"On December 1, Just about a week before the news of this petition came out in a very small section of the media, the BJP’s PM designate, Narendra Modi, speaking at a huge public rally in Jammu choose a striking example to illustrate precisely this grave gender bias in the J&K state law: The J&K Chief Minister Omar Abdullah’s very own sister, Sara, does not enjoy the same legal rights in J&K as Omar[3]. In doing so, Modi brought back onto the centre stage of political discourse yet another saga of Nehruvian blunder that has been exacting a heavy price in men and material from the Indian nation for the last six decades. A riled Omar immediately hit out at Modi in a series of Twitter posts, in one of which (see below) he virtually labelled Modi a liar.
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For all his indignant protestations, however, it is Omar who has placed himself on the wrong side of the truth. Sara is married to the Congress politician, Sachin Pilot[4], who is not a resident of Jammu and Kashmir. This mere fact of her marriage to a non-resident of J&K means that her children cannot inherit her property or buy property in J&K, nor get government jobs or seats in educational institutions in the state of J&K. Omar too married an outsider, Payal Nath (they separated recently after 17 years of marriage)[5]. However, his children suffer no such legal disadvantage, only because Omar is male"
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Such blatant discrimination against women is befitting for a place like say Saudi Arabia but not for India a 'socialist, secular' democracy. What is infuriating is , even though facts are there open and clear, yet the media in cahoot with self serving politicians like Omar Abdullah, chooses to lie through its teeth , calling Modi's statement as goof up and gaffe.
I do not think there was any retraction either even now from the worthless worthies of crooked media eminences.
What is truly amazing is, still we cannot get over it, is the unparalleled way Narendra Modi triumphed almost single handed over the forces arrayed against him from both with in the party and outside of it , the media,then ruling UPA and of course against likes of J&K CM, Omar Abdullah. We do not see any parallel for such victory in recent political history but have to go back further . On Vijayadasami day more than 5000 years back, Arjuna, single handed trounced all the forces of Kauravas arrayed against him.
Narendra Modi should not hesitate and make progress further, throwing the odious article 370 into dustbin and liberate Jammu and Kashmir from being an exclusive preserve of likes of Abdullahs, separatists and such, and make it truly an integral part of India.
Vandemataram
G V Chelvapilla
The Article 370 debate: Omar lied and the media connived.
Jammu and Kashmir legally discriminates against its women
Most of the mainstream media decided to act naïve on this issue and tried to pillory Modi instead, calling his statement a “gaffe” and “a goof up” or simply echoed Omar’s sentiment. [6] [7] [8]However, the recent petition filed in the J&K High Court on this very point thoroughly exposes Omar’s mendacity and the complicity of some sections of the media that.
How can this grotesque legal bias against women exist in one particular state of India when the Right to Equality is enshrined in the Constitution of India: Article 14 guarantees “equality before law”[9] and Article 15 explicitly prohibits “discrimination on grounds of religion, race, caste, sex or place of birth”[10]? The reason is Article 370 that was foisted onto the Indian Constitution mainly through the strong backing of Jawaharlal Nehru, who until their fallout in 1953, allowed himself to be strongly influenced by the views of the self-rule proponent, Sheikh Abdullah, the grandfather of the present Chief Minister Omar Abdullah. Sheikh Abdullah was one of the founding members of the Muslim Conference in 1932, which actively took up cudgels on behalf of the Muslim inhabitants of this otherwise multicultural and multi-religious state. The Muslim Conference was renamed as the National Conference in 1939.
Article 370 restricts the right of the Indian Parliament to make laws for the state of the Jammu and Kashmir (vide 370(1)(b)) and allows J&K to have its own constitution (vide 370(2)).[11] Laws made by the Parliament including any amendments to the Indian Constitution can be made applicable to J&K only through a presidential order vide 370(b)(ii) and 370(1)(d).[12] Over the years the presidential order route, named as Constitution (Application to Jammu and Kashmir) Order, has been employed to extend several articles of the Indian Constitution to J&K.However, a rather parochial concept called Permanent Resident remains deeply entrenched in the J&K Constitution, which is the root cause for the discrimination among citizens perpetrated by the state of J&K and is a significant hurdle in the way of the smooth integration of the state with the rest of the country.
Before Indian independence, when the present J&K was a princely state in the British Empire, the then Maharaja had defined the concept of State Subject via the State Subject Definition Notification in 1927[13] in order to preserve the rights of the state residents in the face of a demographic invasion from other parts of the British Empire. That made sense when the then Kashmir and Jammu was a princely state under the British Empire. However, after the state formally acceded to independent India in 1947[14] and when Article 3 of the J&K Constitution adopted in 1957 emphatically declares that “the State of Jammu and Kashmir is and shall be an integral part of the Union of India”[15], carrying on with this concept has led to disenfranchisement of many genuine residents and provided a tool for further mischief to separatists and Islamists who have been constantly attempting to change the demography of the state.[16]
Article 6 of the J&K Constitution defines the Permanent Residents of J&K and Articles 8 and 9 firmly vest in the State Legislature the right to define the Permanent Residents and confer on them any special rights and privileges. The Constitution (Application to J&K) Order, 1954 added the highly discriminatory section 35A to the Constitution of India that virtually gives a carte blanche to the State Legislature of J&K on the issue of permanent residents, even if the laws they make violate the fundamental rights enshrined in the Constitution of India for some citizens.[17] In a recent internet post, the BJP Leader and eminent lawyer Arun Jaitley questions whether “a provision like Article 35A, which exists only because of Article 370 have place in any civilized society” and adds that “on a bare reading it violates the basic structure of the Constitution”. [18]
For several decades, not just the children of a woman permanent resident of J&K marrying a non-resident, but even the woman herself used to lose her permanent resident rights in J&K. The Permanent Resident Certificate in the case of women used to be marked “Valid only till marriage”, her rights after marriage dependent on the residency status of the man she married. [19] Finally in 2003, the J&K High Court in the case of the State of Jammu and Kashmir versus Susheela Sawhney with a 2-1 majority gave a landmark judgment that said nothing in wording of permanent residency clause in Article 6 of the J&K Constitution implied that the J&K permanent residency status of a woman will be altered by her marriage as long as she remains a citizen of India. The court also noted that the State Legislature had the right under Article 8 of the J&K Constitution to pass a law amending the definition of a state resident, but since no such law limiting the permanent residency right of a woman had been passed in the J&K till then, the original definition in Article 6 still held.[20] This judgment in this case overturned the judgment of a division bench of the same court in 1965, which had ruled against a woman petitioner in a similar case.
The judgment of the court did not deter the politicians of J&K, include Omar Abdullah himself, to try to reintroduce the discrimination against the women permanent residents. Omar filed a Special Leave Petition in the Supreme Court against the judgment, but later withdrew it fearing an unfavourable ruling.[21] Since the J&K Constitution gives full powers to the State Legislature to decide who is a State Resident, the PDP government in 2004 led ironically by a woman, Mehbooba Mufti, passed the Permanent Resident (Disqualification) Bill in the Assembly with open support of the Omar’s National Conference, depriving the women of Jammu and Kashmir their permanent resident status if they married non-State subjects. However, the bill fell in the J&K Legislative Council after J&K Legislative Council Chairman Abdul Rashid Dar, a senior National Conference member, went against the official line of his party and adjourned the state legislative council sine die. [22] [23] [24] Dar was expelled from the party soon after. Even after this Omar Abdullah continued to strongly urge the PDP government to make all efforts to pass this highly discriminatory legislation, warning that the “non-passage of the Bill would erode the rich culture and heritage of the State and change its ethnic, linguistic, religious and demographic character.[25] Even as late as 2010, an attempt was again made to pass this bill[26]. Though this attempt failed, Article 35A of the Indian Constitution that owes its existence to Article 370 deprives the women of J&K of their fundamental right to equality and leaves them at the mercy of the members of the state assembly.
The gender discrimination, though grave, is just one of the numerous anomalies created by Article 370, which the framers of the Indian Constitution had certainly not envisaged as permanent, given that the title of the Article 370 is “Temporary provisions with respect to the State of Jammu and Kashmir”. Moreover, this article of the Constitution has only acted as a fence between J&K and the rest of India and severely restricted social and cultural interchange, leading to the isolation of the state and the development of an atmosphere in the state of brute-force homogeneity at a severe loss of its innate cultural and religious diversity. In this light, Narendra Modi’s call for a debate on Article 370 is an extremely positive step. The fact that Modi specially took out time from his hectic campaigning sessions in the states bound for assembly polls to go all the way to Jammu to address a rally indicates that issues of significant national interest are high on Modi’s agenda. One can only hope that all genuine well-wishers of Jammu and Kashmir and its people, irrespective of their political and ideological affiliations will actively engage on this issue and find concrete ways to move away from the politics and separatism, division and isolation that has plagued the polity of J&K since independence.
A permanent resident of Jammu and Kashmir who has been continuously living in the state with her husband (who is a non-resident, as per J&K law) and children has recently filed a petition in the J&K High Court challenging the provision of the J&K Constitution that denies her offspring the right to the Permanent Resident Certificate — and consequently the right to acquire immovable property and a government job in state of Jammu and Kashmir. She argues that her children should have all the rights of a State subject, including the right to inherit and own immovable property besides an opportunity to seek admission to a professional college and subsequently apply for a State government job.[1] [2]
On December 1, Just about a week before the news of this petition came out in a very small section of the media, the BJP’s PM designate, Narendra Modi, speaking at a huge public rally in Jammu choose a striking example to illustrate precisely this grave gender bias in the J&K state law: The J&K Chief Minister Omar Abdullah’s very own sister, Sara, does not enjoy the same legal rights in J&K as Omar[3]. In doing so, Modi brought back onto the centre stage of political discourse yet another saga of Nehruvian blunder that has been exacting a heavy price in men and material from the Indian nation for the last six decades. A riled Omar immediately hit out at Modi in a series of Twitter posts, in one of which (see below) he virtually labelled Modi a liar.
![]()
For all his indignant protestations, however, it is Omar who has placed himself on the wrong side of the truth. Sara is married to the Congress politician, Sachin Pilot[4], who is not a resident of Jammu and Kashmir. This mere fact of her marriage to a non-resident of J&K means that her children cannot inherit her property or buy property in J&K, nor get government jobs or seats in educational institutions in the state of J&K. Omar too married an outsider, Payal Nath (they separated recently after 17 years of marriage)[5]. However, his children suffer no such legal disadvantage, only because Omar is male.
Most of the mainstream media decided to act naïve on this issue and tried to pillory Modi instead, calling his statement a “gaffe” and “a goof up” or simply echoed Omar’s sentiment. [6] [7] [8]However, the recent petition filed in the J&K High Court on this very point thoroughly exposes Omar’s mendacity and the complicity of some sections of the media that.
How can this grotesque legal bias against women exist in one particular state of India when the Right to Equality is enshrined in the Constitution of India: Article 14 guarantees “equality before law”[9] and Article 15 explicitly prohibits “discrimination on grounds of religion, race, caste, sex or place of birth”[10]? The reason is Article 370 that was foisted onto the Indian Constitution mainly through the strong backing of Jawaharlal Nehru, who until their fallout in 1953, allowed himself to be strongly influenced by the views of the self-rule proponent, Sheikh Abdullah, the grandfather of the present Chief Minister Omar Abdullah. Sheikh Abdullah was one of the founding members of the Muslim Conference in 1932, which actively took up cudgels on behalf of the Muslim inhabitants of this otherwise multicultural and multi-religious state. The Muslim Conference was renamed as the National Conference in 1939.
Article 370 restricts the right of the Indian Parliament to make laws for the state of the Jammu and Kashmir (vide 370(1)(b)) and allows J&K to have its own constitution (vide 370(2)).[11] Laws made by the Parliament including any amendments to the Indian Constitution can be made applicable to J&K only through a presidential order vide 370(b)(ii) and 370(1)(d).[12] Over the years the presidential order route, named as Constitution (Application to Jammu and Kashmir) Order, has been employed to extend several articles of the Indian Constitution to J&K.However, a rather parochial concept called Permanent Resident remains deeply entrenched in the J&K Constitution, which is the root cause for the discrimination among citizens perpetrated by the state of J&K and is a significant hurdle in the way of the smooth integration of the state with the rest of the country.
Before Indian independence, when the present J&K was a princely state in the British Empire, the then Maharaja had defined the concept of State Subject via the State Subject Definition Notification in 1927[13] in order to preserve the rights of the state residents in the face of a demographic invasion from other parts of the British Empire. That made sense when the then Kashmir and Jammu was a princely state under the British Empire. However, after the state formally acceded to independent India in 1947[14] and when Article 3 of the J&K Constitution adopted in 1957 emphatically declares that “the State of Jammu and Kashmir is and shall be an integral part of the Union of India”[15], carrying on with this concept has led to disenfranchisement of many genuine residents and provided a tool for further mischief to separatists and Islamists who have been constantly attempting to change the demography of the state.[16]
Article 6 of the J&K Constitution defines the Permanent Residents of J&K and Articles 8 and 9 firmly vest in the State Legislature the right to define the Permanent Residents and confer on them any special rights and privileges. The Constitution (Application to J&K) Order, 1954 added the highly discriminatory section 35A to the Constitution of India that virtually gives a carte blanche to the State Legislature of J&K on the issue of permanent residents, even if the laws they make violate the fundamental rights enshrined in the Constitution of India for some citizens.[17] In a recent internet post, the BJP Leader and eminent lawyer Arun Jaitley questions whether “a provision like Article 35A, which exists only because of Article 370 have place in any civilized society” and adds that “on a bare reading it violates the basic structure of the Constitution”. [18]
For several decades, not just the children of a woman permanent resident of J&K marrying a non-resident, but even the woman herself used to lose her permanent resident rights in J&K. The Permanent Resident Certificate in the case of women used to be marked “Valid only till marriage”, her rights after marriage dependent on the residency status of the man she married. [19] Finally in 2003, the J&K High Court in the case of the State of Jammu and Kashmir versus Susheela Sawhney with a 2-1 majority gave a landmark judgment that said nothing in wording of permanent residency clause in Article 6 of the J&K Constitution implied that the J&K permanent residency status of a woman will be altered by her marriage as long as she remains a citizen of India. The court also noted that the State Legislature had the right under Article 8 of the J&K Constitution to pass a law amending the definition of a state resident, but since no such law limiting the permanent residency right of a woman had been passed in the J&K till then, the original definition in Article 6 still held.[20] This judgment in this case overturned the judgment of a division bench of the same court in 1965, which had ruled against a woman petitioner in a similar case.
The judgment of the court did not deter the politicians of J&K, include Omar Abdullah himself, to try to reintroduce the discrimination against the women permanent residents. Omar filed a Special Leave Petition in the Supreme Court against the judgment, but later withdrew it fearing an unfavourable ruling.[21] Since the J&K Constitution gives full powers to the State Legislature to decide who is a State Resident, the PDP government in 2004 led ironically by a woman, Mehbooba Mufti, passed the Permanent Resident (Disqualification) Bill in the Assembly with open support of the Omar’s National Conference, depriving the women of Jammu and Kashmir their permanent resident status if they married non-State subjects. However, the bill fell in the J&K Legislative Council after J&K Legislative Council Chairman Abdul Rashid Dar, a senior National Conference member, went against the official line of his party and adjourned the state legislative council sine die. [22] [23] [24] Dar was expelled from the party soon after. Even after this Omar Abdullah continued to strongly urge the PDP government to make all efforts to pass this highly discriminatory legislation, warning that the “non-passage of the Bill would erode the rich culture and heritage of the State and change its ethnic, linguistic, religious and demographic character.[25] Even as late as 2010, an attempt was again made to pass this bill[26]. Though this attempt failed, Article 35A of the Indian Constitution that owes its existence to Article 370 deprives the women of J&K of their fundamental right to equality and leaves them at the mercy of the members of the state assembly.
The gender discrimination, though grave, is just one of the numerous anomalies created by Article 370, which the framers of the Indian Constitution had certainly not envisaged as permanent, given that the title of the Article 370 is “Temporary provisions with respect to the State of Jammu and Kashmir”. Moreover, this article of the Constitution has only acted as a fence between J&K and the rest of India and severely restricted social and cultural interchange, leading to the isolation of the state and the development of an atmosphere in the state of brute-force homogeneity at a severe loss of its innate cultural and religious diversity. In this light, Narendra Modi’s call for a debate on Article 370 is an extremely positive step. The fact that Modi specially took out time from his hectic campaigning sessions in the states bound for assembly polls to go all the way to Jammu to address a rally indicates that issues of significant national interest are high on Modi’s agenda. One can only hope that all genuine well-wishers of Jammu and Kashmir and its people, irrespective of their political and ideological affiliations will actively engage on this issue and find concrete ways to move away from the politics and separatism, division and isolation that has plagued the polity of J&K since independence.
[1] http://www.thehindu.com/
[2] http://www.greaterjammu.
[3] http://www.youtube.com/
[4] http://www.indiatvnews.
[6] http://indiatoday.intoday.
[7] http://www.dnaindia.com/
[8] http://timesofindia.
[12] Ibid.
[16] Demographic Change in Kashmir by K.N.Pandita in Jammu, Kashmir, Ladakh: Ringside Views edited by Shyam Kaul.