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J&K's latest legislation: As perverse as its roots

March 12, 2004

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.

Arvind Lavakare

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