On Monday, the Supreme Court questioned the conditions set forth in the Jammu and Kashmir Constitution for persons seeking to get permanent resident status.
The requirement of holding property as a precondition to attain this status was described as “odd” by Justice Sanjeev Khanna, who is a member of the five-judge Constitution bench hearing petitions challenging modifications made to Article 370 of the Constitution.
Justice Khanna remarked, “That’s also very odd, to say that you must own a property to get” permanent resident status.
He said this as senior advocate Guru Krishnakumar sought to highlight how “thousands of Hindu and Sikh families”, who had to flee Pakistan-occupied J&K, have not been able to return to their ancestral homes till date and were “also denied other benefits extended to similarly placed displaced persons” in the erstwhile state.
Krishnakumar said this “discrimination is by reason of the operation of Section 6 of J&K Constitution and Article 35A of the Constitution of India as applicable to Jammu & Kashmir, which empowered the administration to systematically discriminate against such Indian citizens”.
He emphasized that despite being State subjects as of August 15, 1947, his clients who were forcibly removed by circumstances lost the right to be permanent residents under Section 6. He explained that those who did not fit the provision’s definition of a permanent resident would have to rely on the definition from the decree issued by the J&K ruler at the time in 1927.
Then, Justice Khanna questioned whether it would be difficult to obtain records from 1927.
Senior attorney Mahesh Jethmalani made additional arguments before the bench chaired by Chief Justice of India D Y Chandrachud on behalf of the Gujjar Bakarwal community, stating that a comparison of the pertinent provisions of the Constitutions of India and J&K “unequivocally establish” that the “Union of India is sovereign qua…J&K.”
He claimed that although J&K and the Union of India share legal sovereignty in relation to Article 370, the former has ultimate legislative authority.
He noted that Article 5 of the J&K Constitution “recognises the ultimate legislative sovereignty of the Union of India.” The Constitution of J&K, Section 147, is the “most significant acknowledgment of the Union’s legislative sovereignty over the State,” according to him.
“The second proviso to that section prescribes that no Bill or amendment seeking to make change shall be introduced or moved in either houses of legislature in 3 areas: (i) Section 147 itself, which deals with amendments to the Constitution of Jammu and Kashmir; (ii) the provisions of Sections 3 and 5 which…vests political sovereignty and ultimate legal sovereignty in the Union of India respectively; and (iii) the provisions of the Constitution of India as applicable to the State of Jammu and Kashmir.between the Union of India and the State of Jammu and Kashmir”.
Jethmalani contended that it is clear that the Constituent Assembly referred to in Article 370(2) and proviso to Article 370(3) were “unequivocally synonymous, both substantively and in procedure to be followed” and hence, “in the absence of a Constituent Assembly, an institution synonymous with it i.e., the Legislative Assembly of the State of J&K has to be read in place of the Constituent Assembly in the proviso to Article 370(3)”.
Senior advocate Kapil Sibal, in his rejoinder submissions, said he was “somewhat pained when a counsel argued that we respect the sentiments of people of J&K but you must also respect our sentiments”. He said, “To say that you must respect our sentiments, as if they’re somebody else, itself is creating a kind of chasm it shouldn’t be creating… we cannot produce this case to an emotive, majoritarian interpretation of the Constitution of India.”
Sibal argued that Article 370 places restrictions on Parliament’s ability to pass laws and refuted the claim that it has plenary power (full legislative authority) over J&K. “They claim that the Constitution gives Parliament plenary authority. In reality, the opposite is true. Article 370 places restrictions on the legislature’s ability to enact legislation. You are talking about having plenary authority while it is staring you in the face.
Sibal argued that the ministerial council, not the legislature, would make the decision. This, he claimed, was done to ensure that J&K was gradually integrated into India through a simple process that allowed business leaders to connect with one another.
He questioned how anyone could ever consider a scenario in which the Constituent Assembly, which drafted the J&K Constitution and declared it to be a part of India, would state that Article 370 would be abrogated the moment the Assembly was not in place since it had a plenary power superior.
The discussion will come to an end on Tuesday.
