PUCL Bulletin, April 2004
Analysis of the J&K Permanent resident Bill
-- By Balraj Puri
The present government in Jammu and Kashmir state is a coalition of parties representing divergent regional aspirations. Thus base of the People’s Democratic Party is confined to Kashmir region and that of the Congress mostly to Jammu region, while Panthers Party was confined exclusively to Jammu and independents represented Ladakh.
As no institutional arrangement or objective norms for a basis of equal regional development was made, every single step of the government — recruitment and promotion of government employees, allocation of funds for various developments, relief measure for victims of militancy and so on was debated fiercely on the touch stone of regional equality and found wanting in one region or the other. As it is simply impossible to equate every region on each and every issue; completely ignoring its merit and needs and priorities of the regions, ad hoc measures widened the regional divide.
It is in this background that the issue of Permanent Resident status of women of the state instantaneously inflamed regional passions; with communal overtones. The opposition National Conference raised a furore over the compromise that the state government had made on the identity and autonomy of the state by withdrawing its appeal from the Supreme Court against the judgement of the state government which had rejected the practice of the state government of disqualifying women of their status as permanent resident if they married outsiders. In a panic reaction the government promptly tabled a hastily drafted Permanent Residents (Disqualification) Bill in the assembly to remove the lacuna in the existing position. It was passed with a voice vote without any discussion.
But soon it snowballed into a big crisis. As the BJP raised the issue at the national level, the Congress, the major party in he coalition, withdrew its support to the Bill as hastily as it had offered. It proposed that it be referred to a select committee. Demonstrations for and against the Bill started in Srinagar and Jammu. Rarely the politics of the state was so sharply divided between the principal regions and communities of the state.
Interestingly same facts and arguments are being used on both sides. Kashmir based parties — the People’s Democratic Party and the National Conference — describe any criticism of the Bill, including by the Prime Minister, the Deputy Prime Minister and Congress President, as threat to special status of the state under Article 370; under which the law on permanent residents of the state as a part of the state constitution, promulgated in January 1957 was enacted and which incorporates the safeguards for the citizens of the state provided in the state subject law promulgated by the Maharaja Hari Singh in 1927.
The opponents of the Bill similarly argue that since Article 370 stood in the way of national integration and gender justice, it should be scrapped. The RSS further called it anti-national and secessionist; as if to tempt the secessionist to rally round the Bill. A senior BJP leader described Maharaja’s law as remnant of days of British rule which was no longer valid.
These set of arguments and facts; though complementary, are based on ignorance which generate mere heat without any light. The fact is that neither the state subject law of 1927 nor the act under the state constitution (after which the earlier law in any case lapsed), provide for cancellation of the state subject; nor for different treatment of men and women. The state subject of Mrs. Ghulam Kabra and her right to inherit property was, for instance, challenged in the State High Court as early as in 1939 in Maharaja’s time on the ground that though a State Subject by birth, she had lost that status by marrying a non-state subject. The Court held that Ghulam Kabra was legal heir of the property which she could inherit.
Her status as state subject after marriage was not cancelled as there was no promise in the State Subject law to cancel a certificate once granted. Similarly, the provision made in rule 8 of the Jammu and Kashmir Grant of Permanent Resident Certificate (Procedure) Rules 1968 does not provide any ground for cancellation; not to speak of disqualifying specially women on any ground.
It was in mid sixties when the then Revenue Minister issued an executive order directing all deputy commissioners to issue certificate of permanent resident to women with the proviso “valid till marriage”. Even this order which lacked the force of law was differently interpreted. When daughter of a senior bureaucrat of the state, SAS Qadri married, Mehmood-ul-Rehman, an IAS officer from outside the state, in 1973, her status as a permanent resident of the state and her right to inherit property of her father under that was declared valid by the Revenue Minister on the ground that “the constitution of Jammu and Kashmir or any other law does not provide for deprivation of a permanent resident of the state of his or her status.”
It was against such arbitrary and contradictory decisions under an executive order that the state High Court held it to be invalid because a) it had no legislative sanction and b) it violated gender equality clause (of the constitution of the state as well India.) If the PR (Disqualification) Bill 2004 was allowed to be discussed in the Legislative Council, which was adjourned by its chairman, it would not have passed, as it could not get the required 2/3rd support. And it could not be passed again in the assembly as the Congress party had withdrawn its support to it. Even if by some miracle, it could have been passed by both the houses of legislature, it would have been rejected by a court of law as it infringes the fundamental right of gender equality.
Those who insist on arguing that a woman’s status should be determined on the basis of her husband are relying on an archaic and outmoded tradition long discarded by the civilised world and international law. The USA Cable Act had held as far back as 1922 that “a woman would retain her pre-marital nationality after marriage.” Other democratic countries followed suit.
In 1956 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.” After this, independent identity of a woman became a part of international law. This principle remains valid with or without Article 370; whether the state becomes just like any other state of India or even acquires a sovereign status.
The law minister gave a very queer argument when he admitted that “the females all around the globe are subjected to biological, civil, political, social and legal discrimination and subjugation.” But according to him right to preserve ethnic identity was guaranteed under international law. Secondly he asked where was the question of discrimination when the outside women who married citizens of the state were given the status of permanent resident. His argument rest on the notion that in both cases status of women was determined by that of their husbands. Outside women have as much right to maintain their pre-marital status after marrying a citizens of the state as the women of the state have to maintain their pre-marital status after marrying outsiders. Further in order to maintain purity of all ethnic identities, it is equally important that all men who marry outside women should be disqualified as permanent residents of the state. That would meet the requirements of the Constitution of the state and modern concept of gender equality. For complete ban on inter-ethic marriage within or outside the state would again not be permissible under the Constitution that the state has adopted.
Ironically, the bogey of autonomy of the state is being raised by those who were mainly responsible for its erosion, constitutionally and politically. But by isolating Kashmir from the liberal opinion of outside the Valley they are not making its autonomy and identity securer and are doing great disservice to the cause of Kashmiris. Yours etc.
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