashmir Constitution are “discriminatory” and “violative of the fundamental Right of Equality as enshrined in the Constitution of India.” 

A Kashmiri Pandit woman, Khanna is married to a non-J&K resident and is settled outside the state of Jammu & Kashmir.

“The petitioner being a Kashmiri Pandit woman by ancestry desires to build a home in Jammu and Kashmir in order to rediscover her roots but due to the peculiar discriminatory laws is unable to purchase property in the state being a non-permanent resident and further married out of caste,” Khanna’s petition says. 

“…Article 14 of Constitution gives a fundamental right to equality before law. But 35 A is heavily loaded in favour of males because even after marriage to women from outside they will not lose the right of being permanent residents,” she has argued in her petition filed through Bimal Roy Jad. 

Issued under Article 370, Article 35A was added as a provision to the Article 35 of Constitution of India, through a Presidential Order, called The Constitution (Application to Jammu and Kashmir) Order 1954. The provision empowers the J&K legislature to define “permanent residents” of the state. 

When article 35A is read along with Section 6 of Jammu and Kashmir Constitution (which deals with the permanent residents), the constitution grants permanent residents of J&K special rights and privileges.

Only permanents residents of J&K have the right to buy property in the state and get government jobs. Even though non-permanent residents living in the state can vote in Lok Sabha elections, they don’t have right to vote in assembly elections for the state legislature. 

The application of these provisions also impacts marital relationships of the state’s citizens. 

The ‘discriminatory’ nature of the provision 

If a Kashmiri man marries a non-permanent resident, he can own property and bequeath his property to his children. 

However, when a permanent resident Kashmiri women marries a person from other states, she loses her right to own property in the state and their children also lose their claim over the property.

This interpretation is based on J&K High Court’s judgement in the Prakash vs Sahani case in 1965 that nationality of a person is determined through marriage. Since a woman takes on the domicile and nationality of her husband, she loses her right of permanent citizenship in the state. 

The judgement was overturned by J&K High Court in 2002 during the famous case of Dr. Susheela Sawhney versus State of Jammu and Kashmir. A full bench judgement of the High Court ruled 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.” 

So, if this ruling is applied to Khanna’s contention that she can’t buy land to construct a house in the state, she can do so without any hassle as she’s a permanent resident of the state irrespective of her location or marriage. 

Contrary to the popular belief, the judgement also upheld a permanent resident woman’s right to employment in the state. “A woman who in employment of the state and at the time of initial appointment is permanent resident of the state can continue to be in employment of the state even after her marriage with the non permanent resident.” 

But what the judgement lacked was the clear explanation on the status of children of female state subject married to a non-state subject. Since the children of such a permanent resident do not have rights to own their mother’s property in the state, the Court had referred the matter of inheritance in such a situation “to be considered by a Larger Bench.” 

Decades-old debate 

The debate over permanent resident women’s rights is not new in J&K. The issue has been raised a number of times in the state legislature as well as the court of law. In fact, as early as March 2017, Jammu and Kashmir government constituted a committee to look into the issues pertaining to Permanent Resident Certificate of women marrying non-permanent residents and come up with a final solution. 

Besides that, the committee was also asked to deliberate upon “the status of children born out of a couple where husband is a non-State subject and family was holding permanent resident certificate before her marriage; the right of female married to a non-permanent resident with respect to disposal of property inherited by her through parents and further issues regarding divorcee and widow on which the law is not very clear.”

In the past, there have been multiple attempts to pass a bill titled ‘J&K Women’s Permanent Resident (Disqualification) Bill’ to put an end to the question of rights of a permanent resident woman. However, consensus has eluded successive governments.

Dr Khanna’s plea in Supreme Court has brought focus on that failure of legislature.

It comes at a time when a series of petitions, including those from RSS-affiliated groups, have been filed before the Supreme Court challenging the “special status”, “state subject law” of J&K under Indian constitution. The series of petitions have fueled fears in valley that the BJP-led central government might be “altering” the special status of J&K under constitution of India. The consistent legal challenges to J&K’s autonomy in Supreme Court is likely to translate into a full blown controversy with ruling PDP as well as other opposition groups voicing their discontent over centre’s silence on the issue.  

The challenge before the Supreme Court is to strike a balance between women’s rights and maintenance of J&K’s special status. 

Feature image source: PTI/File Photo