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The Jammu and Kashmir Grant of Permit for
Resettlement Act and Advisory Opinion of Supreme Court of India: An Analysis |
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| Paper Id :
19305 Submission Date :
2024-09-18 Acceptance Date :
2024-09-23 Publication Date :
2024-09-25
This is an open-access research paper/article distributed under the terms of the Creative Commons Attribution 4.0 International, which permits unrestricted use, distribution, and reproduction in any medium, provided the original author and source are credited. DOI:10.5281/zenodo.13871646 For verification of this paper, please visit on
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| Abstract |
The Jammu and Kashmir
Resettlement Act, 1982, is a significant piece of legislation that allowed
residents of Jammu and Kashmir who had migrated to Pakistan between March 1,
1947, and May 14, 1954, to return and reclaim their properties. This Act
stirred substantial political and legal controversies, especially regarding
national security and the question of citizenship. In 1982, the then-President
of India, Giani Zail Singh, sought the Supreme Court's advisory opinion on the
constitutionality of this Act under Article 143 of the Indian Constitution. The
main concerns involved whether allowing individuals who had migrated to
Pakistan to return would compromise national security and whether such
legislation conflicted with any provisions of the Indian Constitution,
particularly regarding citizenship, fundamental rights, and sovereignty. The
Supreme Court provided its advisory opinion but did not give a clear-cut answer
on the constitutional validity of the Resettlement Act. The advisory opinion in
this case highlights the complexities involved when legal, constitutional, and
national security issues intersect in the context of Jammu and Kashmir. |
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| Keywords | Advisory Opinion, Article 143, Displaced Person, Homeland, Resettlement Act. | ||||||
| Introduction | The Jammu and Kashmir Grant of Permit for Resettlement
Act, 1982,[1]
also known simply as the Jammu and Kashmir Resettlement Act, was a
controversial piece of legislation that sparked political and legal debates at
both the state and national levels. Its history is deeply intertwined with the
complex relationship between India, Pakistan, and the region of Jammu and
Kashmir post-Partition. The Indian subcontinent was divided into India and
Pakistan in 1947, leading to mass migration. Many people from what was then the
princely state of Jammu and Kashmir moved to Pakistan, particularly during the
initial violence and uncertainty of the Partition. Some of these migrants were
considered "displaced persons," and their property and status in the
newly divided subcontinent remained a subject of political sensitivity. Jammu
and Kashmir became a focal point of conflict between India and Pakistan, with
wars in 1947-48 and 1965 further complicating the political situation.[2]
People who had migrated from Jammu and Kashmir to Pakistan often found
themselves in legal limbo, unsure of their ability to return or reclaim their
properties in India. The Jammu and Kashmir Resettlement Act was passed by the
Jammu and Kashmir Legislative Assembly in 1982 under the government led by
Sheikh Abdullah, a prominent political figure in the region. The Act allowed
those who had migrated to Pakistan between March 1, 1947, and May 14, 1954, to
return to Jammu and Kashmir and reclaim their property.[3]
This was seen as a way to accommodate people who had left during the turmoil of
Partition but who still had emotional and legal ties to their homeland. The Act
allowed the government to issue permits for resettlement to people who had
migrated and wished to return. It was a form of legal protection for those who
sought to reclaim their properties and rights.
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| Objective of study | The objective of this paper is to do the analysis of Jammu and Kashmir Grant of Permit for Resettlement Act and advisory opinion of Supreme Court of India. |
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| Review of Literature | Historical background British India was divided in 1947 and Jammu, like many other regions, experienced brutal communal violence. The region of Kashmir remained relatively calm but Jammu witnessed severe riots between Hindus and Muslims. These riots forced thousands of Muslim families from Jammu to flee to Pakistan, leaving behind their homes, lands, and properties. This mass migration caused a significant demographic shift in the region, and the abandoned properties became a major point of contention. Over time, many of these properties, especially in the Hindu-majority areas of Jammu, were reportedly leased out to influential individuals, raising suspicions and concerns. In this context, the Jammu and Kashmir Resettlement Act was introduced, which sought to grant descendants of these Muslim migrants the right to return and reclaim their properties. The Act faced significant opposition, particularly from communities in Jammu. Many feared that the return of a large number of Muslim families could alter the region's demographics and spark further communal tensions. However, Introduced on March 8, 1980, the J&K Resettlement bill became a law in April 1982 when both house of the state legislative assembly passed it. The then governor B K Nehru returned the bill on September 18, 1982 seeking “reconsideration”[4] but the houses passed it again without any change on October 4, 1982.[5] It is interesting to note that the governor of the state uses all constitutional powers to halt this bill to become law. The Governor has the power to return a bill for reconsideration, but if the legislature passes the bill again, the Governor is compelled to either give assent or refer it to the President. This provision ensures that the Governor cannot indefinitely withhold assent to a bill passed by the legislature. Though governor gave his mandatory ascent to the bill on October 6, 1982, the piece of legislation had already been sent on September 30, 1982 for a Presidential Reference[6] to the apex court under the provisions of Article 143[7] (1) of the constitution by the then President Giani Zail Singh seeking opinion “as to whether the bill or any of the provision thereof, if enacted, would be constitutionally invalid”.[8] |
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| Main Text |
Political battle over Bill The Jammu and Kashmir Resettlement Act, 1982[9] has been a source of intense political controversy and legal debate in India since its inception. Many saw the act as a move that could allow Pakistani agents or sympathizers to enter India under the guise of resettlement, potentially destabilizing the region. The period in which the act was passed was a particularly sensitive time for Kashmir, as militancy and cross-border terrorism were on the rise. The National Conference (NC) and other regional parties in Jammu and Kashmir, which supported the act, viewed it as a way to uphold the rights of displaced Kashmiri Muslims who had migrated during partition. They argued that the act was consistent with Jammu and Kashmir’s special status under Article 370[10] (which was in effect at the time) and sought to address historical wrongs. On the other hand, national parties like the Indian National Congress (INC) and Bharatiya Janata Party (BJP) fiercely opposed the act. They saw it as undermining India's territorial integrity and national security. The BJP, in particular, used the issue to rally its base, framing the act as an example of the Congress and regional parties compromising national interests for vote bank politics. Congress leader Indira Gandhi, who was Prime Minister when the act was passed, was initially cautious in her stance but eventually came under pressure to distance herself from the legislation due to the nationwide outrage. Spearheading the tirade in support of the Resettlement Act, leader of the opposition in the state assembly, in June 2005, Abdul Rahim Rather of National Conference said that the implementation of the act could be the most important confidence-building measure between India and Pakistan as it is directly associated with the interests of the Kashmiri people across the border. Saying that confusion has been created about the act, Rather mentioned that deputy chief minister Mangat Ram Sharma of the Congress Party was misleading people by saying that this is not an act but a bill. This is not correct, Rather said.[11] The act remains legally challenged and largely symbolic of the broader tensions between regional autonomy and national sovereignty in the context of Kashmir. The comments of Supreme Court over the questions of Advisory Opinion The Supreme Court accepted the presidential reference but chose to keep the matter pending for an extended period. The case remained unresolved for nearly two decades due to the complexity of the issues involved and the sensitive nature of the Kashmir situation. No definitive ruling was given by the Court for many years, likely because the political situation in Jammu and Kashmir continued to evolve, and the security situation remained fragile, especially with increasing insurgency in the region during the late 1980s and 1990s. In November 2001, the Supreme Court took up the case again after years of inactivity. This renewed interest was partly due to the National Conference government in Jammu and Kashmir, led by Farooq Abdullah, which sought to revive the implementation of the Resettlement Act. Constitution Bench headed by the then Chief Justice of India, Dr. A.S. Anand, Mr. Justice Syed Shah Qadri, Mr. Justice N. Santosh Hegde, Mr. Justice S.N. Variava and Mr. Justice Shivraj V. Patil[12] comment on the questions. the Bench ordered ''under the provisions of Article 143, this court may respectfully decline to express its advisory opinion, if it is satisfied that it is not appropriate to do so, having regard to the nature of the questions forwarded to it and having regard to other relevant facts and circumstances. Having regard to the facts that the Bill became an Act as far back in 1982, it appears to us inexpedient to answer the question posed to us in the reference. Even if we were to answer the question in the affirmative, we would be unable to strike down the Act in this proceeding. We think, therefore, that the reference must be, respectfully, returned unanswered''.[13] The court’s power of decline of advisory opinion under 143 article However, the advisory opinion given by the Supreme Court is not binding on the President or any other authority. Furthermore, the Court has the discretion to decline to give its opinion in certain situations. The Supreme Court has the discretion to refuse to answer the President's reference under Article 143(1). The Court can decline to give an opinion if it finds that the question is hypothetical,[14] moot, or not of sufficient public importance. The Court is not compelled to express an opinion simply because the President has made a reference. For example, if the Court finds that the matter is political in nature, or that it involves issues that are better decided through the legislative or executive branches, it can choose to decline. In the case of Keshav Singh’s Reference (1965),[15] the Court exercised its discretion in formulating a response that did not answer all aspects of the reference fully. The Court's advisory opinions are also non-binding, and the Court exercises caution when dealing with political questions or matters better suited for legislative or executive resolution. Therefore, although Article 143 provides a constitutional mechanism for seeking the Court's advice, the Court retains significant power to decide when and how to engage with such references. Impact of the advisory opinion of the Supreme Court The statement by Mohammad Shafi, a senior National Conference (NC) leader and Education Minister, reflects the stance of the Jammu and Kashmir government regarding the Jammu and Kashmir Resettlement Act, 1982 after the Supreme Court dismissed the long-pending presidential reference on the act in 2001. The delay had created uncertainty over the law, but the state government saw the Supreme Court’s dismissal as a signal to move forward with the implementation of the act. Shafi urged critics to respect the Supreme Court’s ruling, implying that since the Court had dismissed the reference, there was no longer any legal basis to oppose the act. While the Court didn’t declare the act unconstitutional, it also didn’t give a green light for its immediate implementation, leaving room for interpretation about how the state government should proceed. The State Government was considering the appointment of a competent authority in line with section 1(a) of the Resettlement Act. This authority would be responsible for conducting inquiries into applications for permits submitted by individuals seeking resettlement under the provisions of section 3 of the act. The appointment of such an authority would be the first step toward the operationalization of the act, but it also indicated the government’s caution in proceeding with the matter, considering the controversies surrounding the act. Mushtaq Lone, the Minister of State for Law, confirmed that the government would move ahead with establishing the required mechanisms under the act. This would involve reviewing applications and ensuring that individuals meet the eligibility criteria laid out in the act. Section 3 of the act outlines the criteria for eligibility, which generally apply to those who migrated to Pakistan between 1947 and 1954 and their descendants. The Supreme Court’s decision in 2001 to dismiss the presidential reference was seen as clearing a legal obstacle, but the political and security concerns remain unresolved. Supreme court Stayed the Resettlement Act The Supreme Court's decision to stay the implementation of the Jammu and Kashmir Resettlement Act, 1982 marked a significant legal and political development concerning the controversial law. The interim stay came in response to two writ petitions challenging the constitutionality of the act, primarily on the grounds of national security and defence concerns. The petitions were filed by Bhim Singh, president of the Jammu and Kashmir National Panthers Party, and another individual, who challenged the constitutional validity of the Jammu and Kashmir Resettlement Act, 1982. A Bench comprising Justice G.B. Pattanaik and Justice S.N. Phukan granted the interim stay, meaning the implementation of the Resettlement Act was temporarily halted[16] while the Court considered the constitutional validity of the law. While the stay order halted the immediate implementation of the act, the legal and political debates over the act continued for many years, culminating in the dismissal of the presidential reference in 2001 but leaving the law’s future uncertain due to its deep-seated controversies. |
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| Conclusion |
The presidential reference sent by Giani Zail
Singh in 1982, asking the Supreme Court to opine on the constitutional validity
of the Jammu and Kashmir Resettlement Act, remained unresolved for nearly two
decades. The Supreme Court dismissed the reference in 2001 without providing a
definitive ruling on the law's validity, leaving the legal fate of the act
unclear. |
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