Author: Arvind Lavakare
Publication: Rediff on Net
Date: March 12, 2004
URL: http://www.rediff.com/news/2004/mar/12arvind.htm
March 7 was International Women's
Day. In a tragic irony, however, screaming newspaper headlines on the next
day pointed to what amounted to a rape of women's rights in our very own
Jammu and Kashmir.
The state assembly's passage of
the Permanent Residents (Disqualification) Bill two days earlier had aroused
such a national outcry that the country's prime minister, no less, was
compelled to phone J&K's chief minister to urge a rethink and resolve
the burning issue instead of allowing it to be fanned further.
Sonia Gandhi too reacted angrily,
dashing off a letter to the state's CM that 'the Bill curtails the rights
of women' and should be deferred, although, in another irony, her party
had, as a coalition partner of the Mufti Mohammed Sayeed government, supported
the Bill in the state assembly. This action of the Congress president was
pathetic considering that her party has more seats in the assembly than
the Mufti's party; clearly, the famous Congress high command is not in
close touch with its state leaders and the latter don't care to consult
it even on sensitive, volatile issues such as women's rights.
To complete the irony, the subject
Bill was the child of the Mufti's People's Democratic Party that is headed
by a woman.
As happens often enough in India
with regard to legal matters, there was a fair amount of confusion over
the exact contents of the Bill. It was initially put out by newspapers
that those J&K women who enjoyed the special rights of 'permanent residents'
(of which more anon), of the state would be deprived by the Bill of all
of them, including the right to immovable property, if they married men
from outside the state.
However, Mangat Ram Sharma, a Congressman
and deputy chief minister of J&K, asserted that a woman marrying a
non 'permanent resident' would nonetheless inherit the property as per
the personal law of her religion. (The Hindu, March 9). Mehbooba Mufti,
the chief minister's daughter and president of his party, added to the
confusion by stating 'A girl marrying outside the state does not lose her
rights. She will continue to inherit property. The only thing is that she
cannot transfer it (property) or sell it to a person outside the state,
including to her husband.' (The Asian Age, March 10).
Whatever the truth and whatever
the spin that some J&K legislators may be attempting to put on it,
the Bill they have passed undoubtedly seeks to diminish the rights that
the state's women enjoyed earlier. And it's a detestable diminution all
right. That fact and the complex business of 'permanent residents' evoked
comments that reflected pique and perplexity in equal measure.
Thus, in its first editorial of
March 8, The Asian Age wrote, 'Since the reasoning behind the legislation
is all so confusing and warped, inconsistencies follow -- why should property
and inheritance be linked to marriage is baffling indeed, especially since
the matter is supposed to be resolved within the ambit of the Indian Union.'
Now that comment is true of 27 out of the 28 states and of the seven Union
Territories that constitute the Indian Union. But it's just not true of
the 28th state -- the state of Jammu and Kashmir that has always demanded
for itself 'a special status' and been granted it by all governments in
Delhi from 1950 onwards -- and never mind if the state is always begging
for alms from the national exchequer.
Indeed, the roots of the perversity
of J&K's latest legislation as well as of the dangerous distortions
of the past lie in that 'special status,' in the fact that J&K is the
only state to have its own constitution which, moreover, has the protection
of Article 370 of the Indian Constitution.
Section 6 of the J&K State Constitution
(which came into full effect from January 26 1957) creates a special category
of citizens called 'permanent residents' and defines severe qualifications
aimed at limiting that elite class. Section 9 of the state constitution
empowers the J&K legislature to make laws i. altering the definition
of a 'pr' ii. conferring on 'prs' any special rights or privileges and
iii. regulating or modifying any special rights or privileges enjoyed by
'prs.' It is this last clause which the latest Bill has exploited to take
away from married women the 'pr' rights of property they earlier enjoyed
when not married. The latest Bill is perverse, yes, but it is legally valid
because, it has also been passed, not by a simple majority, but, as mandated
by Section 9, by not less than two-thirds of the total membership of the
House.
Although the above provisions of
the J&K constitution represent a blatant violation of the fundamental
right of equality enshrined in the Indian Constitution, Article 370 of
the latter document was used 50 years ago to condone and protect all such
violations.
By just one clause in the Presidential
Order issued under Article 370 on May 12, 1954, it was ordained that notwithstanding
anything contained in the Indian Constitution, no law i. altering the definition
of J&K's 'prs' or ii. conferring special rights on them or iii. imposing
restrictions on other persons (i e those who are not 'prs') shall be held
to be void on the ground that it abridges or takes away the rights of other
citizens of India.
Thus, even a state scholarship is
legally denied to a non 'pr.' And Arvind Datar, a senior counsel, points
out the case of one Bachan Lal Kalgotra that went up to the Supreme Court
in 1987. It seems that Mr Kalgotra, a Hindu, left Pakistan in 1947 and
migrated to J&K. In course of time, he obtained citizenship of India
and, until 1987, he had lived in J&K for 40 years. However, under the
pernicious definition of 'permanent resident,' he, although a citizen of
India, suffered the following disabilities in J&K:
* he was not eligible to be a member
of the Village Panchayat
* he was not eligible to take part
in state elections;
* he was not eligible to purchase
land or other property in the state
* he was, under Rule 17 of the
Jammu and Kashmir Civil Service Recruitment Rules, not entitled to any
government post.
This inhuman denial, mind you, even
to an Indian citizen who had lived as a non 'pr' in J&K for 40 years!
In what constitutes a shameful commentary on our democratic pretensions
and a mockery of the ruckus raised by our mushrooming human rights activists
in recent years, the Supreme Court of India cited the blanket exemption
given by the above clause in the Presidential Order under Article 370 to
plead its inability to redress the deprivations inflicted on Mr Kalgotra
and thousands of other non 'prs' of J&K.
The latest rape of married women's
rights in J&K is thus only an addition to the long list of perversities
brought on this nation by the use of Article 370 which, in short, enables
the President of India, acting on the advice of his council of ministers
in Delhi, to pamper the ego of the J&K state by exempting it from,
or modifying for it, many legal and constitutional obligations set out
for the rest of the country.
For example, it's through the means
of Article 370 that among the dozens of laws of Parliament which are not
applicable to J&K are Indian Penal Code, 1860, Prevention of Corruption
Act, 1988, and Religious Institutions (Prevention of Misuse) Act, 1988;
and if you've at any time wondered why CBI has never been entrusted with
a single case from J&K, it is because the rules regarding that topmost
investigating agency are simply not applicable to that state. Similarly,
several provisions of the Indian Constitution have been modified or excluded
in their applicability to J&K.
This 'special status' to J&K
is why M P Jain, a constitutional authority, has, on page 434 of his book
Indian Constitutional Law (Wadhwa & Company, Nagpur, 4th edition reprint,
2002), concluded that 'the State (J&K) has a much greater measure of
autonomy and power than enjoyed by other States and Centre's jurisdiction
within the State is much more limited than what it has in respect to other
States' -- a fact that ignoramuses overlook when they empathise with J&K
rulers' demands for greater autonomy, and react violently to demands for
abrogation of Article 370. And, yes, because no government has had the
spine to remove it, Article 370 has remained as 'Temporary' in our Constitution
since its inception on January 26, 1950.
Don't be at all surprised then if
the J&K legislative council, where the Bill now lies, passes it with
impunity. It will be just one more time that the most arrogant state in
the country cocks a snook at the whole nation.
