section 6 of the constitution of jammu and kashmir dealing with the definition of

7/21/2019 Section 6 of the Constitution of Jammu and Kashmir Dealing With the Definition Of

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CONSTITUTIONAL GOVERNANCE-II

CONCEPT OF SINGLE INDIAN CITIZENSHIP WITH RESPECT TO

PREMANENT RESIDENCE IN JAMMU AND KASHMIR(Project towards partial fulfillment of assessment in the subject of Constitutional Governance-II)

Submitted t!

Professor K.L.Bhatia,

Faculty of Law (Constitutional Governance-II).

Submitted b"!

Krati Chouhan ,Roll o. !"#!,

I$ %e&ester, B.B.' LL.B. (ons.).

NATIONAL LAW UNIVERSIT#$ JODHPUR


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Citizenship consists in the service of the Country

-awaharlal !ehru

PREFACE

*here is a +elief, even a&on senior oliticians, that with several features of the Constitution of

Inia havin +een &ae alica+le over the years to /a&&u 0 Kash&ir %tate, 'rticle 12" no

loner uts that %tate on a secial eestal an, therefore, the 'rticle3s continuance nee no

loner +e a +one of contention. *he truth is otherwise. For instance, the averae eucate Inian

+elieves that every law of the Parlia&ent is alica+le throuhout the country, incluin the %tate

of /a&&u 0 Kash&ir.

othin is further fro& the truth. 4sin the freeo& rovie +y 'rticle 12", the /0K %tate hasnot accete Inian Penal Coe, Prevention of Corrution 'ct, !566, an several other laws

asse +y the nation3s Parlia&ent. 'nother truth is that, +ecause of the leeway rovie +y

'rticle 12", the /a&&u 0 Kash&ir %tate overn&ents have, own the years, ecline the

alica+ility of o7ens of other 'rticles of the Inian Constitution to their %tate or accete the&

in only a &oifie for&. ' larin e8a&le of this is that while the Prea&+le of the Inian

Constitution roclai&s the 4nion of Inia as +ein 9%ecular3 (whatever that &ay &ean), the

corresonin Prea&+le of the /0K %tate Constitution oes not avow that the %tate is 9%ecular3.

*here is the notion that 'rticle 12" rotects :usli& interests an therefore ouht not to +e

a+roate. *he truth is that the continuance of 'rticle 12" for /a&&u 0 Kash&ir %tate in no way

+enefits the :usli&s in the rest of the country while si&ultaneously forcin the :usli& &a;ority

of that %tate to continue livin relatively isolate fro& the rest of the entrereneurial an

innovative Inian eole. *here is, lastly, that ol ercetion that it is 'rticle 12" which rohi+its

anyone fro& outsie /a&&u 0 Kash&ir %tate fro& ac


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HISTORICAL BACKGROUND OF ARTICLE 307

'rticle 12" is arua+ly the &ost contentious rovision of the Constitution of Inia. It eals

e8clusively with /a&&u 0 Kash&ir state that ca&e uner a&inistrative control of the

Govern&ent of Inia after the country3s !?-&onth war that Pa>istan starte in !5@2 to sei7e

sovereinty over that %tate.

Besiee +y controversy riht fro& its raft stae, 'rticle 12" has +een the su+;ect of heate

e+ate ever since the Constitution ca&e into full effect fro& A#th /anuary !5?". hile one

section of the Inian olity has stronly e&ane its a+roation, so&e others have vehe&ently

oose this e&an why, in !555, Faroo< '+ullah, the %tate3s then Chief :inister, even

threatene a revolt if the 'rticle were revo>e. %trane as it &ay see&, the oriin of 'rticle 12"

can +e trace to the British Ra; in Inia.

*his section shows how an why it is so. Prior to the artition of !5@2, the British control over

what was then >nown as Inia e8tene to two very ifferent sets of eorahical reions. Dne

of these two co&rise the various rovinces that were a&inistere in all resects +y the British

Parlia&ent throuh its no&inate reresentative esinate as the $iceroy of Inia. *his rou

of rovinces was >nown as British Inia an constitute #"E of the lan area of the su+-

continent. *he rest of the @"E, containin !"" &illion of the su+continent3s total of @"" &illion

inha+itants, was rule +y the rinces :ahara;as, awa+s, Ra;as an so on, each with a

&eieval territorial &onarchy. *here were in all ?#A such rincely states ranin in si7e fro&

yera+a an /a&&u 0 Kash&ir, each of which was al&ost as +i as &ainlan Britain, to &ere

ots on the &a. Df this total, 1A2 were etty %tates whose averae area was a+out A" se after the %tates for efence, forein olicyan co&&unications in return for which they each ac>nowlee British 9ara&ountcy3 throuh

iniviual treaties, their citi7ens were not British su+;ects, li>e the other Inians, +ut 9British

rotecte ersons3.

*he British ave an Inian %tate an its ruler rotection aainst neih+ours an usurers +y

stationin co&any troos in its caital uner the control of a British Resient. *he troos were,


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of course, very &uch a two-wee weaon while they were rotectin the rince, they were

also >eein hi& in line, a rivilee for which he was e8ecte to ay= *he case of /a&&u 0

Kash&ir was very tellin in this conte8t. 'lthouh the British transferre the %tate forever to

:ahara;a Gula+ %inh for Rs. 2? la>hs uner *reaty of '&ritsar, !6@#, an fi8e a no&inal

annual ay&ent to rotect his territories fro& e8ternal ene&ies, they aointe an Dfficer on

%ecial Huty who, fro& !622, was lace irectly uner the Govern&ent of Inia.

In !66@, the British aointe it3s Resient in the %tate althouh a rovision to that effect was

not a art of the *reaty. *hey wante the Resient to +e in co&lete chare of the %tate. Because

of a court intriue out of the fact that the :ahara;a ha no son to succee hi&, the British laye

his +rother aainst hi&, an ressurise hi& to accet an arrane&ent +y which he was relieve

of all arts of the a&inistration which was lace in the hans of Council of Reency uner the

control of the Resient.

In !665, the British eose :ahara;a Prata %inh an restore hi& his throne in !5"? +ut

su+;ect to the veto of the Resient1. Dn A"th Fe+ruary, !5@2, is :a;esty3s Govern&ent

announce that ineenence woul +e iven to British Inia, the lan +ein to create two

ineenent o&inions of Inia an Pa>istan +ase on the inu an :usli& &a;ority areas of

the various rovinces that constitute British Inia@. ith rear to the Inian %tates, the olicy

was the one announce +y the British Govern&ent3s Ca+inet :ission on !Ath :ay !5@#. 4ner

that olicy, olitical arrane&ents +etween the %tates on the one sie an the British Crown an

British Inia on the other were to +e +rouht to an en. *he rihts surrenere +y the %tates to

the Para&ount Power woul revert to the %tates when the Ho&inions of Inia an Pa>istan were

create.

*hus, with the withrawal of ara&ount, the rincely %tates woul +eco&e 9ineenent3 an the

co&&unal +asis of ivision of British Inia woul not affect the %tates at all. either the Ca+inet

:ission nor the British Govern&ent &ae any suestion rearin the future of the rincely

%tates e8cet that they woul +eco&e leally ineenent. *he rosect of all ?#A Inian %tates

e8ercisin their ineenence was too &in-+olin. I&aine the chaos of fra&entation ose

+y ?#A oc>ets of soverein %tates srea over the two Ho&inions of Inia an Pa>istan.

:ilitary ta>eovers an civil wars were on the cars.

ho >nows, that &ay very well have +een the o+;ective of the British. It was $. P. :enon who

ca&e u with a solution. 's %ecretary to %arar Patel3s %tates Heart&ent, :enon roose that


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the rincely rulers shoul +e ersuae to han over ;ust three functions of their %tates to the

central overn&ent efence, e8ternal relations an co&&unications the sa&e functions

which ha +een always e8ercise +y the British overn&ent. is aru&ent was that few, if any,

of the %tates were es were the lifeline of the new nations an coul not reasona+ly +e left to

the whi&s of iniviual rulers. It was thus that the I%&t'ume%t ( A))e&&i%was +orn. Its raft

was circulate on A?th /uly !5@2 when Lor :ount+atten, $iceroy of Inia an Crown

Reresentative, aresse the Cha&+er of Princes, a conreation of the rulers of Inian %tates.

*his raft Instru&ent of 'ccession rovie for the ruler areein to accee to either of the two

o&inions while surrenerin to the aroriate Ho&inion the ower over three secifie

su+;ects, without any financial lia+ility. It finally ca&e to +e &ae uner %ection # of the

Govern&ent of Inia 'ct, !51?, as aate +y %ection 5 of the Inian Ineenence 'ct, !5@2.

PATELS BASKET OF APPLES

%arar Patel ha +luntly tol :ount+atten that in return for their unersine Instru&ent of

'ccession, the $iceroy was free to offer the rulers, their titles, alaces, rivy urses, their riht to

British ecorations an so on as lon as Patel ot his full +as>et of ales +efore the official

transfer of ower occurre. %o ersuasive an aressive was Patel that +y !? th'uust !5@2, one

ay +efore Ineenence Hay, only three ales were &issin fro& his +as>et the s&all state of

/unaah an the two lare ones, yera+a an /a&&u 0 Kash&ir. ow each of these three

ca&e into the +as>et is a s&all saa +y itself.

hat has &ae the /a&&u 0 Kash&ir3s Instru&ent of 'ccession a+solutely secial an uni


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/a&&u 0 Kash&ir on the avice of his Council of :inisters of his %tate3s Interi& Govern&ent

le +y %hei>h '+ullah. *hey tol the Inian Constituent 'sse&+ly that the /a&&u 0 Kash&ir

%tate3s association with Inia woul +e +ase 9only3 on the ter&s of the 'ccession, that the

%tate3s overn&ent i not accet the Constitution of Inia as a Constitution for the %tate, an

that, esite accession, the %tate was still to +e overne +y its ol Constitution 'ct, !515.

It ca&e to ass therefore that while the Constitution of Inia was to +eco&e alica+le not only

to the for&er rovinces of British Inia +ut also to other rincely %ates as full-flee

constituent units of the 4nion, the Inian Constituent 'sse&+ly was co&elle to &a>e a secial

rovision to cover the articular an e8cetional case of /a&&u 0 Kash&ir. 'rticle 12" was

sown then.

PERMANENT RESIDENCE UNDER ARTICLE6-9 OF THE

CONSTITUTION OF JAMMU AND KASHMIR

%ections #-5 of the %tate Constitution sell out the nature, content an conte8t of er&anent

resients of the %tate.

*houh there is sinle citi7enshi, +ut sections #-5 ive the fiction-rien i&ression that there

is ual citi7enshi. i.e., citi7enshi of Inia an searate citi7enshi for the er&anent resients

of /K.

*he lanuae of %ections #-5 coul have +een su&&e u in one %ection, vi7., the er&anent

resients of /0K shall +e the er&anent citi7ens of Inia as efine in 'rticles ?-!! of the

Constitution of Inia.

*his coul have facilitate all citi7ens of Inia to interate cul&inatin into the co&lete

interation of /K to Inia, an there ouht not have +een the irect conse


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%ection # of the Constitution of /a&&u an Kash&ir ealin with the efinition of er&anent

resients of the %tate runs as uner

#.Permanent residents.

!. very erson who is, or is ee&e to +e a citi7en of Inia uner the rovisions of the

Constitution of Inia shall +e er&anent resient of the %tate, if on the fourteenth ay

of :ay, !5?@

(a) e was a %tate su+;ect of Class I or Class II or

(b) avin lawfully ac


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othin in the foreoin rovisions of this art shall eroate fro& the ower of the %tate

Leislature to &a>e any law efinin the classes of ersons who are, or shall +e, er&anent

resients of the %tate. .

%ection5. Se)i,+ 'e.i&i% (' /i++& 'e+,ti%* t e'm,%e%t 'e&ide%t&-

' Bill &a>in rovision for any of the followin &atters, na&ely-

(a) Hefinin or alterin the efinition of the classes of ersons who are, or shall +e, er&anent

resients of the %tate.

(+) Conferrin on er&anent resients any secial rihts or rivilees

(c) Reulatin or &oifyin any secial rihts, or rivilees en;oye +y er&anent resients

shall +e ee&e to +e asse +y either ouse of the Leislature only if it is asse +y a &a;ority

of not less than two-thirs of the total &e&+ershi of that ouse.

%uch a Bill is ee&e to +e asse +y either ouse of the leislature only if it is asse +y a

&a;ority of not less than A1rs of the total &e&+ershi of that ouse. %ection !" of the %tate

Constitution uarantees to the er&anent resients of the %tate all the rihts uarantee to the&

uner the Constitution of Inia.

'rticle I an 'rticle 12" of the Constitution of Inia were e8tene to the %tate of /a&&u an

Kash&ir with retrosective effect fro& A#-!-!5?". *he Constitution of Inia was su+se


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(b) Conferrin on such er&anent resients any secial rihts an rivilees or i&osin uon

other ersons any restrictions as resects

(i) &loy&ent uner the %tate Govern&ent

(ii) 'c


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*he %tate su+;ects were +y these orers ivie into three classes. %tate su+;ect of Class I +ein

the sa&e as the hereitary %tate su+;ect efine in the earlier circular orer an those of Class II

+ein the ersons who settle within the %tate +efore the close of sa&vat year !5#6 an have

since er&anently resie an ac


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Class III.'ll ersons other than those +elonin to Class I an Class II er&anently

resiin within the %tate, who have ac


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NOTIFICATION

(Issue +y orer of is ihness the :ahara;a Bahaur ate %rinaar, the A2th /une,

!51A, !@th :arch, !515, u+lishe in the Govern&ent Ga7ette ate A@th :arch, !565.)

o. !1-L!565 hereas it is necessary to eter&ine the status of /0K %tate su+;ects

in forein %tate as to the osition of their nationals in the %tate, it is here+y co&&ane an

notifie for the u+lic infor&ation as follows

. *hat all e&irants fro& /0K %tate to forein territories shall +e consiere %tate

su+;ects an also the escenants of these e&irants +orn a+roa for two enerations

Provie that, these nationals of /a&&u an Kash&ir %tate shall not +e entitle to

clai& the internal rihts rante to su+;ects of this %tate +y laws, unless they fulfil the

conitions lai own +y those laws an rules for the secific uroses &entione therein.

,. *he forein nationals resiin in the %tate of /a&&u an Kash&ir shall not ac


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*here is no rovision in otification o. !-L6@ ate A"-@-!5A2 or in the Constitution of

/a&&u an Kash&ir that on &arriae with a non-er&anent resient, the auhter of a

er&anent resient shall lose her status as a er&anent resient of the %tate to hol, inherit an

ac


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a civil isute +etween the arties with rear to lane roerty an that isute ha no

i&lications for u+lic interests. *he learne /ues ha not averte to the controversy with

reference to %ection # of the %tate Constitution rea with otification o. !-L6@ ate A"-@-

!5A2 an otification o. !1L ate A2-#-!51A. *hey ha o+serve that a &arrie wo&an

ac


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er&anent resient who &arries a non-er&anent resient an that the %tate Leislature has

owers uner %ection 6 of the /0K Constitution to &a>e such a law.

*a>in a clue fro& the a+ove sai ;u&ent the coalition Govern&ent has resente *he /0K

Per&anent Resients (His


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;ustice, social, econo&ic an olitical, e


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words* the second limb of clause $b% of the article is not applicable to permanent residents of

the State3

' har&onious construction has only to +e iven to clauses (a) an (b) of the article, in orer to

arrive at the esire result conte&late +y Parlia&ent. Parlia&ent ha never conte&late the

rowth an survival of fissiarous tenencies in this art of the country. *he 'ct if co&es into

force shall +ree hatre an conflict +etween &ale an fe&ale eners as well as +etween the

inha+itants of three reions of the %tate on the +asis of co&&unal an olitical lines. ucate

an roressive fe&ale &e&+ers fro& the &a;ority co&&unity too have &arrie outsie the

%tate an in future they shall also +e ettin &arrie even if the Bill +eco&es an 'ct. *he 'ct

will avance &ischief an create conflict in the society instea of resolvin the&.

!he &ct lacks the legislative power of enactment as it falls outside the purview of &rticle +,)&.

It is violative of the spirit of this article3

'rticle !@ ives a funa&ental riht to e


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*he a+ove erverse situation can lea to frustration a&on thousans of Inian citi7ens in

/a&&u 0 Kash&ir. Rea the reort fro& 9Free Press /ournal3, :u&+ai, of !6th 'ril A""@

rerouce ver+ati& +elow

Pa!"#a$! %&'()&&" !$ J*K "+(# #+&!% ,%" $ ./!#!a/ .a%#!&"

P'LL''L' (LDC) Livin as 9unwante citi7ens3 of /a&&u an Kash&ir since the artition,

over one la>h eole who crosse over fro& Pa>istan are closin the oor on oliticians

>noc>in their oor stes for votes with a ro&ise to et the& 9citi7enshi rihts3 in the state,

reorts P*I. e have close our oors on oliticians an caniates ca&ainin for the Lo>

%a+ha elections. *hey are reeatin the sa&e ?"-year-ol ro&ise to et us citi7enshi in /a&&u

an Kash&ir. e are now fe u of the& an their tall ro&ises &ae every ti&e urin the

olls 6!-year-ol est Pa>istan refuee Chowary ari Ra& tol P*I at Ranur %ihriya

villae on the Ino-Pa> +orer in /a&&u constituency.

Ra&, who settle in the villae after escain the !5@2 holocaust in which his fa&ily &e&+ers

were &assacre, sai, e have lost faith in this electoral or e&ocratic rocess an have

accete our fate of livin as unwante citi7ens. Dver one la>h refuees fro& est Pa>istan

have settle alon the Ino-Pa> +orer in /a&&u after !5@2. *hese P refuees have Inian

citi7enshi an can vote in Lo> %a+ha elections. But they o not have the riht to vote in

asse&+ly elections as they are not iven citi7enshi in /a&&u an Kash&ir even ?2 years after

they settle in the state. *he P refuees ha vote for Conress, B/P an even ational

Conference in ifferent Lo> %a+ha olls fro& !5#2 to A""A +y-olls in /a&&u. But our e&an

was never fulfille +y anyone, Bachan Lal, who fouht the cause of the refuees fro& lower

court to the %ure&e Court, sai. 'll have ue us with false ro&ises. e continue to live as

unwante eole evoi of +asic rihts incluin eucation, votin in asse&+ly elections, civic

+oies, a&ission in rofessional collees an riht to own lan an houses, :astesat Paul,

who was a overn&ent teacher in Pa>istan, sai.

It is hoe that all the on3+le :e&+ers of the %tate Leislative Council an the %tate

Leislative 'sse&+ly in their wiso& shall aain thin> over their leal uty to +rin this iece of


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leislation within the four corners an a&+it of the %tate Constitution as well as the Constitution

of Inia.

section 6 of the constitution of jammu and kashmir dealing with the definition of

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