1. Argument No. 1 Against Article 35A
It Discriminates Against Women
If a Kashmiri man marries a non-permanent resident, he can bequeath his property to his children. However, if a Kashmiri woman who is a permanent resident marries a non-Kashmiri, her children lose their claim over her ancestral property.
Charu Walikhanna desires to build a house in Jammu and Kashmir to rediscover her Kashmiri Pandit roots. But her marriage to a non-Kashmiri demotes her to the status of a ‘non-permanent resident’ of her home state. And a non-permanent resident, as per Article 35A of the Indian Constitution, cannot acquire immovable property, vote, seek a government job or admission to a government-aided educational institute in Jammu and Kashmir. Charu Walikhanna’s petition challenges Article 35A on the grounds that it is discriminatory against women.
But there’s still room for further clarification. The full judge bench of the J&K High Court did not elaborate on whether the children of women married to non-Kashmiris would also be considered permanent residents who could inherit the property.
Incidentally, the law that gives ‘state subjects’ or ‘permanent residents’ special rights and privileges is a direct import from a 171-year-old agreement between the first Dogra ruler of J&K, Gulab Singh and the East India Company.
It was incorporated under Article 370 through a constitutional order signed by Rajendra Prasad in 1954.