3 West Pakistan refugees move SC; demand scrapping of Article 35A

Satya Prakash

Tribune News Service

New Delhi, September 5

Three West Pakistan refugees living in Jammu and Kashmir have moved the Supreme Court against Article 35A of the Constitution, saying the provision discriminated against them and forced them to live a life of destitutes devoid of basic human rights.

Added to the Constitution through a Presidential Order in 1954, Article 35A gives special rights and privileges to permanent residents of Jammu and Kashmir and debars the rest of Indians from acquiring immovable property, obtaining state government jobs and settling in the state.

Petitioners Kali Dass, Sanjay Kumar and Balwant Singh said three lakh refugees were living like destitutes in deplorable conditions, deprived of basic human rights, safety and security and they could not secure employment in Jammu and Kashmir.

A three-judge bench headed by Chief Justice of India Dipak Misra on Monday directed that the petition be clubbed with other petitions challenging Article 35A. There are already several other petitions pending in the top court against Article 35A which also discriminates against women.

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Amid growing political unease in Jammu and Kashmir over alleged attempts to do away with Article 35A of the Constitution, the Supreme Court had on August 14 hinted at sending petitions challenging the controversial provision to a Constitution Bench for a definitive finding on its validity.

The petitioners submitted that even after being educated the West Pakistan refugees were forced to work as sweepers or domestic helps and they could not hold property, vote in state and municipal elections, secure employment or enjoy any benefits available to permanent residents of Jammu and Kashmir.

“Even after 67 years, the 3 lakh refugees live in dilapidated tin shacks and ramshackle huts in ghettos, without any basic amenities like drinking water, sewage or other facilities,” said the petitioners–descendents of Hindu refugees who migrated from then West Pakistan in 1947 following Partition.

Terming it as violation of their right to equality, right to non-discrimination and right to live with human dignity, the petitioners requested the court to strike down Article 35A as it violated their fundamental rights guaranteed by the Constitution.

They also sought a direction to the state government to confer on them proprietary rights of the land occupied by them since 1947 or alternatively allot land in neighoubring states like Himachal Pradesh and Punjab.

The petitioners said 80% of these refugees who migrated from West Pakistani to Jammu and Kashmir were from scheduled and backward castes and were being denied basic human rights, like the right to employment, education, ownership of property and political participation.

Interestingly, the Centre has been shying away from filing its response to spell out its stand on Article 35A.

But in its affidavit the state government had earlier defended Article 35A terming it a permanent feature of the Indian Constitution. The 1954 Presidential Order granting special rights to permanent residents of the state had been recognised, accepted and acted upon since its enactment, it added.