Interpretation of Article 35-A

29 May 2018 11:40:15

 


 
Sant Sharma
 
The interpretation of Article 35-A is something problematic. The Jammu and Kashmir High Court has already given its interpretation.
 
 
It had said on October 7, 2002, that there is nothing in it to allow its interpretation in a manner that can smack of the vice of gender discrimination. The reference is to a three-judge Bench giving its verdict in Dr Susheela Sawhney versus State of J&K and others case.
 
 
In the elaborate judgement, the judges had first discussed the original State Subject definition given during the reign of Maharaja Hari Singh on April 20, 1927. The court had also discussed the subsequent notification issued by the Maharaja on June 27, 1932. This notification had dealt with the issue of emigrants (emigrant State Subjects who had settled outside the state of J&K, in foreign lands).
 
 
Incidentally, all territories beyond those ruled by Maharaja Hari Singh were then ''foreign lands''. The State Subjects of J&K were then not Indian citizens.
 
 
The court had studied the two notifications on State Subject minutely. It then declared that there was nothing in these notifications that was gender discriminatory. No intention to treat Male State Subjects and Female State Subjects differently was discernible in these notes, the court had said.
 
 
There was only one definition of State Subject and it applied both to Male State Subjects and Female State Subjects. Since same definition applied to all State Subjects, irrespective of their genders, the rights of all State Subjects were also equal.
 
 
The court said clearly that Article 35-A cannot be interpreted in a manner as to treat Male Permanent Residents and Female Permanent Residents differently. The term Permanent Residents has replaced the words State Subjects in common parlance now.
 
 
The court said that in view of the interpretation it has given to the notifications of April 20, 1927, and June 24, 1932, no gender discrimination exists. As such, both the Male Permanent Residents and Female Permanent Residents have to be treated on par.
 
 
This means the rights of Permanent Residents of all genders are the same. Further, talking specifically about Article 35-A, the court said that it cannot be interpreted in such a manner that it can promote inter se different treatments for Male Permanent Residents and Female Permanent Residents. It said that Article 35-A is meant to draw a distinction between Permanent Residents and Non Permanent Residents.
 
 
It is not a provision which distinguished between Male Permanent Residents and Female Permanent Residents. For doing so will amount to gender discrimination which the Constitution of India does not allow, the court had declared.
It is, however, being interpreted wrongly in such a manner that the rights of Male Permanent Residents and Female Permanent Residents are different. So far, arguments have been about abrogating it.
 
 
Let the Supreme Court decide whether a clause which is GENDER BIASED be allowed to stay in the Constitution? Can a gender biased law be a law? Or is it an illegality? Let the Supreme Court decide whether an article can be interpreted in a manner that it promotes gender bias?
Can any provision or law be interpreted in such a manner as to treat females as lesser beings than their male counterparts? 
 
 
There is only one definition of Permanent Residents. It applies both to Male Permanent Residents and Female Permanent Residents.
 
 
Separate definitions for defining Male Permanent Residents and Female Permanent Residents do not exist.
 
The rights of Male PRs and Female PRs are the same. How can there then be  different effects of marriage on them with Non Permanent Residents?
 
The impact of marrying a Non PR on a Male PR and Female PR have to be the same.
 
 
Male PRs and Female PRs cannot be treated differently.
 
One fallacious interpretation of Article 35-A being resorted to by successive state governments should be brought before the Supreme Court. As a first step, in the legal battle seeking abrogation of Article 35-A, the Supreme Court should be requested to first abolish the illegal and ultra vires interpretation which promoted gender bias. It should be requested that any interpretation that is gender discriminatory had to be shot down. Removed.
 
 
The correct, gender neutral interpretation of Article 35-A is to be upheld.
 
 
 

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