Intro : Under the Constitution of India no discrimination is allowed on the basis of gender. It is deemed unconstitutional, and set aside.
June 27, is of great significance in the state of Jammu & Kashmir. Particularly from the point of view of spreading awareness in the Jammu region, to begin with, about the State Subject laws, and their correct interpretation, different from what is propagated by the Kashmir-centric politicians.
On this day Maharaja Hari Singh, who had succeeded Maharaja Pratap Singh, issued a note elaborating on the definition of State Subject, in 1932. Before this note or elaboration, Maharaja Pratap Singh had issued the first note ever on definition of State Subject on April 20, 1927.
After Article 35, the following new Article shall be added, namely 35A: Saving of laws with respect to permanent residents and their rights.
We know little about this and allow the so-called experts, mainly lawyers, judges and often politicians to interpret them for us. We do not even read these documents, barely of two pages, ourselves. In short, we go by what others tell us and trust & follow them blindly. This needs to be changed and we should read and understand these documents for ourselves, without any prejudices, and preconceived notions. Only then we will be able to develop a better understanding, or comprehension, about these laws.
Reading a court judgement of J&K High Court, on the subject seems to be way beyond us. That should also change. The court order was passed in famous Dr Susheela Sahney versus State of J&K and others case. Some of the women involved in the case and challenging government action against them hailed from the Kashmir Valley.
The most famous among the petitioners from the Valley was Rubina Nasrullah, who is married to Ranjit Malhotra, son of once Director General of J&K Police, Surender Malhotra. After working as DGP of J&K, Malhotra also remained the Governor of Punjab till he died in an air crash. On the other hand, Rubina is the daughter of Mir Nasrullah, once the Chief Secretary of the State. It is also worth mentioning here that Nasrullah was the son-in-law of GM Sadiq. Rubina was one of three daughters of Nasrullah, who had no male heir. Another petitioner from Kashmir was ShabnamTaj, one of three daughters of Taj Mohiuddin, a Congress leader and minister of the State Government, from November 2002 to November 2014.
Both had challenged that since they were born State Subjects, and had not acquired this status, this status of being a Permanent Resident was itself permanent. Rubina and Shabnam are both doctors and wanted to pursue higher education in the state, in the medical colleges owned by the state government. They were denied admissions on the ground that they no longer enjoyed the privileges extended to a Permanent Resident of Jammu & Kashmir under 35-A.
The judgement in the Susheela Sahney case was passed by a three-judge Bench headed by then Acting Chief Justice Justice Vijay Kumar Jhanji. The question before the Bench was whether any woman, a Permanent Resident, lost her status if she got married outside the State to someone who did not enjoy this status of being a Permanent Resident. If she were to lose this status of being a Permanent Resident, consequently were to lose all the privileges guaranteed under Article 35-A, meant exclusively for Permanent Residents of the state.
It is interesting that Article 35-A is not a part of the Constitution of J&K, but the Constitution of India. The latter expressly bars any discrimination against any citizen of India on the basis of gender. Another amusing, rather baffling, fact regarding Article 35-A is that it has been added to the Constitution of India under Article 370. Is Article 370 such a powerful and omnibus thing that it allows, rather empowers, the Central Government to make amendments in the Indian Constitution? Or is it something that is meant only to change things passed under the due constitutional process, and not carry out an amendment, to make it applicable specific to J&K? The court judgement went against the State Government and the government then went to the Supreme Court with a Special Leave Petition (SLP). The court ruled that no woman of the State would lose her status of being a Permanent Resident on marrying outside the State to a non-Permanent Resident and that she would remain a State Subject even on marrying someone who is a non-Permanent Resident.
Of course, she could renounce her Permanent Resident status voluntarily, if she ever chose to, but she could retain it if she wanted to. The choice was entirely hers. The existing law did not work against her as there existed no such law. The law on the subject was not gender-biased, working against one sex, females, in any such manner. The law on the subject was gender-neutral entirely and not barring the women, or disabling them, in any manner whatsoever.
This has very grave consequences for the children of a female Permanent Resident marrying a non-Permanent Resident. The interpretation and twist being given by the state officials is that though the woman will continues to be Permanent Resident after her marriage with a non-Permanent Resident, her children would not become Permanent Residents. Of course, the children of a male Permanent Resident automatically, by operation of the relevant law, become Permanent Residents. What the children of a male Permanent Resident will get, the children of a female Permanent Resident will not. The (mis?) interpretation by the officials is that in the latter case, the law expressly bars them.
Why to make such gender discrimination, and disadvantage, for female Permanent Residents of J&K. She has to suffer this disadvantage, per force, silently? Because of conventional (wrong) interpretation of the law, any law which promotes gender discrimination is unconstitutional and will have to be set aside. How can a law here be allowed (if any such law exists) to operate and take precedence over the Constitution, the supreme law of the land? It is straight a clash between two provisions in the Constitution of India. Which one prevails, or rather should prevail, the other one obviously to be struck down as unconstitutional? The interpretation by officials of J&K is that a female Permanent Resident cannot confer her status on her spouse. Only male Permanent Residents can do that.
This amounts to conferring a right on males (only) and denying the same to females of J&K. The SLP (C) 3679-3688 of 2003 was filed in the Supreme Court in the month of January 2003. The advocates who appeared on behalf of the state government of J&K on 12/09/2003 were Advocate General Altaf H Nayak and Anis Suhrawardy. It is not clear whether there was anyone who appeared on behalf of the respondents. The case in the Supreme Court was heard by Justice M B Shah and Justice A R Lakshmanan. The Bench passed what looks like a very brief order: Upon hearing counsel, the court made the following order: Learned Advocate General seeks the permission to withdraw this petition. Permission granted. The petition stands disposed of as withdrawn.
The SLP was drafted in the chamber of Anis Suharwardy and the file cover says that it is an SLP against the final judgement and order dated October 7, 2002 passed by the High Court of J&K in LPA 29 of 1979 (and other connected matters) with prayer for interim relief. On behalf of the State Government, it was Mushtaq Ahmed Wani of Pulwama, public law officer of the revenue department of J&K who signed the affidavit for filing the SLP. The order of the High Court was that there is no law passed by the Maharaja which made a distinction between the progeny of a State Subject. Both daughters, and sons, of a State Subject, were treated equally, and the daughters suffered no disadvantage on getting married to any outsider, a non permanent resident of the State.
As per the prevalent convention in the state of J&K, the children of the daughter of a state subject are not issued State Subjects if she marries an outsider. Also, her spouse is not issued a State Subject either. On the other hand, the children of the son of a State Subject, as also her spouse, are issued State Subjects even if he maries outside the state. That way, the male and female State Subjects are treated differently in the state.
Under the Constitution of India, the supreme law of the country, no discrimination is allowed on the basis of gender. It is deemed unconstitutional, and set aside. Why not so in this case? Why is J&K government allowed to treat sons, and daughters, differently?
Sant Kumar Sharma (The writer is Jammu based freelance Journalist)
(July 19, 2015 Page : 40-41)