Personal becomes political in J&K

Myth number one: The law was promulgated by the late Maharaja Hari Singh in 1927 to protect the state subjects. Why are objections being raised to it after 77 years?

Reality: The state subject law of 1927 did not provide for disqualification once this certification was issued. The question of discrimination between men and women for disqualification on marrying outsiders did not arise. The status of Ghulam Kabra as a state subject and her right to inherit the property of her father was challenged in the state high court as early as in 1939, on the ground that she had married a non-state subject. The high court rejected the petition as there was no provision in the law to cancel a state subject certificate once granted. The Permanent Citizenship Act of 1957, under which the subject is dealt with until today, too, does not provide for disqualification or gender discrimination. So why is there a need for such a law for the first time in 2004?

Myth number two: If the bill is not passed, it will dilute Article 370 of the Indian Constitution. The PDP leaders assert that any dilution of the article would undermine Kashmir’s relations with India. The BJP and the RSS leaders, in contrast, maintain that as the article is being used to protect gender discrimination, there is all the more reason to scrap it.

Reality: The constitution of the state was framed under Article 370. Its section 6 defines the permanent resident status of its citizens. It does not provide for withdrawing this status from women if they married non-permanent residents. Again, under Article 370, the state constitution has accepted the fundamental rights of the Indian Constitution. Any law that violates Article 15 which guarantees against gender discrimination is ultra vires. As long as fundamental rights are applicable to the state, it makes no difference to the validity of the proposed bill whether the state is like any other state of India or is autonomous under Article 370.

Myth number three: The state high court rejected the order for disqualification of permanent resident status of women for marrying outsiders on the ground that there was no legislative sanction for the order. The proposed bill was intended to rectify this requirement.

Reality: The high court rejected the executive order under which the state government had started disqualifying women who married outsiders on the following grounds also: That the discrimination inter se between permanent residents on any ground (in this case gender) prohibited by fundamental rights is violative of the equality clause. A female state subject has to be treated at a par with a male state subject.

Myth number four: The bill is another proof of discrimination against Jammu and is in the interests of the Kashmir region.

Reality: Women of Kashmir would be worst sufferers if the bill is enacted. Mehbooba Mufti, president of the PDP, has admitted that there is a shortage of eligible bachelors in the Kashmir region. The number of eligible Muslim men has declined, first, because thousands of young men have been killed during the last 14 years of violence. Second, because of the turmoil in the valley, the better educated and more prosperous men have chosen to leave the state in search of higher education.

Myth number five: Women automatically acquire the status of citizenship of their marriage after marriage. Outside women who marry permanent residents of the state become state subjects and women permanent residents of the state who marry outsiders lose their status on account of the status of their husbands.

Reality: To quote a British judge, this is the most barbaric relic of wife’s servitude. After the 1956 UN General Assembly passed a Convention on the Nationality of Married Women, which ensured that a woman’s nationality would not be affected by “either marriage or its dissolution or the change of nationality of her husband”. This is a principle that must be accepted by all.