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Women of J&K who are Permanent Residents, but marry a man from outside the state, face tremendous discrimination that has been legalised. It’s time for an overhaul.
A standard definition of Gender Inequality is the idea and situation that women and men are not equal. It refers to unequal treatment or perceptions of individuals wholly or partly due to their gender. Many a times it’s a consequence of differences in socially constructed gender roles.
My take herein is with respect to the highly biased Gender Discrimination Law applicable to married women of Jammu & Kashmir, who fall into a certain category. In 1956, the UN General Assembly passed a Convention on the Nationality of Married Women which ensured that a woman’s nationality would not be affected by “either marriage or its dissolution or the change of nationality of her husband.”
Subsequent to this, the independent identity of a woman is a prerequisite to international law. However in the case of Jammu & Kashmir, this gender equality principle remains evasive wherein a woman is stripped of her roots, identity and human dignity, subsequent to the nature of her marriage.
Being a Kashmiri woman by birth, I am a victim of the fallout of a draconian Gender Discrimination Law which promulgates step-motherly treatment to the daughters of Kashmir, who marry non-Kashmiris. It snatches away the natural rights of inheritance from such Kashmiri women and renders them uprooted from their homeland for ever. There are no parallels of such disenfranchisement world over, and hence it starkly stands out as a blatant example of Gender based discrimination. On the other hand, the status quo for Kashmiri men marrying non-Kashmiris doesn’t get compromised.
In the land of Sufis and mystics, who rose above all kinds of biases and spread the message of egalitarianism, this law stands like an eye-sore. It’s not only biased but inhumane and in a modern civilized world, it reeks of appalling indifference to daughters as equal citizens. Jammu & Kashmir has meted out grave injustice to its women by virtue of an article inserted into its Constitution in 1954 and by snatching away the fundamental rights of such Kashmiri women.
On May 14, 1954, the President of India issued an order applicable to Jammu & Kashmir, which was called the Constitution Order 1954. The presidential order came into effect immediately, and superseded the Constitution Order 1950, of Jammu & Kashmir, by carrying out many modifications. A new Article 35A after Article 35 was added to the Constitution of India. However Article 35A was never presented before the Parliament of India; because the President bypassed the due process of amendment (addition/deletion of an Article) in accordance with the procedure prescribed vide Article 368.
Article 370 does not state anywhere that it confers such executive powers on the President that he can amend the Constitution, bypass Parliament, and invoke executive powers so vast and drastic that neither the Lok Sabha nor the Rajya Sabha can do anything about the amendment being carried out. Surprisingly, this ‘amendment’ to the Constitution was concealed from general audit by not mentioning the same in the text of editions of the main Constitution. Most constitutional experts were completely unaware of Article 35A and its implications till now, when it’s hotly being debated upon. Interestingly enough, Article 35A does not appear between Article 35 and Article 36, but in the Constitution as an appendix.
It may be added that the constituent power to amend the Constitution of India; by way of addition, variation or repeal of any provisions – belongs only to the Parliament under the aegis of Article 368. It reigns supreme as an essential constituent function, which cannot be violated, abdicated or handed down to the President or to any other agency of the Government. Therefore Article 35A is a violation of the basic structure and ethos of our Constitution, by virtue of the blatant gaps of inception and implementation that it entails. By virtue of its content it curbs certain basic rights enshrined in the Preamble of our Constitution.
The denial of rights to the offspring of Female Permanent Residents married to Non-Permanent Residents violates Article 14 of the Constitution of India as it is purely on the basis of sex that the constitutional right is denied to a citizen. However nothing changes for men who marry a person from outside the state. His wife becomes a naturalized citizen and his children automatically acquire all Permanent Resident Rights in J & K, with no long or short run repercussions.
The constitutional and other legal provision with respect to the Permanent Resident Law of J&K applicable to women, as enshrined in the J&K Constitution, adopted on November 17, 1956, defined a Permanent Resident (PR) of the state as a person who was a state subject on May 14, 1954, or who has been a resident of the state for 10 years, and has “lawfully acquired immovable property in the state”. The PR Law was a replication of the state subject law promulgated by Maharaja Hari Singh in 1927 and the J&K legislature could alter the definition of PR through a law passed by two-thirds majority.
Prior to 2002, the Revenue Department issued Permanent Resident Certificates (PRCs) to the female residents of Jammu and Kashmir with the endorsement ‘Valid Till Marriage’. This premise paved the way for a petition before the State High Court 14 years back when selection of a doctor was challenged on the plea that she was married to a non-state subject.
After much deliberations, challenging in the division bench of high court and keeping in view the intricacy of the matter, the reference arrived at, was: “Whether the daughter of a permanent resident of the State of Jammu and Kashmir marrying a non-permanent resident loses her status as a permanent resident of State, to hold, inherit and acquire immovable property in the State?”
In view of the majority opinion, the Full Bench in a case titled Jammu and Kashmir v/s Dr Sushila Sawhney and others held that a daughter of a permanent resident marrying a non-permanent resident will not lose the status of permanent resident of State of Jammu and Kashmir.
The State Government initially filed Special Leave Petition (SLP) in the Supreme Court against the verdict of Full Bench of J&K High Court but later withdrew the same after making an opinion that it will carry out necessary amendments in the Act governing issuance of PRCs.
There are also other broader, gender neutral ramifications of the law, including:
More specifically, when it comes to women:
Despite the fact that the Constitution of India guarantees gender equality across the country; the women of Jammu-Kashmir state are biased against viz a viz Men, by virtue of this Article. There’s a blatant violation of principle of gender equality in J & K, by virtue of this law, which takes away almost all variables of her identity if she marries a person from outside the state. Her progeny is disenabled from any inheritance from her and would cease ownership of identity and property in J & K, after her demise.
The various categories of discrimination reek of an archaic and primitive mindset which considers women as second class citizens with no progeny rights to her children, as far as education, property, employment and voting in J & K goes. After marriage, her rights in J&K get severely curtailed when her husband and children are not eligible for PRC and its privileges. Her children aren’t able to seek admission in higher education in the state, they can’t inherit property of their mother or buy property in the state, they can’t get employment in J & K and neither can they vote in assembly and local body elections. In case she gets widowed, she is refused entry into her state as a Permanent resident and therefore is considered as an outsider.
Discrimination in Property rights
If a woman owns immovable property in J&K, she is prevented from legally transferring it to her children; and in the event of her death the property it will be given to her parental relations or made over to the state as neither the NPR (Non-Permanent resident) husband nor her children will be eligible to own the property.
Gender bias in Education
Children of any female resident of the state who is married to a NPR, are not able to get admissions in any professional and technical education in Jammu Kashmir. They can’t even get state education scholarships. It gets more shocking when one considers that the right to education is declared as fundamental right in our constitution.
Gender bias on returning to J&K
The situation in certain cases is more grave where a female Permanent Resident of the State of J&K who has married a Non-Permanent Resident of the State of J&K has to come back to permanently reside in the State of J&K because of Divorce, widowhood, or for any other reasons. In any of such situations though the female continues to hold the status of Permanent Resident but the same does not go to her offspring, leading to injustice.
Gender bias in Employment
If children of the women of the State married to NPR desire to get employment in J&K they are prohibited by Article 127 of the State Constitution (employment in J&K government institutions) which restricts right to employment only to PR, but they have the double advantage of having right to employment in other states of India without restrictions.
Gender bias in Political Empowerment
Many educated women across the country have chosen to return to their roots/village for developmental work and political participation. However, the women of J&K have been illegally deprived of this benefit and further there is a denial of minority status to the deserving minorities of the State. The 73rd Constitutional Amendment Acts passed in 1992 by Parliament ensures one-third of the total seats for women in all elected offices in local bodies in rural and urban areas. Apart from one-third reservation of women in Panchayati Raj Institutions (PRIs), the act has given constitutional powers and responsibilities for a range of issues including resource management, family planning, education and health. Such reservation of women has led to political inclusion of women and the emergence of new women’s leadership. But, this category of women of J&K has no such constitutional rights.
A bill was passed by the Jammu and Kashmir State assembly unanimously in March 2004, moved by a member of the National Conference, which was than in opposition. The Congress, the BJP, the CPM and Jammu State Morcha, didn’t support the bill in the upper. The then ruling PDP-coalition government didn’t really pay attention and chairman of the legislature council adjourned the house sine die. Moreover, the bill lacked support of 2/3rd members of the council which was needed to pass it as according to section 9 of the constitution of the State any bill relating to permanent resident of the State required 2/3rd majority to pass it.
In March 2004, PDP-led coalition government made an attempt to bypass the High Court’s landmark judgment. It moved an official Bill after the tough stand of Hon’ble Supreme Court which was passed in a record 6 minutes. But the Bill was declared ‘defeated’ in the Legislative Council, as it was vehemently opposed at national level as anti-women, reactionary and outdated. But the defeat of the Bill did not deter the coalition government, who instead of implementing the High Court verdict, ordered the officials in the Revenue Department to continue endorsing ‘valid till marriage’ on the State Subject Certificates issued to unmarried daughters of State Subjects.
The initial argument in support of the proposed bill was the State subject law that Maharaja Hari Singh had promulgated vide Notification dated April 20, 1927 which provided certain safeguards and privileges for the permanent resident of the State. But logically speaking, the Maharaja’s law was not based on gender discrimination whereas the bill moved in 2004 and the present bill disqualifies only women of their permanent resident status if they married outsiders but allows men to retain their status if they married outsiders.
A further disqualification has been added in the present bill to the 2004 bill which disqualifies a woman who had acquired permanent resident status by marrying a permanent resident after divorce. Also after the death of her husband, in case she settled outside the State. All this and more make it a gross violation of basic human rights which should accrue to a woman, as an individual first.
Neither the earlier bill nor the present bill has any sanction in the legal and constitutional history of the State. Nor has it anything to do with Article 370 of the Indian Constitution which grants a special status to the State. If at all, it weakens moral basis of the Article by linking it with a gender biased bill. It in fact gives a handle to the opponent of the Article 370 who would argue that it should be abrogated because it can be used to deny equality to women. Even the Permanent Resident Act, 1957 and its rules provide no legitimacy to the present bill or that of 2004. For the rule 8 of the Jammu and Kashmir Grant of Permanent Resident Certificate does not provide for cancellation not to speak of disqualifying only women on any ground.
In fact when daughter of a senior bureaucrat of the State, S A Qadri, married Mehmood-ul-Rehman an IAS officer from outside the State in 1973, her permanent resident status and her right to inherit property of her father was declared valid by the Revenue Minister on the ground that “the constitution of Jammu and Kashmir or any law does not provide for deprivation of a permanent resident status of his or her status. Curiously the supporters of the bill argue that loss of permanent resident status to the women of the State who marry outsiders was compensated by the gain of outside women who marry citizens of the State. In both cases, women have no identity of their own and their status is determined by that of their husband.
The basic insecurity driving this bill is that outsiders, by marrying girls of the state, get property rights in the name of their wives and acquire an influence in the life of the state. However there is greater need for applying disincentives to men who marry outside than women who do so.
Mehbooba Mufti, the President of the PDP had argued in a statement to the press, “there are more reasons now that the law (which seeks to disqualify a women of her status as permanent resident of the state) should also be applied to men because, a) within last 15 years many young men have died (due to militancy related incidents); b) due to turmoil in the state so many boys have gone out for their higher studies who tend to marry their class or college mates; c) there has been an influx of Bengali, Bihari and other women in the state, who marry Kashmiri boys belonging to poor classes.” Thus according to Mehbooba, women of Kashmir are deprived of much choice. This ratio will become very disturbing unless and until people give a thought to put restrictions on boys marrying outside the state, she adds. Otherwise, she warns “the girls may have to settle down as second wife”. (Kashmir Times, 20 March 2004).
By this very logic, PR (Disqualification) Bill is applicable to women alone and does not take into account the fears she expressed above, in case of females, who are also deprived of a choice at times. In the case of many a woman from all religious denominations but especially those from displaced Hindu and Sikh communities of Kashmir, the law renders them totally rootless and discarded from the parent fabric.
These women, as of now face an acute dearth of compatible life partners from their own parent communities because of widespread scattering of its populace, lack of geographical territory/cohesiveness, cultural dilution by virtue of displacement, cultural annihilation, disorientation and disenchantment. What about the choices of these men and women and their rights to claim their place under the sun? Why should they face the double jeopardy of losing their land and their identity too?
The past baggage of our state is a major bottleneck, wherein it thwarts the development of the state on many levels, polarizes the State on gender/regional/communal lines, makes it easy bait to external and internal sabotage and has cost us unforeseen loss of life and property. All our insecurities are a consequence of our own polarization and the subsequent alienation and unrest by profiteers. Our demons can be pacified by none else, but by us alone.
In a civilized world we can’t promulgate or encourage laws or rules which take away the liberties/rights of women. Doing so, catapults us back to the dark ages of witch hunting. Moreover the Constitution of India does not recognize discrimination on the basis of gender and in this case, the only reason for discrimination is based upon this very premise. The totality of this bill and its advocacy makes it redundant eyes of law and is legally unsustainable.
It’s high time that this category of women start enjoying their legitimate rights which had got enshrined by the judgement of Hon’ble High Court in the Dr Susheela Sawney case. The stalemate needs to end and a viable law and a way needs to be drafted/paved, which aptly does justice to the status of rights of offspring of Female Permanent resident married to Non- permanent resident.
The women of J&K are the daughters of a land which revels in the glory of patron woman saints like Lala Ded whose mystical journey shredded dogmas of gender based discrimination to smithereens; a land where Zooni threw away her dysfunctional marriage to marry for compatibility and love (Was Yousuf Shah Chakk a native Kashmiri?) and become Habba Khatoon or patron poetess of Kashmir.
Now, how can such a heritage be so myopic and snatch away the legitimate rights of her daughters/betis/ humsheeras/ koors, as enshrined in our Kashmiri ethos and the Constitution?
The daughters of Vitasta/ Jhelum shall overcome despite odds; be their support, irrespective of gender. “Apni Beti Bachao aur uska ghar wapas dilaao” (Save your daughter and restore her her home).
Top image credits flowcomm, via Flickr, used under a Creative Commons license 2.0 for representational purposes only