370, An Oppression Against Fundamental Rights of J&K Women

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The recent abrogation of ARTICLE 370 has certainly caught the attention of the world, it has been a hot topic of debate since it has knocked the doors of UN and the UN has made its stand clear by stating that this abrogation of ARTICLE 370 is an internal matter of India hammering Pakistan’s false claims. While this Article of our Constitution was denoted to be a special provision granted to the state of Jammu & Kashmir which did not serve anything special to the people of that state, they were not entitled to Fundamental Rights protected under Article 14:Right to Equality, Article 15: Prohibition of discrimination on basis of religion, caste, race or place of birth, Article 16:equality of opportunity in matters of public employment and reservation, the Rights under Article 19 including the Freedom of speech and expression, Article 21:Right to life and Liberty, Article 25: freedom to practice religion, protection of interests of minorities under Article 29 & 30, (there in Jammu and Kashmir minorities refer to Hindu’s). While we have been enjoying these Fundamental Rights or at some instances have overused these Fundamental Rights, where we have put our Rights before Duties and not Duties before Rights there were people in Jammu&Kashmir, Ladakh who were fighting for their rights, who wanted to live like any other Indian. Ladakh has its own story of struggle, for decades it had fought for its identity, their voice was never heard, they were just mute spectators while Kashmir took most of the attention, all this happened because of one man, Former Prime Minister Jawaharlal Nehru, he forced in Article 370 despite opposition from his own cabinet ministers, Dr. B.R. Ambedkar, Shyama Prasad Mhukerjee and other leaders.

Dr. B.R Ambedkar had refused to draft Article 370 of Indian Constitution by saying:“You wish India should protect your border, she should built roads in your areas, she should supply you food, grains and Kashmir should get equal status as India. But government of India should have only limited powers and Indian people should have no right in Kashmir. To give consent in your proposal, would be treacherous thing against the interest of India and I, as a Law Minister of India, will never do.”

Pursuant to the provisions Article 370(1)(d) the President of India by an order not by legislation notified the provisions of Article 35A of the Constitution which excludes Part III of the constitution of India. The non- state subjects who are citizens of India, who live in Jammu and Kashmir by virtue of Article 35A, are denied of Fundamental rights permitted by the Constitution of India. This discriminated between citizens of India and state subjects which Article 35A confers. It violated the basic structure of the constitution.

The Nehruvian vision of separate status had given raise to self-rule and “AZADI”. The desire of proponents of these ideas had weakened the constitutional and political relationship between Jammu & Kashmir and with the whole country. This special status had paved way for separatism and not towards integration. While the whole country was chasing for the vision of development, employment, technologies, experiments, foreign investments etc., there were Kashmiris still fighting for their safety, their basic rights, schools would function once in a blue moon day, all they could get to witness was terrorism, be hostages to terrorists, blood bath…

The state laws in Jammu & Kashmir were consistently interpreted for over five decades to mean that a daughter in J&K would lose her status as a permanent resident of the state and also her rights and privileges if she married outside the state. This law was made on an erroneous belief that a wife must follow the domicile of her husband. A large number of women in J&K questioned the constitutional validity of this provision. A Full Bench of the High Court of Jammu & Kashmir by a judgement dated 7 th October 2002 re-interpreted the law and by majority judgement held a daughter marrying outside the state of J&K would not lose her status as a permanent resident. The National Conference Government which was in power in the state then was represented in this case by Advocate General Mr. Goni who vehemently opposed the plea of the daughters.

The judgement records:
Ld. Advocate General, Mr. Goni contended that a female descendant of a permanent resident of the state on marriage to a non-permanent resident of the state would lose the status of a permanent resident of state and would not be permanent resident of the state as defined under section 6 of the state Constitution. He submitted that by marrying a non permanent resident, a female descendant of a permanent resident of the state will not only loose the property which she may have acquired in the state but she would also lose all special rights and privileges like employment in the state government, right to scholarship or any other such privileges as the government may provide. He further submitted that the status of the wife or the widow depends on the status of the husband and in case she ceases to reside in the state and takes permanent residence outside the state she would lose the status acquired by marriage with a permanent resident of the state.”

“Dissatisfied” with the judgment, the National Conference government filed an SLP (Special Leave Petition, it provides the aggrieved party special permission to be heard in Apex Court in appeal against any judgment or order of any Court/tribunal in the territory of India) in Supreme Court. In
2003 the PDP Government in alliance with Congress Party was formed in state, they withdrew the SLP and introduced “The Jammu & Kashmir Resident (Disqualification) Bill,2004”, which attempted to statutorily nullify the progressive majority view taken by the High Court
. The Bill was supported by the PDP and National Conference. This Bill sought to withdraw the status of a permanent resident from a daughter who married outside the state and the Bill was passed by the Legislative Assembly and was taken to the Legislative Council. Eventually the Bill ran into some trouble with the Chairman of the Legislative Council adjourning the house without voting and referring it back to the Legislative Assembly where it got stuck again. In 2010, a PDP member again introduced this Bill as a Private member Bill in the Legislative Council. The leaders of National Conference have made statements stating that they are committed to bring this Bill. Special status and Kashmiri identity had pitted against Women’s Rights.

We must all accept that such discriminatory provisions which in addition compromise on the right to live with dignity have no place in Indian law. Article 370 and 35A have served to be oppressive against citizens of India. It was a historical blunder, whatever might be the intentions India has suffered, sacrificed, has incurred great loss due to insertion of these two Articles. Not to forget the Kashmiri Pandits who suffered at the hands of Islamic insurgents in the 1990’s, the wrong is righted lets all hope and pray good for our brothers and sisters of Jammu&Kashmir, Ladakh.

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