Dr Ganesh Malhotra
On 20th April 1927 Maharaja of J&K issued a notification with The Notification No.1-L/84. The definition of State Subject has been sanctioned by His Highness the Maharaja Bahadur vide Private Secretary’s letter No.2354 dated 31 January, 1927 to the Revenue Member of Council. It divided persons into four classes which includes persons born, settled, permanently residing and companies registered with the State.
Subsequently, His Highness the Maharaja Bahadur issued Notification on 27 June 1932 and 14 March, 1939 published in the Government Gazette No.13-L/1989 dated 24 March 1989 to determine the status of Jammu and Kashmir State Subjects in foreign State as to the position of their nationals in the State, that all the emigrants from the Jammu & Kashmir State to the Foreign territories shall be considered State Subject and also the descendents of these emigrants born abroad for two generations.
In 1954 Government of J&K passed PRC law to further define the Permanent residents of Jammu and Kashmir.
Any person who is or is deemed to be the citizen of India under provisions of constitution of India shall be permanent resident of State if on the 14th day of May 1954.
(a) Was a State subject of class I or class II
(b) Having lawfully acquired immovable property in the State, he has been ordinarily resident in the State for not less than ten years prior to the date.
(c) Any person who before 14th day of May, 1954 was a state subject of class I or class II having migrated after 1st day of March, 1947 to the territory, now included in Pakistan returns to state for resettlement in the state or for permanent return under the authority of any law by this State legislature shall on such return be given PRC.
State Subject of Class I or II shall have the meaning assigned in the {State Notification No.L/84 dated.20-4-1927 read with State Notification No.13/L dated.27th June 1932.
All the laws framed by Maharaja Hari Singh or subsequent Government were Gender neutral. They defined the Permanent resident not Male permanent resident or female resident. But later on notwithstanding anything in PRC act the concept of “Valid Till Marriage” got introduced in it without any legal sanction.
Up to 2002, the Revenue Department was issuing Permanent Resident Certificates (PRCs) to the female residents of Jammu and Kashmir with the endorsement as “Valid Till Marriage”. This became ground for a petition before the State High Court about 15 years back whereby selection of a doctor was challenged on the plea that she was married to non state subject.
The judgment of Single Judge whereby selection was quashed was challenged in the Division Bench of J&K High Court and keeping in view the involved legal issue a Full Bench comprising of Justice V Jhanji, Justice T Doabia and Justice M Jan was constituted.
The reference before the Full Bench was: “Whether the daughter of a permanent resident of the State of Jammu and Kashmir marrying a non-permanent resident loses her status as a permanent resident of State, to hold, inherit and acquire immovable property in the State?”
In view of the majority opinion, the Full Bench in a case titled Jammu and Kashmir Versus Dr Sushila Sawhney and Others held that a daughter of a permanent resident marrying a non-permanent resident will not lose the status of permanent resident of State of Jammu and Kashmir. Though the State Government initially filed Special Leave Petition (SLP) in the Supreme Court against the verdict of Full Bench of J&K High Court but later withdrew the same after making an opinion that it will carry out necessary amendments in the Act governing issuance of PRCs.
In March 2004, an attempt was made by the PDP-led Coalition Government to bypass the High Court’s landmark judgment. It moved an official Bill after the tough stand of Hon’ble Supreme Court which was passed in a record 6 minutes.
But the Bill was declared “defeated” in the Legislative Council. The main reason was that the bill had created a storm in Jammu and at the national level as anti-women, reactionary and out-dated.
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 its member from the party on charges of hobnobbing with Congress and the PDP to bail out the Government.
But the defeat of the Bill did not deter the Coalition Government. Instead of implementing the High Court verdict, officials in the Revenue Department continued to endorse “valid till marriage” on the State Subject Certificates issued to unmarried daughters of State Subjects.
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”.
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”.
The petitioner 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.
Unnecessary confusion has been created to implement the judgement of Hon’ble High Court in Dr Susheela Sawney case and thereafter. After 12 years of Judgement the situation seems to be at the same point.
A lady, who has been married to a non-state subject, approached the office of Governor Office after Jammu and Kashmir Service Selection Board (JKSSB) refused to recommend her name to the education department for being allowed to join as Teacher.
According to her application, she had got selected as teacher and when she approached SSRB for her recommendation letter, SSRB refused saying that the same cannot be issued since she had married a non-state subject and her state subject certificate was not valid anymore. Peeved at this, the lady approached the office of Governor, pleading him to intervene for getting her issue resolved.
Hon’ble Governor immediately wrote to the state government advising the issue be resolved immediately in the light of the judgment in the case of Dr. Sushila Swahney wherein High Court had said that a woman does not lose her state subject on marrying a non-state subject. But the judgment had remained silent on issue of children of female state subject married to a non-state subject.
The committee has been constituted to examine the case of lady in details besides laying down clear cut guidelines and rules for woman who get married outside the state to non-state subjects. It is believed that the committee would deliberate on the issue of status of the women who marry non-state subjects and then either get widowed or divorced. The committee would also look into the status of the children of these widows and divorcees.
The questions are
1. The guidelines for issuance of Permanent Resident Certificates (PRCs) are clear. They are the same for issuance of PRCs for both males and females. Then why different interpretation for the issuance of females? Are there any separate guidelines for issuance of PRC for Males?
2. The endorsement “Valid Till Marriage” was held ILLEGAL, WRONG and not done in accordance in existence with ANY LAW IN EXISTENCE at the time the JUDGMENT was delivered. So when judgement is clear why so confusion till now?
3. When children of a permanent resident are entitled to get PRC on the basis of PRC parent then why so categorisation of Male PRC parent or female PRC parent. Obviously as permanent resident both male and female enjoy same rights. So the spouse of permanent resident are also entitled to get same rights irrespective of male or female.
The law framed by Maharaja Hari Singh 90 years back in 1927 was clear about State Subject and was Gender neutral and subsequent law of 1932 bestows rights on next two Generations also. Even the PRC act of 1954 talks about permanent resident not male PRC or female PRC then why so unnecessary confusion is being created to discriminate the women of their legitimate rights. This should end to restore all rights available to women under Constitution of India and PRC act as permanent resident.
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