Dr Shreeya Bakshi
‘Justice delayed is Justice denied’ is a very common saying but in the state of Jammu and Kashmir, the situation of women was so vulnerable that even after a delay of seven decades, the daughters of Jammu and Kashmir (J&K) are quite happy with the abrogation of Article 35A. Since 70 years, the politics of exclusion of daughters from the state of J&K on marrying a non-permanent resident was going on. The two regional political parties of J&K i.e., National Conference and People’s Democratic Party which are Valley centric parties were throwing the ball of passing Permanent Resident Disqualification Bill time and again in each other’s court.
Prior to 2002 judgment, daughter of the state if married to a non-permanent resident would lose each and every right in the state of J&K which was a sheer violation of human rights, fundamental rights as well as legal rights. It was very clearly visible when the state machinery itself discriminated between daughters and sons of the state. The state laws of J&K very categorically stated that if a son/male of the state marries a female from outside the state and even outside the country, his wife as well as off springs will be granted the status of permanent resident of the state. On the other hand, the state very specifically mentioned, that if a daughter/female of the state marries a male from outside the geographical boundaries of the state, that daughter would no longer be treated as a daughter of the state i.e., she would cease to be a permanent resident of the state. As a result, she was compelled to resign her job, she was not be able to buy any property in the state nor she could own the property of her parents, contesting election was a far distant dream, she could not even cast vote in her own state, and the list of implications is so long. At that time, marriage used to be a very calculated affair for daughters of the state or a future deciding factor. The whole future and life of the daughter of the state was dependent on the geographical location of her husband’s home.
In 1927 many western educated men still held key positions within state administration. So Maharaja Hari Singh, the fourth and the last Dogra ruler of the state, attempted to soothe the ruffled feelings of his subjects by reasserting the rights of his subjects over outsiders. State legislation seems to be designed to keep non-residents out. Maharaja’s legislation was not at all gender biased. But following a 1927 notification, the legal notion of “state subject” has been modified in a way that has produced extremely discriminatory effect by enforcing the ‘resident’ status or ‘domicile’ of a husband upon a woman. Under the broader umbrella of Article 370 and and specifically after the insertion of Article 35A in the Constitution of India, the political parties for their own vested interests kept on changing the definition of state subject. They replaced the term ‘state subject’ with ‘permanent resident’ and defined it in a manner which was discriminatory against the women community of the state.
In the year 2002, a remarkable Full Bench decision was given on Oct 7, in which Justice Jhanji and Doabia made it clear that, “The daughter of a permanent resident marrying a non-permanent resident will not lose the status of permanent resident in the state of Jammu and Kashmir.”
It sounds as if women of J&K prior to 2002 judgment were living in a medieval era, where the laws were very typical and strange. The judgment of 2002 allows daughter of the state to retain all her rights in the state even after marrying upon a non-permanent resident but it was a ‘Half Judgment’ as the spouse and the children of the daughter of the state were not granted any rights within the state. But even after the decision of High Court, the discussion on status of women on marrying non-permanent resident was very common among the political circles in the state.
In 2004, the Permanent Resident Disqualification Bill (PRC Bill) was moved by a member of National Conference (NC) and was passed in Lower House but did not get 2/3 majority in Upper House. The Bill was passed in just ten minutes by the State Legislature on March 5, 2004 and awaited only the state Governor’s assent before becoming a Law.
It certainly seems improbable that in such a short period of time the State Legislature would have had time to consider all the implications of withdrawing state-subject rights from women on marrying non state subject, as envisaged in the Bill. However, as it created a lot of controversy, it was stalled thereafter and could not be made in to a Law because of the interference of Centre.
Again, in 2010, the PRC Bill was introduced by People’s Democratic Party (PDP) in Legislative Council with certain more clauses. But On April 5, 2010, this Bill was dropped due to a “technical flaw”. So, it could not be initiated in the Upper House.
A very interesting and significant aspect of the politics of PRC Bill was that the two regional political parties of the state: PDP and NC who generally remain in opposition joined hands over this issue of PRC. They have constantly and continuously supported and introduced this Bill in the State Legislative Assembly and Council. Time and again these two parties have tried to make this Bill a ‘Law’. Another important thing which is worth mentioning here is that when PDP was in government, NC introduced the PRC Bill and when NC was in government, PDP introduced the Bill which signifies that when these regional political parties are in opposition then only they used to raise the issue of PRC Bill probably, both were doing vote bank appeasing politics and were also creating fear and other myths among people regarding the granting of rights to women on marrying non-permanent residents.
PRC Bill demanded by implication, an unquestioning surrender to a state by making marriage a carefully calculated act to be determined primarily by location rather than consideration of mutual likes or congeniality. The human angle is completely ruled out. Thus, evident in the Bill is not only the patriarchal bias characteristic of the state system but also violation of the very spirit of Human Rights.
But now after the 272 order no., i.e., Constitutional Order of August 2019, which superseded the Constitutional Order of May 1954, Article 35A has been fully scrapped and abrogated. Now the concept of permanent resident or non-permanent resident in the state of J&K does not hold any significance. Now all the residents of J&K will be treated at par. There will be no space of any discrimination between the daughters and the sons of the state. The daughters of the state will enjoy all the Fundamental as well as Legal Rights granted to them by the Supreme Constitution of India. Now, Article 14, 15, 16, 19, 20 and 21 i.e., right to equality, right to freedom, right to life and personal liberty will be granted to the daughters of the state. Such kind of amendment is a big blow to all those who are gender insensitive and have typical patriarchal mindset in the contemporary times. Now the struggle of the daughters of the state of J&K has come to an end as they will not be the victims of the politics of exclusion any more. Now their identity will be of theirs and not of their father’s or husband’s.
‘History is His story but to know the Complete History, we need to know Her story’
After 72 long years of independence, the daughters of the state of Jammu and Kashmir are free in the true sense. They are now having a sense of being treated as equal humans in the largest democracy of the world. They are now free to take their very personal decision of selection of spouse irrespective of the geographical location. The real meaning of Empowerment i.e., decision making will further strengthen them and boost their morale which will surely compel them to consider themselves as stakeholders in the process of development of the state and of the country as well. No more discrimination between the daughters and sons of the state will be done. Finally, the day has arrived when both of them are treated at par. It will not be incorrect to say for Jammu and Kashmir,
“The thing to keep in mind is that laws are framed by those who happen to be in power and for the purpose of keeping them in power.”
(The author is Assistant Professor Department of Sociology and Social Anthropology Central University of Himachal Pradesh, Dharamshala, India)
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