Daughters of J&K: India’s most Unwanted
by Hari Om on 12 Mar 2010 9 Comments

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 clamour 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 favour.


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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