Kiran Raj

The Supreme Court of India, three Judge Bench comprising of Justice Surya Kant, Justice Dipankar Datta, and Justice Nongmeikapam Kotiswar Singh, disposed of a series of writ petitions challenging the constitutionality of the Jammu and Kashmir Grant of Permit for Resettlement in (or Permanent Return to) the State Act, 1982. The court recorded that the impugned Act, although placed on the statute book, was never brought into force, never acted upon, and was eventually repealed by legislative action following the enactment of the Jammu and Kashmir Reorganisation Act, 2019.

The batch of writ petitions, originally initiated in the early 1980s and early 2000s, questioned the constitutionality and legislative competence behind the Jammu and Kashmir Grant of Permit for Resettlement in (or Permanent Return to) the State Act, 1982. The Act aimed to permit persons who were State subjects of Jammu and Kashmir as on or before May 14, 1954, and who had migrated to Pakistan after March 1, 1947, to return to Jammu and Kashmir for permanent resettlement. The law extended potential benefits to their descendants, spouses, and widows, subject to the fulfilment of conditions including application for a permit and swearing allegiance to the Constitutions of India and Jammu and Kashmir.

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The Bill, which later became the impugned Act, was passed by the State Legislature of Jammu and Kashmir in April 1982. The Governor initially returned the Bill with reservations. Meanwhile, the President of India, invoking Article 143 of the Constitution, made a Special Reference (No. 1 of 1982) to the Supreme Court, seeking an opinion on whether the Bill, if enacted, would be constitutionally invalid.

Despite the Governor's reservations, the State Legislature passed the Bill once again in its original form. Consequently, the Governor accorded assent on October 6, 1982, and the Bill became law. Following this, multiple writ petitions were filed, challenging the enactment on constitutional grounds and questioning the legislative competence of the State Legislature.

The Supreme Court, upon taking note of the pending reference under Article 143, directed the writ petitions to be listed after the reference was answered. On November 6, 2001, a Constitution Bench of the Supreme Court declined to answer the Presidential reference, observing:

"Having regard to the fact that the Bill became an Act as far back as in 1982, it appears to us inexpedient to answer the question posed to us in the Reference... We think, therefore, that the Reference must be, respectfully, returned unanswered."

Following this, additional writ petitions were filed. By order dated February 1, 2002, the Supreme Court imposed a stay on the implementation of the impugned Act. When the matters came before a Division Bench on October 23, 2008, noting the constitutional implications and the need for authoritative interpretation, the matters were referred to a Constitution Bench. However, an administrative direction by the then Chief Justice led to their listing before a three-judge Bench.

Records show intermittent listings over the years, including brief hearings such as that of January 9, 2019, when the matter was directed to be posted after the formation of an elected government in the State. Meanwhile, in compliance with an earlier court order dated December 13, 2018, the State of Jammu and Kashmir filed an affidavit dated January 7, 2019, acknowledging that no Competent Authority, as defined under Section 2(a) of the impugned Act, had ever been notified. As such, no applications had been invited or received, and the Act was never operationalised.

Counsel representing both petitioners and the Union of India confirmed that in the absence of notification of a Competent Authority and without any applications received, the impugned Act remained non-operational from 1982 until it was stayed in 2002.

The Bench observed that "the Impugned Act never came into force as it had not been acted upon in any manner." No steps were taken to implement the provisions, nor was any authority constituted to oversee the intended resettlement procedure. As a result, "no provision thereof was thus ever given effect for the purpose of conferring any actual benefit to any person(s)."

The Court further recorded the significant legislative development during the pendency of these writ proceedings — the enactment of the Jammu and Kashmir Reorganisation Act, 2019, which came into force from August 9, 2019. Section 95(2) and Section 96 of the Act empowered the Central Government to adapt or repeal existing State laws listed in the Fifth Schedule to the Act, to facilitate legal transition post-reorganisation.

"It may, thus, be seen that the laws enlisted in the Fifth Schedule to the 2019 Act... have been applied in the manner as provided therein to the Union Territory of Jammu and Kashmir and the Union Territory of Ladakh," the judgment stated.

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The Court noted that Table-3 of the Fifth Schedule includes the list of State laws and Governor’s Acts repealed in the Union Territories. The Jammu and Kashmir Grant of Permit for Resettlement Act appears at Serial No. 56 of this Table.

"In this manner, the Impugned Act stands repealed by virtue of Section 95(2) read with Section 96 along with Table-3 of the Fifth Schedule of the 2019 Act," the Bench observed.

The Court concluded that the petitions had become infructuous, as the challenged statute no longer existed.

"The Writ Petitions stand, accordingly, disposed of in the above terms."

"As a result, pending interlocutory application, if any, also stands disposed of."

Advocates Representing the Parties:

For the Petitioners: Ranjit Kumar, Senior Advocate; Ms. Anu Mohla, AOR; Mr. Saeed Qadri, Advocate; Mr. Saahil Gupta, Advocate; Mr. Danish Ali, Advocate; Mrs. Pooja Kumari, Advocate; Mr. Lakshmi Raman Singh, AOR; Mr. Ajit Singh Pundir, AOR; Mr. Arijeet Singh, Advocate; Mr. Dinesh Kumar Garg, AOR; Mr. Abhishek Garg, Advocate; Mr. Dhananjay Garg, Advocate; Mr. B.S. Billowria, Advocate; Ms. Anu Kushwaha, Advocate; Mr. Manzoor Ali Khan Kacho, Advocate; Mr. Sujoy Mondal, Advocate; Mr. Satish Vig, AOR

For the Respondents: Mr. Vikramjit Banerjee, Additional Solicitor General; Ms. Sushma Suri, AOR; Mr. B. Krishna Prasad, AOR; Mr. Subhash Sharma, AOR; Mr. P. Parmeswaran, AOR; Mr. Pashupathi Nath Razdan, AOR; Mr. Parth Awasthi, Advocate; Ms. Maitreyee Jagat Joshi, Advocate; Mr. Astik Gupta, Advocate; Ms. Akanksha Tomar, Advocate

Case Title: Jammu & Kashmir National Panthers Party versus Union of India & Others

Case Number: Writ Petition (Civil) No. 578 of 2001 (with connected matters)

Bench: Justice Surya Kant, Justice Dipankar Datta, Justice Nongmeikapam Kotiswar Singh

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