Dr Ganesh Malhotra
On May 14, 1954, the President of India issued an order called the Constitution (Application to Jammu and Kashmir) Order 1954. Besides carrying out many modifications and changes, this presidential order ‘added’ to the Constitution of India, a new Article namely 35A. No amendment in Indian Constitution can be done without Parliament without following procedures mentioned in Article 368. Article 35A was never presented before Parliament of India. Unlike other amendments, it appears in the Constitution as an appendix and is not listed in the list of amendments either.
Women Permanent Residents
Backed by Article 35-A Section 6 as adopted and strictly enforced by the State Government reads: (I) “Every person who is, or is deemed to be, a citizen of India under the provisions of the Constitution of India shall be a permanent resident of the State, if on the fourteenth day of May, 1954, (a) he was a state subject of class I or of class II, or (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 this date” and (II) “any person who, before the fourteenth day of May, 1954 was a State Subject of class I or of class II and who, having migrated after the first day of March, 1947, to the territory – now included in Pakistan, returns to state under a permit for resettlement in the State or for permanent return issued by or under the authority of any law made by the State Legislature shall on such return be a permanent resident of the State”.
As for Sections 8 and 9, the former gives the State Legislature the right to define Permanent Residents and the latter empowers the State Legislature to alter the definition of Permanent Residents. Article 35-A provided protection to Permanent Resident law from Article 14 and Article 19 against non permanent residents. But beyond its ambit Permanent Resident Law discriminates among male and female permanent residents of J&K.
Present egalitarian era is to celebrate womanhood, their social, political, cultural, political, economic achievements and their significant contributions to society and importance on gender equality. People across the world come together to recognise women not just well-known personalities, but also each woman who plays a pivotal part in the shaping of their lives. Constitution of India has many provisions to provide equality to women.
Preamble of J&K constitution provides for equality.
Section 19 of J&K Constitution provides for equal opportunities for both men and women.
Article 14 of Constitution of India states as under: “The State shall not deny to any person equality before the law and equal protection of laws within the territory of India.”
Articles 15 and 16 in the Constitution of India prohibit discrimination on the grounds of sex. Article 21 provides right to life. But they are insignificant before PRC law of J&K.
Prior 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 14 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.
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. 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 was 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. But no rules framed till date. Certain points need to be clarified particularly regarding the female permanent Residents married to male non-Permanent Residents of the State of J&K. The denial of rights to the off springs of female permanent residents married to non-permanent residents is violative of Article 14 of the Constitution of India as it is purely on the basis of sex that the constitutional right is denied to a citizen. The situation in certain cases is more grave where female Permanent Resident of the State of J&K who has married to a Non-Permanent Resident of the State of J&K has to come back to permanently reside in the State of J&K for the reasons of:
(i) Divorce;
(ii) Widowhood;
(iii) Permanent settlement for any other reason;
In any of such situations though the female continues to hold the status of Permanent Resident but the same does not go to her off-springs and leading to injustice. On other hand many prominent people like Sheikh Abdullah, Farooq Abdullah, Omar Abdullah and Tasadduq Mufti are married to Non permanent residents. So under this analogy they should also lose their permanent resident status. But it’s not so.
The Constitution of India does not recognize discrimination on the basis of sex and as in this case, the only reason for discrimination is based upon sex of the parent of the beneficiary, the same may not hold good in the eyes of law and is legally not sustainable.
Non-bestowing upon of the right and status of permanent residents of the State of J&K on the off-springs of female permanent residents of the State of J&K married to Non-permanent residents will create grave situation in succession to the property of Permanent resident married Non Permanent resident. Thus the fundamental rights of such persons guaranteed under the Constitution of India as also under the Constitution of the State of Jammu and Kashmir get sufficiently defeated due to misuse and wrong working of Article 35-A, thereby defeating India’s commitment towards human rights to be provided to its citizens.
(The author is J&K based Political and Strategic Analyst)
feedbackexcelsior@gmail.com
Follow our WhatsApp channel