Compromise on gender equality- A case of blatant abuse of section 35A

12 Jan 2018 11:45:47


Pankaj Gupta

Recently the Government of India has given a greater push to gender mainstreaming by promoting its flagship scheme viz. Beti Bachao, Beti Padhao. Gender equality is a matter of debate and discussion, in many educational institutions across the country. The patriarchal mindset of the society has been discussed in the colleges and its many other manifestations largely in the context of Hinduism. The unfortunate part is that the greater manifestation of it, in the form of Article 35A, has never been discussed in any educational institutions or any other forums. This controversial Article has not only been sowing the seeds of discrimination on the basis of gender but also blatantly promoting it. The J&K state has been licensed to violate the principle of gender equality, through presidential order of 1954, ever since the independence of India. Though the then central government had been masquerading that it was pro-women yet the reality was something else. Their appeasement policy has went to the extend of violating the basic right of the women, which was given by the constitution of India. Through this Article, license has been given to the J&K state to discriminate between their citizens on the basis of sex. This Article allows the state government to snatch the PRC from a woman, if she marries a non-resident of the state. But the same is not followed in case a man marries a non-resident of the state. On the contrary, his bride and children are also entitled for PRC.

Through a legal battle in J&K, the PRC rights have been restored for women, in 2002, yet their family members, including her husband, children and in-laws do not get the right to education, employment, inherit property or buy property in the state. Such a situation is extremely traumatic especially for those women, who after marrying an outsider of the state, got divorced or widowed, as their children will not have any future in the J&K state. Though women from both Muslim and Hindu communities are the victim of this draconian law yet the condition of former is more severe, as their major population is in Jammu, whose boarders touches the boarders of Punjab and Himachal Pradesh, and they often get into wedding knot from the people of these two states. As a result they lose their PRC more often. Though in 2004 government, then headed by Mufti Mohammed Sayeed, tried to overturn the J&K court verdict through the infamous Bill named “The Jammu and Kashmir Permanent Resident (Disqualification) Bill 2004” to bring back the status of women, in case she marries outsider, to its old position but it could not succeed due to the protests of BJP and Congress.

This Article has affected Sheikh Mohammed Abdullah’s son, Dr Farooq Abdullah, who himself married a British Christian girl and consequently she got the PRC. His son Omar married an outsider, Payal, a Hindu, she also got the PRC. But his daughter Sara Abdullah, on the other hand, married Sachin Pilot, former UPA minister and had her PRC relinquished automatically. Even the case of Sunanda Pushkar is very well known, who after getting widow of her first husband, who was from Kerela, could not able to get her PRC back. Though in the light of abovementioned judgement, she was given PRC yet her son was not given the benefit of PRC. Later, she married the Congress M.P. Shashi Tharoor, and shared her experience on NDTV, in an interview with Barkha Dutt.

The flouting of constitutional provisions for appeasement politics has costed the women heavily in J&K region. Many a great leaders have contributed a lot for the development of women but denying the equality is the blatant form of discrimination that has been meted out to them, through this Article. This Article has clearly violated the basic tenets of the constitution of India, which are the soul of the democracy. For example, Article 14 talks about “equality before law” and state that “the State shall not deny to any person equality before law or equal protection of the laws within the territory of India”; Article 15 talks about “prohibition of discrimination on grounds of religion, race, caste, sex or place of birth”; Article-16 discusses about “equality of opportunity in matters of public employment”. These Articles are meant for ensuring that atleast the government shall thwart any kind of discrimination yet the dynasty politics, whether in Delhi or in J&K, has made a mockery of the constitution. The makers of our constitution made every provision to ensure protection from all forms of discrimination but the breakers of constitution found the way with the overt and covert help of the then governmental machinery, which was resting in few hands. In my previous article I have mentioned, the backdoor entry of this Article, at the expense of democratic machinery, was treachery of worst kind. This constitutional provision has created havoc within the democratic fabric of the country.

It is important to mention here that this article never get a space in the college discussions. I remember during my PhD course work days I was asked, by one of the professors of my department, about Armed Forces Special Power Act (AFSPA) and when I said I don’t know much about it, I was told ‘Tum Jhola Chap Doctor Banoge’. It was surprising to me as I am doing PhD on the topic of CSR and asking questions on AFSPA was out of context. But more surprising for me today is that whenever J&K was discussed the discussions have largely taken place in the context of AFSPA. The discussion on this Article is not encouraged, if not completely banned, in many of the institutions of this country. Also, whatever information is passed on, it is very selective especially on issues like Article 35A. It seems that educational institution wanted to frame the mind of the students in one particular ideology.   

Recently, a close friend of mine directed a documentary movie on Article 35A. The screening of this movie pulled a good number of crowed, who were seemed surprised after knowing about this draconian law. Some of them even applauded his courage to make a documentary on this sensitive issue. Former Governer of J&K Shri Jagmohan Ji was the chief guest in this event, who also supported the abrogating this Article.

Though the earlier governments showed their inclination towards gender equality but this provision is a clear eye opener on their rhetoric of gender equality. It was surprising that the earlier self-proclaimed progressive governments remained mute spectators of this blatant constitutional violation. None of the political parties, media and civil society organisations dared to challenge this provision yet they have been calling the present environment threatening and make a huge cry that their right to freedom of speech has been violated. The recent judgement of the Supreme Court on triple talaq has brought relief to the Muslim women. In this country, the justice depends on the religion of a woman. In Hinduism, they can knock the door of court to claim their rights and against the evil practices in it but when it comes to other religion all the liberals and pseudo-secularists do not open their mouth. On the contrary some of the persons even argue that it is a religious matter and out of the purview of the apex court. Surprisingly it has been acknowledged by court of law of this country yet it was forced to make a decision on it. Hoping that the women of J&K state, who have been facing discrimination, will get the justice, by abrogation of Article 35A by the Apex Court, the way the Muslim women have got recently in the matter of instant triple talaq.


Posted on 1/17/2018 3:33:04 PM


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