Supreme Court Disposes Petitions Against 1982 J&K Law On Return Of Pre-1954 Migrants To Pakistan, Cites Non-Enforcement & 2019 Repeal

Recently, the Supreme Court disposed of a batch of petitions, pending since 1982, challenging the constitutionality of the Jammu and Kashmir Grant of Permit for Resettlement in (or Permanent Return) to the State Act, 1982.

The Court noted that the provisions of this Act never came into force, and that its operation was stayed by the Court by an order passed in 2002. Subsequently, it was repealed after the enactment of the Jammu and Kashmir Reorganisation Act, 2019.

"We find that there are four Tables appended to the Fifth Schedule of the Act. Table-3 therein is a list of “State Laws including Governor's Acts which are repealed in Union Territory of Jammu and Kashmir; and the Union Territory of Ladakh”. The impugned Act is included at Serial Number 56 of Table-3. In this manner, the Impugned Act stands repealed by virtue of Section 95(2) read with Section 96 along with Table-3 of the Fifth Schedule of the 2019 Act. The Impugned Act having been repealed, the very challenge to its constitutionality no longer survives."

A three-judge bench of Justice Surya Kant, Justice Dipankar Datta and Justice NK Singh disposed of the writ petitions as above.

The 1982 Act was enacted by the State Legislature of the erstwhile State of Jammu & Kashmir to allow individuals who were state subjects of the State before May 14, 1954 and who migrated to Pakistan after March 1, 1947, to return to the State of Jammu and Kashmir for permanent resettlement. The  Act also intended to extend this right to their descendants, spouses, and widows, regardless of whether they were ever Indian citizens or not, provided they apply for a permit and swear allegiance to the Constitutions of India and Jammu and Kashmir.

Before the 1982 Act became legislation, the President, in exercise of the powers under Article 143 of the Constitution, made a reference to the Supreme Court to know whether the 1980 Bill, if enacted, would be constitutionality invalid. However, a Constitution Bench of this Court returned the reference unanswered, considering that in the meanwhile, the bill became an Act.

The present writ petitions also came to be filed challenging the vires of the 1982 Act. On February 1, 2002, the Court imposed a stay on the 1982 Act.

When the writ petitions came up for hearing before a two-judge bench in 2008, the matter was referred to a Constitution Bench considering that the questions raised involved interpretation of the Constitution as well as provisions of the erstwhile Constitution of the State of Jammu & Kashmir. However, subsequently, it came to be listed before a three-judge bench.

In 2019, an affidavit came to be filed by the erstwhile State of Jammu & Kashmir in compliance with the Court's order clarifying that the Competent Authority under the 1982 Act was never notified and therefore, the provisions of the legislation have not been enforced to confer any actual benefit to any person.

Case Details:  JAMMU & KASHMIR NATIONAL PANTHERS PARTY v. UNION OF INDIA & ORS.|Writ Petition(s)(Civil) No(s).578/2001

Citation : 2025 LiveLaw (SC) 594

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

Mr. Vikramjit Banerjee, ASG; 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, Adv.; Ms. Maitreyee Jagat Joshi, Adv.; Mr. Astik Gupta, Adv. ; Ms. Akanksha Tomar, Adv [Respondents]