‘In J&K Local Laws Are Discriminatory For Both Hindu And Muslim Women’

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Union Government has issued an ordinance on 19th September to safe guard the rights of the Muslim woman but will the Modi lead government also suggest the J&K Governor to issue an ordinance for restoring the fundamental rights of the Women Permanent Residents of J&K that are being violated even with in J&K through the constitutional and administrative leads taken by State government from the text of Section-6 of J&K Constitution and the pre 1956 orders of referred there in?.

The Delhi BJP lead NDA Government has in the recent years expressed some extra ordinary concern for the rights of woman in India, particularly the muslim woman.Out beating the resistance from some political opponents and also some Muslim clergy to THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON MARRIAGE) BILL, 2017, the Union Cabinet on 19th September 2018 cleared an ordinance  ( with some amendments as already approved by Cabinet on 29thAugust 2018 to the Bill already passed by Lok Sabha  that  could not be placed for debate in Rajay Sabha on 10th august 2018 )  and that was also signed by President Ram Nath Kovindon 19th September 2018 even worth  criminalizing  the prevalent practice / social custom practiced by muslim community in India that of  instant triple- talaq ( talaq e biddat) on the ground that it had been declared unconstitutional by the Supreme Courtof India in 2017 but was  still being used by some (as per statement of Mr. Ravi Shankar Prashad Union Minister there have been about  430 cases of triple talaq even since January 2017) .

This action by the BJP lead NDA Government had been described by some as BJP putting a question mark on the credentials of  its “secular” rivals  to explain whether they stoodfor gender justice.

What would be fate of the Presidential Ordinance when Parliament meets for winter session could be a question but BJP leadership has demonstrated strength of its intentions worth truthfully caring for the rights of woman although its opponents have seen unfair motives in the mind of BJP keeping in view the 2019 Lok Sabha elections.

The step taken by BJP has been appreciated in general but the way BJP has so far responded to the demands made for un doing the constitutional and administrative gender equality practiced in J&K by J&K Government wrt to the human / fundamental rights of the Women  Permanent Residents of J&K in J&K  does  support the allegations of ‘vote bank’ politics on BJP since had it not been so the BJP would have atleast talked of undoing the gender inequality in J&K with her alliance partner PDP atleast from 1st March 2015 to 19 June 2018 if not brought some administrative / legislative reforms..

8th March is observed as International Women’s Day all overincluding Indian state of Jammu and Kashmir. On the eve of International Women’s day 2015 I received in my mail box a citation from PMO signed by the Prime Minister of India that among other things said “today we renew our pledge to make woman an equal and integral part of our development journey ….   We must walk shoulder to shoulder to end all form of injustice or discrimination against the women…” .And the same day I also came across a paid but ‘issued in public interest’ advertisement from PHE and I&FC Department J&K Government with the then Hon’ble J&K Chief Minister, pledging < “A Real tribute on women’s Day: Governments commitment to provide Safe Drinking Water and proper Sanitation to every household – A step for empowering women to live life with dignity, safe and burden free”>.

Similarly an advertisement issued by J&K Health & Medical education and Social Welfare Departments asked “- Celebrate Women’s Achievements Call for Greater equality-”.

Although such advertisements are a regular feature every year at public cost but in 2015 it particularly attracted my attention since a PDP-BJP alliance government had been installed in J&K just a week before and it was hoped that the new ‘unique’ alliance that was introduced as “north pole south pole’ coming together by Mufti Mohd Sayeed would surely prove to be with some difference in handling atleast the local issues like  ‘’constitutional and administrative discrimination”  against the Woman Folk of J&K in J&K.

But so far  the “pledges” for  ending  all form of injustice or discrimination against the women, claiming  empowerment of women to live life with dignity and  Greater equality have  appeared  appear too dwarf, rather too hollow even after 3 years , when one takes a view of the  legal status of  even the woman folk  that falls in the category of the Permanent Resident of J&K in terms of Section-6 of J&K Constitution  in terms of her fundamental & human rights in J&K .

The woman folk that was in the category of ‘State Subject of Jammu & Kashmir’ during the times of Maharaja Hari Singh and has been the later designated as Permanent Resident of J&K under Section-6 of the constitution of Indian State of J&K is facing the most humiliating and agonizing discrimination as well as violation of fundamental rights that a citizen can have in a democratic non theocratic state.

In a way half of the population of Jammu & Kashmir, the Women ‘subjects’ of J&K, are denied (constitutionally ) even the right to freely chose a life partner since under the present prevailing procedural and legal practices a descendent female permanent resident of J&K in case marries  a non- permanent resident of J&K Indian citizen belonging to some other Indian state though she retains the permanent resident status worth right to immovable property / right to state services / right to be part of state legislature / right to aids provided by state but her husband  and their children will not have  the status of Permanent Resident of J&K/ descendent of permanent resident of J&K.

This way a State Subject girl of J&K is denied the right to chose her life partner from a state other than J&K (what to talk of from US or UK) , and in case she dares to do so her husband & descendent children would not qualify for services under the state government, acquiring owning property in their own name, entering government run professional  institutions  and even for entering J&K Legislature.

Such violation of fundamental / human rights of the Female subjects of J&K has been regularly brought to the notice of the ruling elite of J&K but the administrative as well as legislative corrections have not been made even after 60 years of having written the constitution of J&K although in the constitution of J&K the authors have provided specific provisions in Section-8 Section-9 of J&K Constitution in that regard for making legitimate corrections / changes where ever felt necessary.

 Not only that upto 2002 AD under the prevailing administrative practices the female permanent resident of J&K was even stripped off her all rights on local property / remaining in government service for her own self as well in case she marries a non- permanent resident of J&K and female unmarried daughters of J&K state subjects (males) were issue permanent resident certificates labelled as “valid only till marriage” and after marriage fresh PRC was issued where ever applicable.

“Whether the daughter of a permanent resident of State of Jammu & Kashmir losses her status as a permanent resident of the state of Jammu & Kashmir on her marriage with a person, who is not a permanent resident of the State of Jammu & Kashmir ? ” was the question before a  constitution  bench of the J&K High  Court in LPA (sw) No. 27/79 C/w LPA (ow) No. 24/79, State of Jammu & Kashmir Vs. Dr. Susheela Sawhney and Dr. Ravinder Maadan Vs. State of Jammu & Kashmir &anrs and it was on 7 October, 2002  that a  Bench :Justice V Jhanji, Justice T Doabia, Justice. M Jan had  held  <“.In view of the majority opinion, we hold that a daughter of a permanent resident marrying a non permanent resident will not lose the status of permanent resident of the state of Jammu and Kashmir”.

The question had arisen since the J&K state administration  was relying on its faulty  understanding  of the contents of Note-III appended with  notification No. 1L/84 dated 20th April 1927 of pre-1947 days that in a way formed part of the Constitution of J&K in terms of the contents of Section-6 defining the ‘permanent resident of J&K’ taking the status the wife or widow as acquired only from the husband as far as the status as’ state subject’ was concerned where as  Note-III  was  in fact to deal with the wife or widow who never had this status of “state subject of J&K’  but had acquired the same by entering into a matrimonial alliance with a person who is a state subject  where as the wife or widow who is originally a descendent daughter of a State Subject had to be viewed differently in terms of Note-II appended to notification No. 1L/84 dated 20th April 1927 which entitled the descendants of the persons who have clear status of state subject of class I or class II to become state subjects of the same class i.e status as inherited and as acquired.

In an illustration to Note II it has been said  that, for example if ‘A’ is declared a state subject of class II, his sons and grandsons will also acquire the status of the same Class (II) and not Class I and this  qualification had to be taken only as  illustrative because the descendant may be male descendant or a female descendantwhere as upto October  2002 AD judgement of J&K HC the State had been allowed to take the descendent only as “He” and was hence linking the state subject / permanent resident status only with the ‘male’  child of the  state subject / permanent resident of J&K.

Hence a son or a daughter born to a state subject of class I of class II shall ipso facto acquires the status of State Subject of Class I or of Class II provided he or she is a citizen of India Hence the court had maintained that a female state subject would not lose her rights as Permanent Resident of J&K / state subject of J&K in case she marries a non state subject.

But as regards the descendants of female permanent resident of J&K married to a non- permanent resident of J&K / non state subject of J&K even after 2002 AD still the state is carrying on with the understanding that for the purposes of the deciding the descendent of a ‘state subject’  the ‘deciding’ parent to be taken as parent state subject / permanent resident of J&K has to be only the ‘male’ parent and hence still even in 2018 the state subject rights are  denied to the children and husband of the  female descendent  state subject / female permanent  resident of J&K in case she marries a non permanent resident of J&K.

 

The state of Jammu Kashmir , where the ‘mainstream leadership’  is often heard boasting of having ‘constitutionally’ a special status in India, in a way holds such a unique distinction of  violating even the natural human rights of ‘woman’ .

But even the  Modi- Mufti alliance has not all these years given any indications  of having any intentions  to undo the injustice being done to ‘Half” of the population of J&K, the ‘women’

Surely there is no provision in the Notification 1-L/84 dated 20th April, 1927 AD or in the Constitution of Jammu and Kashmir that on marriage with a non permanent resident, the daughter of a permanent resident shall lose her status as a permanent resident of the state.

Similarly there is no direct reference any where in the constitution of J&K that the descendent has to be considered in reference to only the Male Parent.

Ofcourse legally / constitutionally  Notification 1-L/84 dated 20-04-1927 forms the part of the Section-6 of J&K Constitution  that lays down the particulars of Indian Citizens who are to be considered as ‘permanent Residents of Indian state of J&K” .

And the 4 notes appended to the said notification two hence form part of the constitution of J&K.{ Note-I: In matters of grant of the State scholarships, State Lands, for agricultural and house building purposes and recruitment to State Service, State Subject of Class-I should receive preference over other classes and those of Class-II, over Class-Ill, subject however, to the order dated 31th January 1927 of His Highness the Maharaja Bahadur regarding employment of hereditary State Sub jects in Government Service.Note-II: The descendants of the persons who have secured the Status of any Class of the State Subjects will be entitled to become the State Subjects of the same class. For example, if A is declared a State Subject of Class-II his sons and Grandsons will ipso facto acquire the status of the same Class (II) and not of Class-I.Note-Ill: The wife or a widow of the State Subject of any Class shall acquire the status of her husband as State Subject of the same Class as her Husband, so long as she resides in the State and does not leave the State for permanent residence outside the State.

Note-IV: For the purpose of the interpretation of the term ‘State Subject’ either which reference to any law for the time being in force or other wise, the definition given in this Notification as amended upto date shall be read as if such amended definition existed in this Notification as originally issued.}.

Where ever needed to define / identify the rights / privileges of the permanent residents of J&K the said notes have been used by the State to its convenience like Note-II and Note-III had been used upto 2002 AD and are being used even after Oct 2002 to the extent of violating the fundamental / human rights of the female population of J&K.

So far no any attempt has been made by the local political leadership of State or the Union of India at the national level to undo the injustice being done to Woman of J&K by the local state government by taking out ‘unfair’ explanations and leads from the pre 1947 notifications as mentioned in Section-6 of J&K Constitution where in the definition of the Permanent Resident of J&K and the broadly listed privileges have reference even when there are enough provisions available even in  Sections like 8 &9 of J&K Constitution for making corrections / removing the doubts and autocratic  concepts.

 The  woman folk that was  in the category of ‘State Subject of Jammu & Kashmir’ during  the times of Maharaja Hari Singh and has been the later designated as Permanent Resident of J&K under Section-6  of the constitution of Indian State of J&K is still after nearly 7 decades of independence facing the most humiliating and agonizing discrimination as well as violation of  fundamental rights that a citizen can have in a democratic non theocratic  state where under in a way half of the population of Jammu & Kashmir, the Women ‘subjects’ of J&K, are denied (constitutionally ) even the right to freely chose a life partner  under the present prevailing procedural and legal practices since in case a descendent female permanent resident of J&K  marries  a non- permanent resident of J&K Indian citizen  she retains the permanent resident status worth right to immovable property / right to state services / right to be part of state legislature / right to aids provided by state but her husband  and their children will not have  the status of Permanent Resident of J&K/ descendent of permanent resident of J&K.

There appears very less scope for any popular local government in near future applying corrections for undoing the gender discrimination in J&K.

J&K is under Governor rule since 19th June 2018Union Government  will the Modi lead government  in Delhi also suggest the J&K Governor to issue an ordinance for restoring the fundamental rights of the Women Permanent Residents of J&K  that are being violated  even with in J&K through the unfair constitutional and administrative leads taken  by State government from the  text of Section-6 of J&K Constitution and the pre 1956 orders of referred there in  the way Union Government has issued an ordinance on 19th September in reference to THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON MARRIAGE) BILL, 2017to safe guard the rights of the muslim woman criminalizing  the prevalent practice / social custom practiced by muslim community in India that of  instant triple- talaq ( talaq e biddat) on the ground that it had been declared unconstitutional by the Supreme Court of India in 2017 ?.

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