28 Dec 2017 12:29:21



Being a woman is the flip side of life in Jammu & Kashmir. Atrocities against women in the state are not only in the form of ‘fatwas’, and diktats from the fundamentalist groups but even more appalling is the state sponsored discrimination against women, violating all mandates of the Constitution of India The feminist history of J&K is all about what the Constitution (of India & the state) proposes the state disposes. The Jammu & Kashmir Legislature was empowered to reject the mandate of the Indian Constitution, even something as vital as the Fundamental Rights guaranteed under it by virtue of its one provision that is Article 35A, added to the Constitution of India, as a special provision for Jammu & Kashmir, by a Presidential Order in 1954, without any discussion in the Parliament. The most vehement misuse of the unfettered powers to override the mandate of the Constitution (of India) given under Article 35A, to the state legislature surfaced in the form of various legislations by the consecutive state governments against women. The history of the state is witness to a long drawn struggle for gender equality by many like the Director of All Indian Radio, Leh, Tsering Angmo, former J&K Prime Minister Bakshi Ghulam Mohammad’s grand-daughter; and former Punjab Governor Surinder Nath’s daughter-in-law Rubina Malhotra; and Amarjeet Kaur of Baramulla.


A ray of hope came to the women of Jammu Kashmir in the year 2002 with the Judgment of Jammu & Kashmir High Court, in the case of State of Jammu and Kashmir Versus Dr. Sawhney and Others, reported in AIR 2003 JK 83. Prior to this judgment from the year 1956, the state government, much against the ethos of equality, by way of an executive fiat started incorporating an endorsement “Valid Till marriage” on the Permanent Resident Certificate (PRC) issued to the females descendents of the “Permanent Residents” [State Subjects] of the State. Finally the case of Dr. Sawhney decided against this unconstitutional endorsement i.e. “Valid Till Marriage” and it was held that the daughter of a permanent resident of the state of Jammu and Kashmir will not lose status as a permanent resident of the state of Jammu and Kashmir on her marriage with a person, who is not a permanent resident of the state of Jammu and Kashmir”. 


The Sawhney judgment made it clear that inter se inequality between the state subjects cannot be immune from attack or that it is covered by Article 35-A. The judgment clarified that “Section 10 of the State Constitution lays down that permanent resident have all the rights guaranteed to them under the constitution of India, and if there is some discrimination inter-se between the citizens of India who are permanent residents of the state, then in the event of a case being made out for discrimination, that provision can be struck down as violative of equality clause. The immunity which has been provided is limited. The immunity is that law is not to be declared as ultra vires because different treatment is being given to citizens of India who are not the permanent residents and the citizens of India who are permanent residents of the state”.


Despite the High Court holding illegal, any inter se inequality between the state subjects it was rather shocking to see how the govt. of a so called welfare state in the aftermath of the Sawhney’s judgment tried all possible ways to counter the decision of the Hon’ble High Court. First a Bill was introduced during the tenure of Mufti Mohammed Sayeed as the Chief Minister in the J& K Assembly seeking to invalidate the PRC status of a woman in Jammu Kashmir if she married a Non PRC. This discriminatory Bill was rejected by the State Legislative Council but nevertheless a subsequent Government Order, treats ‘Dr. Sawhney’s case’ as prospective in nature even though in the case of P.V. George & Ors. Vs State of Kerala & Ors. 2007 (3) SCC 557, it has been held by the Hon’ble Supreme Court that “The law declared by a court will have a retrospective effect if not otherwise stated to be so specifically.” Prospective application of it left majority of the women deprived of the benefits of the judgment. Moreover, the judgment itself did not bring under its purview, the husband or children of a woman living in the State with PRC status (as in the case of Kashmiri men), thus making it only liminal. The judgment still left many loopholes including the status of the children of unwed mothers or children of a rape victim, making it almost mandatory for such women to disclose the name of the father of the child which maybe a big blow to her dignity and also to her right to privacy.


The 2002 judgment therefore, did acknowledge the sufferings of the women in J&K yet it only proved to be a case of too late and too little as many questions remained unanswered. The key issues still unresolved even after the 2002 judgment are:


  • The effect of endorsement “Valid Till marriage” on the PRC which has been issued prior to the pronouncement of Susheela Sawhney judgment as the judgment is prospective in nature.
  • The status of children born out of a couple where husband is a Non State Subject and family was holding permanent status before marriage.
  • The right of a female married to a non permanent resident with respect to the disposal of property inherited by her through her parents.
  • Further issues regarding divorcee, Khanadamad (a son in law living with his in laws) and widow on which law is not very clear.


In recent times some committees were constituted to discuss these issues, but it appeared to be yet another half hearted attempt as no comments were invited from the real stake holders i.e. women or public at large. In fact the scope of these committees was restricted to ‘discuss’ the issues whereas the rights acquired by a woman as a permanent resident, her right to acquire property, right to hold property and right to transfer and dispose the property inherited under law of succession is absolute till she is an Indian citizen and does not call for any discussion. Therefore, these rights need to be protected and cannot be subjugated to any legislative or executive orders of any state govt. including Jammu & Kashmir.

The basic and fundamental rights of the female permanent residents under Article 14 and 15 of the Constitution of India cannot be infringed under any state legislation. Any interpretation which leads to denial of the right of a child to get the political status of her mother i.e. “permanent resident” would simply mean the infringement of his/her fundamental right guaranteed under Article 14 and 15 of the Constitution of India. Similarly, the issue as to who is the father of the child of a female ‘permanent resident’ is irrelevant and such child from the womb of a mother who is a “permanent resident” would be a “permanent resident”.  There cannot and should not be two different and discriminatory legislation for female permanent resident and her children and husband and male permanent resident and his children and spouse. It violates the mandate of the Constitution of both India and the state.


The Sawhney case therefore has paved the way but the women in Kashmir still have to travel a long distance to reach at par with their male counterparts. Continuing their fight for equality, these women have now approached the Supreme Court of India and while a ray of hope came in 2002, the light of the day is still awaited.




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