Millennium Post

Disparity in paradise

‘The women have the right to raise their voice for their own interest and men should respect it,’ the union minister of state for HRD had said. There is a ruling by the J&K high court, which bestows legal rights to  permanent female residents who have married a non-resident. It is pertinent to mention here that in 2004, the state high court, in the case of State of J&K vs  Susheela Sawhney, declared that there was no provision in the existing law dealing with the status of a female Permanent Residents (PR), who’ve married a non-resident.

The provision of women losing their PR status after marrying outside the state, therefore, did not have any legal basis. This decision was historic because it corrected an administrative anomaly and brought relief to women who married outside the state. The People’s Democratic Party government, led by Mufti Mohammad Sayeed, however tried to overturn the court’s judgement by introducing a bill styled ‘Permanent Residents (Disqualification) Bill, 2004’. This was not solo effort by Mufti. Omar Abdullah’s party, the National Conference, also backd this bill and got it passed in the assembly on 5 March, 2004. But it did not get passed in the legislative council. The bill was opposed by National Panthers Party  leader Bhim Singh, who voted against the bill in the 23-member legislative council of the state. And the bill ultimately failed to see the light of day for various reasons.

The chairperson of the state women commission too vouches for women rights, but she want to resolve the issue ‘amicably’. On the issue of suppression of fairer sex’s rights in the state, Shamima Firdous says there are problems in granting legal rights to women after tying nuptial knot with non-Kashmiri resident, as it will open the gates for ‘others’ through their spouses to acquire piece of land and engage in different works as per their interest.

Standing in support of Permanent Residents (Disqualification) Bill, Firdous said, ‘Our motto is to safeguard the rights of fairer sex as well the Constitutional validity of the Article 370. The bill will be passed by the legislative council only after the provisions of powers to women’, she assured. Rebutting Firdous, who is also a member of J&K legislative assembly, Bhim Singh charges that both the NC government and PDP are playing with the interest of permanent women residents of the state. Both parties are not serious about the rights of women.

Citing the incident of 2004 when the Permanent Residents (Disqualification) Bill was introduced in the assembly, Singh said, ‘We were not even informed about the bill and the then PDP government got passed the legislation quietly’.

Advocating the rights of women, Singh, the president of J& K National Panthers Party, says that the bill should be scrapped and the order of J&K high court should be practiced with respect to provide equal right to the non-PR married women of the state. ‘How a government can ‘take away’ the fundamental rights of J&K citizens? It’s their birth right being bestowed by the Constitution of India’, he stated.

Explaining the motive of the bill, Manish Kumar, a Delhi-based lawyer, says, ‘The 2004 Bill was presented with a view to negate the judgement passed in Susheela Sawhney case. In the said case, the full bench of the J&K high court, after referring to and analysing the relevant provisions of the pre-constitution notifications issued by the rulers of J&K, Constitution of India and Constitution of Jammu and Kashmir had held that the existing law did not disqualify a female permanent resident from remaining a permanent resident if she elected to marry a non-permanent resident’.

‘The J&K high court was, however, conscious of the power of the state legislature to enact a law in exercise of its power under Section 8 of the State Constitution, which allows it to make any law to define or to alter the definition of the Classes of persons, who are or who shall be permanent residents of the state. The 2004 bill proposes to disqualify a female permanent resident from remaining a permanent resident once they married a non-permanent resident. The proposed act seeks discrimination on ground of sex and it would be interesting to see how it stands the judicial scrutiny as the very object of the proposed act is to curtail the Fundamental Rights of a class of citizens of the state and is violative of the directive principles of state policy as contained in Section 22 of the State Constitution,’ Manish Kumar added. Does Article 370 deal only with women’s rights in the state? The answer is NO.

There are so many diplomatic issues covered under the Article 370 that needed to be addressed. This article specifies that except for defence, foreign affairs, finance and communications, (matters specified in the instrument of accession), the Indian Parliament needs the state government’s concurrence for applying all other laws. Thus the state’s residents lived under a separate set of laws, including those related to citizenship, ownership of property, and fundamental rights, as compared to other Indians.

Similar protections for unique status exist in tribal areas of the country, including those in Himachal Pradesh, Arunachal Pradesh, Andaman & Nicobar Islands and Nagaland. However it is only for the state of Jammu and Kashmir that the accession of the state is still a matter of dispute between India and Pakistan. It is still on the agenda of the UN Security Council and where the Government of India vide 1974 Indira-Sheikh accord committed itself to keeping the relationship between the union and Jammu and Kashmir state within the ambit of this article.

Under the Article 370, the Centre has no power to declare financial emergency under Article 360 in the state. It can declare emergency in the state only in case of war or external aggression. The union government can therefore not declare emergency on grounds of internal disturbance or imminent danger unless it is made at the request or with the concurrence of the state government.

In fact, the existence of an Election Commission, the Comptroller and Auditor General and other instrumentalities of federal India have rendered all this quite irrelevant. For the BJP, the continued existence of Article 370 on the statute books is atrocious, whether it is relevant or not. For the separatist All Party Hurriyat Conference, ‘It is a testament of the faith and a confidence building measure that reassures them that the state will not lose its identity, even if it is run from under the jackboot of the Indian Army.’
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