The changing rights of women in Jammu and Kashmir in the era of globalization

 

Jammu and Kashmir enjoys a special status within the federation of India. It is the only state that has its own constitution and can therefore enact its own laws. But following a 1927 notification the legal notion of “state subject” has been modified in a way that has produced extremely discriminatory effect by enforcing the ‘resident’ status or ‘domicile’ of a husband upon a woman. Whilst a man’s civil status is defined as the country of his permanent home, or acquired by birth, choice or operation of law; the 1927 modification means that a woman’s domicile under state law becomes that of her husband if she did not have any before marriage.

The notion of ‘domicile’ is particularly important in Jammu and Kashmir, because whilst all state residents are also citizens of India, only those defined as ‘state subjects’ are allowed specific state benefits such as state scholarships, recruitment to the public sector and the acquisition of state property. And yet it seems that in the matter of domicile, a married woman exists under a sort of legal disability. For as long as the marriage lasts, the wife is incapable of acquiring a separate domicile of her own, even if her husband has deserted her. Nothing short of annulling the marriage enables a married woman to acquire a separate domicile; even if her spouse dies, a widow will still retain his domicile until she changes it by her own act, for example by marrying again.

The notion of ‘state subject’ was created in an attempt to pacify the large numbers of unemployed following colonial rule from 1889 to 1921. In 1927 many western educated men still held key positions within state administration so Maharaja Hari Singh, the fourth Dogra ruler, attempted to soothe the ruffled feelings of his subjects by reasserting the rights of his subjects over outsiders.

State legislation seems to be designed to keep non-residents out, and therefore the transient nature of a woman’s domicile can be used against her. This can be seen in the Jammu and Kashmir case of Prakash versus Shahni. In the court’s view, Ms Shahni could not be treated as a ‘permanent resident’ of the State because although she moved into the state in 1947, she had not acquired any property at that time. Under the definition of permanent resident the constitution of Jammu and Kashmir includes those who having lawfully acquired immovable property in the state have been ordinarily resident therein for not less than ten years prior to 14 May 1954. Although Ms Shahni argued that she should be allowed to claim the residency status of her father, this was disallowed on the basis that she was married to an outsider and would therefore assume the status of her spouse as opposed to that of her father.

This view was shared by J Jan Muzaffar, who delivered the dissenting opinion in the Susheela Sawhney case. To support his argument he cited the decision of the Jammu and Kashmir high court in Prakash versus Shahni, wherein the court used the British Nationality and Status of Aliens Act 1914, which states that a married woman acquires the domicile of her husband if she did not have the same before marriage. But the court in Susheela Sawhney concluded that loss of residency status should not apply to a woman who is already a ‘permanent resident’ of the state before marriage.

In most countries the domicile of a married woman is ascertained in the same way as the domicile of an independent person. Moreover, the status of permanent resident is quite independent of domicile.

For instance, if a male moves out of the state and takes up a job elsewhere, he does not lose his status of permanent resident, even though he is not domiciled in the State. Why then must the Jammu and Kashmir state consider the position of a female permanent resident on a different basis?

Indeed there appears to be no legal flexibility when interpreting a woman’s domicile in Jammu and Kashmir. It is difficult to imagine such discriminatory practice against women in today’s age but such inequality is being sanctioned through the use of international private law which states ‘the domicile of the wife faithfully follows the domicile of her husband.’ This is a system of law which many now consider defunct, and yet state ‘protectors’ claim forms the basis of the 1927 notification. Its use in the state has been hailed in the courtrooms as ‘the most barbarous relic of the wife’s servitude’ and yet this law is still robust enough to allow the state to create inequality on the grounds of gender alone and despite the fact that such practice contravenes several international laws as well as the state constitution and the constitution of India.

There have been many other occasions when the state’s legal definition of domicile has been used to deny women permanent residency. The selection of a female doctor at the Jammu government medical college was quashed by a high court judge on the grounds that she was married to a non-state subject. In another legal battle a petitioner challenged the state law which issues Kashmiri women with permanent residency certificates valid only ‘until marriage.’ She asserted that the clause violated her fundamental rights guaranteed under the constitution of India and was discriminatory on the basis of sex. Then there was the case of a Kashmiri woman’s admission to a postgraduate course in a government medical college. This was made conditional on the production of a ‘permanent resident certificate’ by a stipulated date, after her marriage to a non-state resident. Comprehending that she would not be issued with the certificate, she filed a writ petition to quash the demand. This was on the grounds that she continued to be a permanent resident of Jammu and Kashmir even though she had married a non-state subject.

Because all the above cases and others were challenged, the Jammu and Kashmir high court was called upon to examine the issue of a woman’s residency and therefore also her right to hold, inherit and acquire immovable property in the state following marriage to a non-resident. In a landmark decision the high court found in favour of the women.

But women’s rights took a significant backward step shortly after when this decision was undermined by the Jammu and Kashmir Permanent Residents (Disqualification) Bill 2004, passed by the state legislative assembly. The bill diminishes the rights of Jammu and Kashmir women even more by depriving daughters of ‘permanent [state] residents’ such status if they marry non-state residents – the bill basically means that female state residents also lose their status upon marriage to a non-resident.

The swift and unchallenged passing of the Disqualification bill provoked strong criticism from a number of women’s organisations which accused the government of adopting double standards against women. The bill was passed in just ten minutes by the state legislature on 5 March 2004 and now awaits only the state governor’s assent before becoming law. It certainly seems improbable that in such a short space of time the state legislature would have had time to consider all the implications of withdrawing state-subject rights from women, as envisaged in the bill. The chief minister of the state was also criticised by his adversaries for having succumbed to pressure from hardliners. It remains to be seen whether the governor will also cave in to such pressure.

But supporters of the Disqualification Bill passionately plead that such a legislative measure is necessary to prevent erosion of the special status that Jammu and Kashmir holds, and which is guaranteed to them by article 370 of the constitution of India. They add that the practice of depriving a female of her status upon marriage to a non-resident is now a long-held practice, observed for more than seventy seven years, and that on these grounds should now be accepted practice. Yet it is difficult to accept such the rightness of a practice so patently contrary to the principles of natural justice, and which is considered so wrong by those affected by it, merely because of its longevity.

Should the legislative power the state holds to modify the special rights or privileges of permanent residents be absolute or unbridled? No such power can be unlimited in a civilized society, and yet supporters of the bill argue that the state has the right to introduce a bill defining or altering the definition of persons treated as ‘permanent residents’ of the state, as well as conferring upon or changing special rights or privileges to such residents. Supporters further their claim to legitimacy by pointing out that the Indian constitution also provides immunity from constitutional challenge for laws concerning the rights of permanent residents. It states that a law conferring special rights and privileges on state residents shall not be held void merely because it takes away the rights conferred on Indian citizens who are not ‘permanent residents’ of the state. This provision, however, cannot be taken to mean that the state legislature is allowed to discriminate between existing permanent residents. Moreover, those who take shelter under international law cannot ignore the Convention on the Nationality of Married Women prohibiting the automatic change of nationality of the wife upon marriage.

In the matter of inheritance, the personal laws have been allowed to have their full sway. They do not deprive a daughter of inheriting the property of her parents as a legal heir, as long as the devolution of property does not depend upon the status of a person. Instead the rule of inheritance is Islamic law in cases where the parties are Muslims and Hindu law in cases where the parties are Hindus. The only restrictions applied are again those linked to residency: any state property inherited cannot be sold to anyone other than a permanent resident of the state.

It seems to be a legal paradox that despite a state constitutional mandate banning sexual discrimination; inequality can sometimes be practiced and perpetuated through state laws and executive orders. Indeed if Jammu and Kashmir women are to have any rights to a fairer and equal system then old law must give way to new law.

The years of violence which have surrounded the troubled state of Jammu and Kashmir cannot be an incentive to protect territorial rights at the cost of equality, nor should a law designed to benefit state citizens be used to discriminate against them. International covenants, such as the 1966 International Covenant on Civil and Political Rights and the 1979 Convention on the Elimination of All Forms of Discrimination Against Women, to which India is a signatory, are accepted all over the world and now need to be applied to the female residents of Jammu and Kashmir.