Sometime during the middle of 2004 budget session of Jammu and Kashmir legislature, the upper house, otherwise known for its lack-lustre proceedings, grabbed some limelight as its members sat till late night to discuss a bill that had been passed within less than two minutes, without a whimper of protest from any of the political parties including BJP, in the state legislative assembly. The draft in question was the Permanent Residents Women (Disqualification) Bill, which if passed by the upper house, would have implied that women marrying non-permanent residents would lose their rights as permanent residents of the state.
Whether it was political expediency, callousness or endorsement of patriarchy, not a single legislator blinked as the ‘Ayes’ were said and the bill was over and done with. There was muted response, even defense of the bill, in Kashmir, fed on the staple myth that “demographic change could be possible by marrying Hindu women outside the state”. But women protests broke out in Jammu catching at least some of the political organisations on the backfoot. By the time, the bill went to the upper house for its assent, the political narrative had changed and after hours of discussion it fell.
Fast forward to August 5, 2019: One of the reasons in justification of reading down Article 370 and abrogating Article 35A being used is that it was aimed to protect the rights of the women. This contention is based on abject lies and myths. That women lost their permanent residency if they married a non-permanent resident and also had no right to inheritance is nothing but a brazen lie.
The J&K Constitution, which was 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 replicated a state subject law promulgated by the Dogra king Maharaja Hari Singh in 1927 following a strong campaign by Kashmiri Pandits who were opposed to the hiring of civil servants from Punjab, because it had affected their representation in the Dogra administration. Nowhere, did the Dogra Maharaja’s promulgation specify the status of women marrying outside the state. All the clauses of the State Subject law only mention ‘person’, ‘persons’ and ‘descendants’, which includes all genders.
The only clarification with respect to women in the original state subject and its amended form was: “The wife or a widow of a State Subject of any class shall acquire the status of her husband as State Subject of the same Class as her husband, so long as she resides in the State and does not leave the State for permanent residence out-side the State”.
The ambiguity on the question of gender arose in 1967 when the then Revenue Minister in J&K’s cabinet, Trilochan Dutt, issued an executive order, not validated by the legislature, to affix the stamp ‘valid till marriage’ on the State subject certificates of women. A decade later, several women challenged this in J&K High Court. The petitions, of similar nature, were clubbed together with the main petition, State of Jammu & Kashmir versus Susheela Sawhney, and on October 7, 2002, a three-judge bench of the court sat to decide on “whether the daughter of a permanent resident of the state of Jammu & Kashmir marrying a non-permanent resident loses her status as a permanent resident of the State of Jammu & Kashmir, to hold, inherit and acquire immovable property in the state?”
With only one dissenting judge, the court, by a majority decision, held that a daughter of a permanent resident marrying a non-permanent resident will not lose the status of permanent resident of the state of Jammu and Kashmir. The matter was settled. It is also a settled principle of law that if the woman is a permanent resident, her children cannot be debarred. The society is patriarchal. The constitution is not.
The second ambiguity arose in 2004 with the controversy of the PR Women (Disqualification) Bill which ultimately collapsed and was lost in oblivion.
In a Public Interest Litigation, the J&K High Court lent absolute clarity to the issue by directing the concerned government officials not to make any endorsement of ‘Valid Till Marriage’ on the state subject certificates issued to unmarried daughters of state subjects. By January 2005, the stamp ‘valid till marriage’ on the State subject certificates of women was done away with, reflecting that women marrying outside the state unquestionably enjoy equal rights of citizenship.
It is, however, a fact that many women related laws like Child Marriage Act, Sexual Violence Act in J&K either did not exist or needed to be updated and amended. Like the laws on domestic violence and protection of children from sexual violence, they could well be amended within the system that existed prior to August 5. Needless to point out that the BJP party high command maintained cryptic silence as its party leaders took to violent protests in defence of rape accused in the infamous rape and murder of an 8-year-old girl in Kathua in January 2018. Those flagging ‘women rights’ in opposition of Article 370 live in a glass house themselves, and also conveniently overlook the free education system of J&K that encouraged women to opt for higher studies and 50 percent reservation they enjoyed in all professional colleges.
Overall, J&K’s gender justice story has not been perfect. But gender-based oppression, often of much higher proportion, exists across the country. Like elsewhere, the laws were wanting and the implementation too weak.
For mending minor cracks in the wall, you don’t bring the house down.
The author is the executive editor of Kashmir Times newspaper.