LEGAL POINT Bachan Lal Kalgotra  Vs. State Of Jammu & Kashmir And Others on 20 February, 1987

02 Feb 2018 15:12:45

 

 


Vishal Arun

 [This case involves the issue where, West Pak Refugees (who migrated from West Pakistan to the State of Jammu & Kashmir in India in 1947 in the wake of the partition of the country) contended that they should at least be given the same rights as are given to those who voluntarily migrated to east Pakistan at the time of the partition in 1947. Though Article 35A was not the issue in question, but apex Court of India categorically observed that the petitioner and those like him have a justifiable grievance. They have very anomalous rights within the State. They are not in a position to enjoy many of those fundamental rights within that State in which they are domiciled for nearly 40 years.]

 

 

The issue of denial of basic rights to West Pakistan Refugees by the State of Jammu and Kashmir first came before the Hon’ble Supreme Court of India in the case of  “Bachan Lal Kalgotra    vs      State of Jammu & Kashmir and ors.”

In the year 1982, Jammu and Kashmir legislature enacted “Resettlement Act 1982” (hereinafter referred to as “Act”) whereby various rights were made available to those residents of the State, who had voluntarily migrated to west Pakistan in the year 1947 during partition and who had chosen to return to the State of Jammu & Kashmir later on, and also to their children who had chosen to return to the State later on.

But these rights were not made available to those who had migrated from West Pakistan to the State of Jammu and Kashmir in 1947 in the wake of the partition of the Country and had settled down there. They are popularly known as West Pakistan Refugees (or “WPRs” for short).

The natural corollary is that after the Act came into force, those who initially opted for India as their Nation and had come back to India in the wake of 1947 partition (i.e. WPRs) facing various hardships had much lesser rights than those who had initially considered Pakistan as their country and migrated and settled there during partition but later on they or their children chose to return to India.

As the Act was discriminatory and denied various fundamental and legal rights to WPRs, Mr. Bachan Lal Kalgotra in his capacity as the Chairman of the Action committee of WPRs filed a  writ petition before the Hon’ble Supreme Court of India and challenged the vires of the Act but later on gave up the challenge to the vires as the same issue was already pending before the Supreme Court in Spl. Reference No. 1 of 1982.

Now the sole issue involved in the case before the Hon’ble Court was “Whether WPRs are entitled for the same rights given to those who had voluntarily migrated to west Pakistan at the time of partition and have now chosen to return to the state of JK, even if it is presumed that the Act is valid ?”

The Hon’ble Supreme Court answered the question in negative even though it made very strong finding and observations in favour of WPRs. The Court found and recognised the WPRs as citizen of India. Further  Court recognised these rights and various other Fundamental rights of WPRs but held that the denial of these rights to WPRs are result of definition of “Permanent Resident” under Sec-6 of the Constitution of Jammu & Kashmir. The Hon’ble Supreme Court held that WPRs and similarly situated persons are not “Permanent Resident” within the meaning of the Constitution of Jammu & Kashmir. The Court found that various local laws of the state of JK recognises or qualifies only “Permanent Residents” and disqualifies “Non Permanent Residents”. The judgment says that these provisions of local laws are not open to challenge (on the ground of being violative of the Fundamental rights) due to insertion of Art 35A to the Constitution of India through Presidential order 1954 under Art. 370 (1)(d) of the Constitution.

 

The observations made by the Court can be summarised below:

 

  • Those who had voluntarily migrated to west Pakistan in the year 1947 during partition and who had chosen to return to the State of Jammu & Kashmir from west Pakistan thereafter are in a better position after Resettlement Act 1982 than WPRs because of special position secured to them vide Sec 6 (2) of the Constitution of Jammu & Kashmir.

 

  • WPRs have a justifiable grievance and entitled to be protected both by the State of Jammu & Kashmir and the Union of India.

 

  • Court hinted that various local legislations of the State of Jammu & Kashmir are discriminatory to WPRs.
  • Jammu & Kashmir state legislatures to take action to amend various legislations to grant possible reliefs to the WPRs.

 

However, the Court did not at all discuss or made any finding  on the validity, legality,  constitutionality, vires etc. either of “Art- 370(1)(d) of the Constitution of India” or “The Presidential Order 1954” or “Art 35A of the Constitution of India” The Hon’ble Court also didn’t discuss the validity, legality, constitutionality, vires etc. of “Art- 6 of the Constitution of Jammu & Kashmir. These issues are still open.

 

 

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