Prof Hari Om
JAMMU: Convinced that biased authorities in Jammu and Kashmir would not grant her citizenship rights, Suman Gupta of Jammu, who was married outside the State to a ‘non-State Subject’, approached Governor N.N Vohra in May 2016 to intervene on her behalf and on behalf of other daughters of the State married outside Jammu and Kashmir so that she and ilk obtained their natural right to exercise all the rights available to the ‘Permanent Residents’ of the State under the Jammu and Kashmir Constitution. Her representation had “sought the status of women belonging to Jammu and Kashmir State who married to ‘non-State Subjects’ but were compelled to return to their parental homes due to death of their husband or divorce or other reasons”. The Governor appreciated her plea and grievance and forwarded the whole case to Chief Minister Mehbooba Mufti vide his D.O. No. GS-967 (G) APL-HCM/161, dated 5th May, 2016 for necessary action in the matter.
Sadly, the Government of Jammu and Kashmir took no action for more than nine months. On 27th February, 2017, it suddenly announced constitution of a six-member committee (all Kashmir) under Advocate General vide Govt Order No. 49-Rev of 2017, dated 2nd February, 2017. The committee was charged with the responsibility of framing “guidelines with regard to issuance of Permanent Resident Certificate in favour of females”. The committee was asked to submit its report within two months.
Why guidelines are needed for issuance of Permanent Resident Certificate (PRC) in case of females and why no such guidelines for male citizens of Jammu and Kashmir? How could Jammu and Kashmir Government differentiate between male and female citizens of the State?
The answer lies in the 60-year-old Jammu and Kashmir Constitution. It contains umpteen archaic laws which discriminate against women of the State. Some of them are so improper that they deprive a woman resident of Jammu and Kashmir of her elementary citizenship rights. And some of them are so discriminatory that they lay down that the ‘State Subject Certificate’ (now called PRC), a mandatory document for acquiring immovable property in Jammu and Kashmir, obtaining jobs under the State Government and issued to a women citizen of the State, shall remain “valid till marriage” and that a fresh Permanent Resident Certificate will be issued to her only if she proves that she has married a “State Subject”. (This writer approached Jammu & Kashmir High Court in 2004 against this atrocious practice of making endorsement of “Valid till marriage” on the PRCs issued to unmarried daughters of State Subjects. The High Court upheld my plea (PIL No. 1002/2004 and CMP No. 1089/2004) and on 9th September, 2004 said: “In the meantime, respondents (Government) are directed not to make any endorsement of ‘Valid till marriage’ on the State Subject Certificate issued to unmarried daughters of State Subjects”.)
Take, for instance, the provisions as enumerated in Part III of the Jammu and Kashmir Constitution enforced on 26th January, 1957. These are based wholly on the State Notification No. 1-1/84 or the State Subject Laws (SSLs) promulgated by Maharaja Hari Singh on 20th April, 1927, to debar ‘non-State Subjects’ from acquiring any immovable property in the Jammu and Kashmir territories or getting jobs in the government. Part III lays down that a woman citizen of Jammu and Kashmir marrying someone from some other State of the Union, will not only forfeit her right to be called the “daughter of the soil”, but also the right to get job under the State Government, secure admission in the Jammu and Kashmir Government-run educational, professional and technical institutions, and acquire and own immovable property anywhere in the State. It also unequivocally says that if a male citizen of Jammu and Kashmir marries even a foreigner, the spouse will automatically become a citizen of the State.
The authorities in Jammu and Kashmir have been enforcing these outdated laws with utmost vigour and quite ruthlessly, particularly since 1956, and subjecting women citizens of Jammu and Kashmir to some of the worst kinds of inequities. Even a casual scrutiny of the kind of treatment meted out to the former Director of All-India Radio, Leh, Tsering Angmo; former Jammu & Kashmir Wazir-e-Azam Bakshi Ghulam Mohammad’s granddaughter and former Punjab Governor Surinder Nath’s daughter-in-law, Rubina Malhotra; and Amarjeet Kaur of Baramulla, Kashmir, would be enough to determine the extent to which the basic rights of women of the State have been trampled upon by the authorities over the past 51 years. A brief elucidation in this regard would be in order.
“Firebrand” crusader Tsering Angmo, who hails from Ladakh and was “involved in all major social and political struggles of the 1970s in Jammu and Kashmir”, engineered to “inspire” women, fought relentlessly and valiantly but lost her own personal battle – battle for the restoration of her fundamental citizenship rights, including the one to “own a house legally in her native place”. What turned out to be the prime cause of her failure was her marriage with an “outsider” from Uttar Pradesh.
Likewise, gynaecologist and well-connected Rubina Malhotra, who had done her MBBS from the State Medical College, moved heaven and earth in the early 1950s to get admission in the Post-Graduate Course in Medicine in Jammu & Kashmir. But all her efforts were to no avail. Her only fault: She, like Tsering Angmo, had married a “non-State Subject” Punjabi.
Convinced that the rulers in Kashmir would not scrap the anti-women SSLs on their own, Rubina ultimately challenged their constitutional validity in the Jammu and Kashmir High Court.
The story of Amarjeet Kaur of Kashmir was no different. She too had to approach the Jammu and Kashmir High Court for justice when her “relatives” tried to usurp her “ancestral property” on the ground that she had married an “outsider” from Punjab. And her petition, like several other similar cases, including that of Rubina Malhotra, awaited judgement by the High Court for years. It was only on 7th October, 2002, that the High Court gave a verdict in favour of the women of the State that truly empowered them. A three-judge Bench headed by Justice V.K Jhanji announced that women of the State marrying outside will continue to be “permanent residents” of the State. The other two Judges on the Bench were Justice T S Doabia and Justice Muzaffar Jan. The judgement did empower daughters of Jammu and Kashmir married to “non-State Subjects”. But it appears from the plea of Suman that the authorities in Jammu and Kashmir continue to discriminate between male and female citizens of the State. How else should one interpret the reasons behind the constitution of six-member committee in February 2017?
It needs to be underlined that women of Jammu and Kashmir have been – apart from taking their cases to the highest Court of the State – protesting against gender bias, discrimination and exploitation for quite sometime, but without achieving any breakthrough despite the fact that the authorities in Jammu and Kashmir publicly admit that the “state apparatus is disproportionately tilted in favour of the masculine gender”.
The response of the Kashmiri rulers and their subordinates to the passionate appeals made of National Commission for Women (NWC) and assorted women’s groups from time to time has been almost identical. The fact of the matter is that Kashmiri leaders of all shades of opinion repudiate the women’s demands under several pretexts, which can be categorised as untenable, ridiculous and preposterous. For example, they say that “any change in the SSLs would open floodgates for outsiders to settle in Jammu and Kashmir” and that the “demands of women are a move designed to undermine the special status of the State”. They also say that the demands of women, if accepted, will neutralise their efforts to get the eroded autonomy. Some of them even go to the extent of asserting that “any attempt to amend Part III of the Jammu and Kashmir Constitution will harm the basis of accession which mostly revolves round Article 370”.
Constitutional experts would surely vouch for the fact that all these formulations linking a women’s issue with politically sensitive ones such as the special status of Jammu and Kashmir, have no bearing whatsoever on the Kashmiri leaders’ clamour for greater autonomy or self-rule or on the State’s accession to the Indian Union.
As far as the Central Government is concerned, it consistently expresses its inability and helplessness in intervening on behalf of the suffering women of the State. In fact, the Union Government bemoans that Delhi cannot do anything as “Article 15(A) of the Constitution, as applicable to Jammu and Kashmir, specifically provides that no law defining the class of persons who are or shall be permanent residents of the State shall be void on the ground that it is inconsistent with rights conferred on other citizens of India”.
The rulers of Kashmir would do well to take cognisance of women’s demands and woes and introduce reforms that establish equality between man and woman in all matters. The best course would be to delete from the statute book Part III and bring Jammu and Kashmir under the purview of Articles 15, 16, 19 and 29 and Part II of the Indian Constitution.
Such a move would not only end the gender bias, but also enable minorities and all those who migrated to Jammu and Kashmir from Pakistan in 1947 to lead a dignified life and enjoy all fundamental rights. Everything is well within the competence of the State Government. For, Jammu & Kashmir has its own Constitution, which gives unbridled powers to the legislature to amend it as many times as the State Government wishes, or to adopt any number of Central laws.
It would be a crime against God and women to continue to treat hapless Suman Guptas of Jammu, Kashmir and Ladakh in the manner the Kashmiri Muslim dominated successive governments in Jammu and Kashmir have been treating since decades. They deserve full citizenship rights as they are the legitimate daughters of the State.
