Daughters of J and K- India's most Unwanted

  • By Hari Om
  • 12 March 2010

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Moves are again afoot to humiliate  the daughters of Jammu & Kashmir and re-impose curbs on their fundamental  rights, in effect, snatch their citizenship rights. Even more disturbing was  the day the anti-daughters forces in the state chose to humiliate and disgrace  the female State Subjects and that the woman-led Congress allowed this to  happen.

The reactionary forces chose March 8  to humiliate the daughters of the state, which the whole world was observing as  the 100th International Women’s Day. In New Delhi, the Congress-led UPA was  seeking the support of Rajya Sabha members for an official bill that sought 33  percent reservation for women in the Parliament and the State Assemblies.

That very day, People’s Democratic  Party legislator Murtaza Khan introduced a Private Member’s Bill in the  Legislative Council, seeking to deprive the daughters of J&K of their  natural right to marry persons of their choice outside the state, and thereby  snatch their right to own immovable property or inherit ancestral property in  J&K, or obtain jobs with the State Government in case they marry persons  other than State Subjects. The Bill, which seeks restoration of the pre-October  7, 2002 position, is a barbarous onslaught on women’s rights.  

The 53-year-old Jammu & Kashmir  Constitution contains umpteen archaic laws which discriminate against women.  Some are so improper and humiliating that they deprive a woman resident of  J&K of elementary citizenship rights. Some are so invidious that they lay  down that the “State Subject Certificate” (SSC) issued to a woman citizen of  the state shall remain “valid till marriage,” and that a fresh SSC will be  issued to her only if she proves she has married a “State Subject”. The SSC is  a mandatory document for acquiring “immovable property in J&K”, or  obtaining jobs under the State Government.

The provisions enumerated in  Part-III of the J&K Constitution enforced on January 26, 1957, are based  wholly on the State Notification No I-L/84 or the State Subject Laws (SSL)  promulgated by Maharaja Hari Singh on April 20, 1927, to appease those  advocating the ‘son of the soil’ theory and debar “non-State Subjects” from  acquiring immovable property in the J&K territories or getting jobs in the  government.

Part III lays down that a woman  citizen of J&K marrying someone from another state of the Union will not  only forfeit her right to be called a ‘daughter of the soil’, but also the  right to get a job under the State Government, secure admission in J&K  Government-run educational, technical and professional institutions, and acquire  and own any immovable property anywhere in the State. It unequivocally says  that if a male citizen of J&K  marries even a foreigner, the spouse will automatically become a citizen of the  State!!!

Authorities in Srinagar have been  enforcing these outdated laws ruthlessly, particularly since 1956, and  subjecting women citizens to the worst kinds of inequities. Even a casual  scrutiny of the kind of treatment meted out to the Director of All Indian  Radio, Leh, Tsering Angmo, former J&K Prime Minister Bakshi Ghulam  Mohammad’s grand-daughter; and former Punjab Governor Surinder Nath’s  daughter-in-law Rubina Malhotra; and Amarjeet Kaur of Baramulla, is enough to  judge the extent to which the basic citizenship rights of women in the State  were trampled upon by the authorities before October 7, 2002.

Briefly, “Firebrand” crusader  Tsering Angmo, a Ladakhi, who was “involved  in all major social and political struggles of the 70s in J&K,”  engineered to “inspire” women, fought  relentlessly but lost her own personal battle for restoration of her  fundamental citizenship rights, including the right 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, the well-connected  gynecologist Rubina Malhotra, an MBBS from the State Medical College, moved  heaven and earth in the early 50s to get admission in the Post-Graduate course  in Medicine in J&K. All her efforts failed to carry conviction with the  biased authorities as she, like Tsering Angmo, had married a “non-State  Subject” Punjabi. Convinced that the rulers in Srinagar would not scrap the  anti-women SSLs on their own, Rubina challenged their constitutional validity  in the J&K High Court.

The story of Amarjeet Kaur of  Kashmir was no different. She had to approach the J&K High Court for  justice when “relatives” tried to usurp her “ancestral property” on the ground  that she had married an “outsider” from Punjab. Her petition like several  others, including that of Rubina Malhotra, awaited judgment by the High Court  for nearly two decades. It was only on October 7, 2002 that the Full Bench of  the J&K High Court upheld Rubina Malhotra’s plea.

The women of J&K had - apart  from taking their case to the High Court - protested from time to time against  the menace of gender bias, discrimination and exploitation, but without  achieving any breakthrough, despite the fact that certain elements in the  administration publicly admitted that the “State  apparatus is disproportionately tilted in favour of the masculine gender.”

Kashmiri rulers and their  subordinates responded to the passionate appeals by the then National  Commission for Women chairperson Dr. Mohini Giri and women’s groups in a highly  biased manner. These groups appealed to the J&K Government at a UNICEF  seminar on “Gender Discrimination in  Kashmir”, at Srinagar in the 1990s, that Part-III of the Constitution be  suitably amended to bring about parity between men and women.

The only silver-lining was that some  vague assurances were given by certain officials that they would persuade the  powers-that-be in Srinagar to accept the suggestion that “those Kashmiri women who choose to marry outside should be given a  right to get their SSCs restored, if they are widowed or divorced outside the  State”. What a concession! The deprived women had been demanding deletion  from the statute book of Part-III and asking the state authorities to bring  them under the purview of Articles 15, 16, 19 and 29 and Part-II of the Indian  Constitution, but all they got was a mere assurance.

Kashmiri leaders of all hues  repudiated women’s demands under various pretexts, which can be categorized as  untenable, ridiculous and preposterous. They said “any change in the SSLs would open floodgates for outsiders to settle in  J&K;” that “the demands of women  are a move designed to undermine the special status of the State;” and that  “the demands of women, if accepted, will  neutralize the National Conference’s efforts to get the eroded autonomy”.  Some went to the extent of asserting: “Any  attempt to amend Part-III of the J&K Constitution will harm the basis of  accession which mostly revolves round Article 370”.

Constitutional experts would surely  vouch for the fact that all the formulations linking a women’s issue with  politically sensitive ones such as the special status of J&K, have no  bearing whatsoever on the National Conference’s clamor for greater autonomy, or  on the State’s accession to the Indian Union.

The Central Government consistently  expresses inability and helplessness in intervening on behalf of the suffering  women of J&K. Minister of State for Personnel, Grievances and Pensions,  S.R. Balasubramaniam, bemoaned in the 1990s that Delhi could not do anything as  “Article 15 (A) of the Constitution, as  applicable to J&K, specially 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.”

As noted, Full Bench of the J&K  High Court took a holistic view of the problem facing the daughters of the  state, and on October 7, 2002 pronounced that a female State Subject will not  lose her status as a State Subject on marriage to a non-State Subject. The High  Court verdict displeased the National Conference and the People’s Democratic  Party.

In March 2004, an attempt was made  by the PDP-led coalition government to upturn the High Court’s landmark  judgment. It moved an official Bill which was passed in a record 6 minutes,  with all the Congress, JKNPP and BJP legislators endorsing the anti-daughters’  Bill!!!

But the Bill was declared “defeated”  in the Legislative Council by its Chairman and NC leader Abdul Rashid Dar, much  to the chagrin of the Kashmir-based legislators. The reason: the issue of  gender bias had meanwhile created a storm in Jammu, and at the national level,  with Congress and BJP denouncing the Bill as anti-women, reactionary and  out-dated.

Subsequently, when the Legislative  Council returned the Bill to the Legislative Assembly, the Congress, JKNPP, BJP  and some Independents joined hands and voted against the Bill. It was defeated  even though 46 legislators from to the National Conference, PDP and CPI-M were  in its favor.

The collapse of the Bill further  embittered the tense relations between the NC and PDP, which mutually accused  each other of ensuring its collapse. The National Conference expelled Abdul  Rashid Dar from the party on charges of hobnobbing with Congress and the PDP to  bail out the government. This was in August 2004. Had the PDP insisted on the  adoption of the Bill, the government would have collapsed immediately.

But the defeat of the Bill did not  deter the coalition government. Certain vested interests and communal and  anti-women forces in the political establishment, instead of implementing the  High Court verdict, allowed officials in the Revenue Department to endorse “valid  till marriage” on the State Subject Certificates issued to unmarried  daughters of State Subjects.

This writer approached the High  Court to seek justice for the daughters of the state. In Hari Om vs. State of J&K  & others (PIL No. 1002/2004 & CMP No. 1089/2004), the Double  Bench comprising Justices V.K. Jhanji and Y.P. Nargotra, in its interim  judgment on Sept. 24, 2004, ruled: “In  the meantime, respondents (State of J&K & others) are directed not to  make any endorsement of ‘valid till marriage’ on the State Subject Certificate  issued to unmarried daughters of State Subjects”.

Yet the anti-daughter elements in  the State Government did not implement the interim order, and dismissed the  judgment with contempt. On Jan. 27, 2005, Commissioner/Secretary to the  Government, Revenue Department, issued circular No Rev (LB) 87/74 asking the  State Subject Certificate issuing authorities to make endorsement: “The  certificate may be reissued after marriage to indicate if the lady has married  a State Subject or non-State Subject”.

Perturbed, this writer again knocked  at the doors of the High Court and sought contempt proceedings against the  J&K Government, via PIL (COA (PIL) No. 2/2005). The matter went to the  Double Bench comprising Justices V.K. Jhanji and Parmod Kohli. On July 11,  2005, the Bench stayed implementation of the impugned anti-women circular and  issued notice to the J&K Government. This had its impact on the J&K  Government and on Aug. 2, 2005, it withdrew the circular vide No.  Rev/PRC/04-WP. On Aug. 8, 2005, Justices V.K. Jhanji and Y.P. Nargotra ruled: “In view of circular dated 2nd of August,  2005, passed by respondents (read J&K Government), the grievance of the  petitioner (read this writer) stands redressed and, therefore, this Public  Interest Litigation as well as the contempt petition are disposed of having  been rendered in-fructuous. Rule, if any, issued is discharged.”

Thus the J&K High Court on four occasions delivered judgments  aimed at ensuring gender equality. The judgments were unambiguous and were  hailed by one and all, barring the reactionary, fundamentalist,  backward-looking and anti-women elements in the Valley and their opportunist  supporters in Jammu province.

It was hoped these landmark judicial  pronouncements would settle the women’s issue once for all and that the  reactionary elements would refrain from trampling upon the natural rights of  the daughters of the state. Unfortunately, the fundamentalist and  militant-friendly parties like the PDP have again started conspiring against  female State Subjects. The Permanent  Resident (Disqualification) Bill (Legislative Council Private Member’s Bill No.  4) moved by Murtaza Khan in the Legislative Council on March 8, must be  viewed in this context.

The Bill is ill-designed and  ill-conceived and, if adopted, would enslave the female State Subjects. It is  designed not only to snatch the citizenship rights of the daughters of J&K  marrying outside the state non-State Subjects, but also to snatch the same  rights of non-State Subject females marrying permanent residents of the state  after termination of their marriages, for whatever reasons.

The government should not have  allowed Murtaza Khan to introduce this draconian Bill in view of the storm that  the similar official Bill had created across the country in 2004. That Revenue  Minister Raman Bhalla did not oppose this BLACK BILL and allowed Murtaza Khan  to go ahead shows insidious influence at work to negate the High Court  judgments and deprive female State Subjects of their fundamental rights if they  marry non-State Subjects. It seems the anti-women forces have entered into an  unholy alliance to disgrace and harm women of the state and jeopardize their  legitimate rights and interests.

How else should one interpret the  action of the Revenue Minister, who belongs to the Congress, and who in 2004  opposed the Permanent Resident (Disqualification) Bill? Congress must take a  stand on gender equality and tell the National Conference that in the event of  any onslaught on female State Subjects, it will withdraw support to the  coalition government. There are reasons to believe that NC and CPI-M  legislators will join hands with the PDP and give unflinching support to the  anti-women Bill, as in 2004.

The  author is Chair Professor, Gulab Singh Chair, Jammu University, Jammu

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