A Case Commentary on Charu Wali Khanna & Another V. Union of India & Another.

A recent petition filed before the Supreme Court of India demands the abrogation of Article 35-A of the Constitution of India and Note III of a 1927 notification defining “permanent residents” in the State of Jammu & Kashmir, (hereinafter J&K). This article is a case comment on the same. Article 35-A was promulgated by virtue of a Presidential Order in the summer of 1954 as a result of the Delhi Agreement between erstwhile Prime Ministers of India and J&k, Mr. Jawaharlal Nehru and Mr. Sheikh Abdullah respectively. The said article in essence is an enabling provision permitting the legislature of J&K with the autonomy and freedom to define permanent residents of the State.

Exercising this power, the State of J&K has enlisted a range of privileges available only to classes of people falling within the definition of ‘permanent resident’. The benefits under this provision include prerogative in acquiring property, government jobs, settlement, and government sponsored scholarships. It is pertinent to mention that this practise of defining ‘permanent residents’ is an anomaly compared to the regular practice in other Indian states. The Constitution of India does not make such a provision or mark out any such distinction between ‘permanent residents’ or ‘non-permanent residents’ of any state, such exception has been created only for the State of J&K.  The same has been done largely as a protective measure against demographic restructuring of J&K, India’s only Muslim majority State. The Muslims of the State fear losing their majority status on account repeated calls from a significant section of Indian population calling for abolition of the special status conferred to J&K. There have also been demands for repopulating the State with Hindu population in order to make Muslims a minority. The situation in neighbouring Pakistan occupied Kashmir where Kashmiri’s have become a minority in their own state with domination of Pakistan’s Punjabi settlers further accentuates these fears.

Alleged Unconstitutionality and Gender Discrimination:
This particular petition has been filed by lawyer Mrs. Charu Valia Khanna, who alleges that discrimination is meted out to the Kashmiri native women at large.  She states that she herself being a Kashmiri Pandit is denied the right to acquire property in the state of J&K on the grounds of her having left the state for permanent residence outside the state after her marriage to a non-permanent resident. This disqualifies her from falling within the definition of ‘permanent resident’.

The petitioner particularly raises two disputes. Firstly, the constitutional validity of Article 35-A is challenged on the grounds of the same not being incorporated through a valid amendment procedure. And secondly, the alleged gender discriminatory nature of a 1927 notification related to it.

Article 35-A was inserted into the Indian Constitution through the Constitution (Application to Jammu and Kashmir) Order, 1954 issued by the President of India under Article 370(1)(d) and not Article 368, which is the only article through which an amendment can be incorporated.  Hence, it is argued that insertion of a constitutional article by an order of the President is null and void. However, the petitioner fails to appreciate two Supreme Court Judgements (Puranlal Lakhanpal v The President of India and SBI v Santosh Gupta) upholding this form of amendment as being a valid exercise of power under Article 370 in pursuance of maintaining the special autonomy granted to J&K.

Article 370(1)(d) of the Constitution reads as follows: “Such other provisions of the Constitution of India shall apply to the State subject to such exceptions and modifications as the President may by order specify.”

The court while dealing with the issue decided to give Article 370 (1) (d) the widest effect and read ‘amendment’ in the word ‘modification’. Thus upholding amendments made vide Article 370 and hence the issue of the Constitutional validity of Article 35- A was settled.

The second and more substantial challenge is based on the gender inequality being propounded through Note III of a 1927 Notification. The note states that “a wife or a widow of the state subject of any class shall acquire the status of her husband as long as she does not leave the state for permanent residence outside the state”. It has been contended that this note puts Kashmiri women marrying non-permanent resident men at disadvantage since they stand to lose their permanent residency and thereby the child of such wedlock would not be entitled to the rights of a permanent residency.

However, it was clarified by the High Court of J&K in the 2003 Susheela Sawhney case, itself that the above notification uses the word “acquires” and thus can only be read in case of a non-resident who marries a permanent resident. The bench while referring to a spate of judgements and articles distinguished that in case of permanent residents the word used would be “inherit” and not “acquired”. Coming as a relief the judgement even clarified that the permanent resident status would not be lost by the woman in case of her marriage with the non-permanent resident, nor will her children be deprived of similar rights. However, an observation was made that the same woman and by implication her children would be deprived of the permanent resident status if she leaves the state of J&K for residing permanently in another state. This simply can be interpreted as a woman being prohibited for settling in any other state apart from Kashmir in order to retain the “permanent resident” status.

In a patriarchal society like India, a woman residing at the house of her husband after marriage, naturally being out of J&K in this case, would be the norm. Thus, in almost every case, after marriage to a non-permanent resident; the woman will lose her rights as a permanent resident and so will her children. It is imperative to note that this is not the case for men. This position makes it a text book case of gender discrimination and hence a violation of Article 14 and 15 Indian Constitution.

The authors believe that balanced constitutionalism is the need of the hour.  A declaration of unconstitutionality of this notification shouldn’t be along with an abrogation of Article 35-A. The constitutionality of Article 35-A is beyond doubt. Article 370 is the umbilical cord that connects Jammu and Kashmir to India and Article 35-A is nothing short of an appendage to it. Tinkering with Article 35-A would only rouse the people of Kashmir by unnecessarily spreading a feeling of consternation among them.