The Article 35-A no way promotes any gender injustice as some presume it does
Two important issues have been raised in the interlocutory petitions filed along the main one by RSS-backed NGO ‘We the Citizens’ challenging Article 35A on procedural grounds. In the one, local women marrying outside the state have sought permanency to their property rights and also the devolution of such rights on their children. In the other, West Pakistan refugees (WPRs) have sought an end to the alleged discrimination due to non-availability of State subject rights. Both these petitions have since been tagged with the main petition. These two issues have also been subject to most vile & malicious propaganda in India to inflame public opinion against Article 35A.Most reprehensible is the tacit admission of ‘Gender discrimination’ by Additional Solicitor General of India, appearing on behalf of J&K State Govt. in SC. The issues, therefore merit a detailed analysis & an informed debate.
As regards property rights of local women tying nuptial knots with non-state subject persons, our State Subject laws are, unfortunately silent on their post-marriage status. It may be recalled that the executive instructions required that state subject certificates (SSC) of all women in our State, carried an additional line “Valid till marriage” across the certificate. This implied that post marriage, their status had to be re-determined and SSC cancelled/denied, If found to have married a non-state subject. Though this practice of insertion of additional line may not have been expressly mandated by State subject laws but nevertheless was in tune with the intent & purpose of Such laws.
The first assault on such practice came from a top bureaucrat of the State- S.A.S Qadri whose daughter married a non local state subject- Mehmood-ul Rehman himself a top bureaucrat. He was able to obtain a favorable order from the then Revenue Minster declaring this inserted line “null & void” on the ground that the constitution of Jammu and Kashmir or any other law does not provide for deprivation of a permanent resident of the state of her status after marriage.
But while the practice of inserting this line continued, the matter went finally to High Court. In October 2002, the full bench of the High Court in a case titled State of Jammu and Kashmir vs Dr Sushila Sawhney, held that the daughter of a permanent resident of the State will not lose her permanent resident status upon marriage with a non-local person. The state Government went for appeal against this order in the Supreme Court. In 2004, the ruling PDP-Cong Government withdrew the appeal on the assurance that the Judgment will be neutralized through a law to be passed by the state Legislative Assembly. But this was only a hogwash as attempts to pass the necessary law were frustrated twice by the combined efforts of ruling and opposition parties alike in the State legislature at the behest of New-Delhi. While those episodes merit a separate discussion at some other time , suffice it to say here that in absence of any challenge, the judgment of the High Court has become a law on the subject -which means that a female permanent resident of the state tying nuptial bonds with a non state subject doesn’t lose her rights over immovable property or other state subject rights. As far as devolution of such rights on the children born out of such wedlock are concerned, the State Government has constituted an expert committee under the chairmanship of Commissioner Secretary, Revenue Department to advise it for forming a policy on the issue. In view of this position, the emotive cries of ‘gender discrimination’ to inflame Indian public opinion doesn’t hold any ground.
Let us now discuss the issue of West Pakistani refugees. Following partition of 1947 and mass migration of people from India to Pakistan & Vice versa, WPRs entered into our State from Pakistani Punjab areas like Dalowali, Nandpur, Rangpur Jattan, Salehpur etc. etc, and settled in Jammu . Once in Jammu, they mixed with RSS cadres & took an active & aggressive part in massacre of Jammu Muslims in 1947 and many occupied the properties of fleeing Muslims. Gandhi Ji referred to them as accomplice of Killers. According to a passing comment in Supreme Court order in Bachan Lal Kalgotra case(infra),their number is 7to 8% of the whole population of J&K, which takes them to around ten lac persons.
In November 2016, Mohan Bagwat, current chief of RSS stated in Jammu that Sheik Abdullah ‘permitted’ them to stay in Jammu. Nothing can be farther from truth than this diabolic statement. When these refugees entered Jammu, Abdullah had no say in such matters. These were handled by State administration headed by Mahajan & Batra. The fact is that even after Abdullah assumed the reins of State in 1948, he never promised them a permission for a perpetual stay or citizenship rights in the State. Had it been so, he would have granted them such rights during his tenure between 1948-53, when he was Prime Minster of J&K vested with unbridled powers. In fact his administration made an attempt in 1951 -52 to identify them for deportation to other parts of India but Nehru requested his friend Abdullah to postpone the issue to some other day for fear of incurring wrath of communal elements in Delhi. It is another matter that ‘other day’ never arrived. After he re-assumed power in 1975, lot of pressure was exerted on him by New-Delhi to grant them the citizenship rights but he resisted all moves in this regard. In-fact, in an interview published in almost all national dailies of 31st March 1981, he categorically refused to oblige New-Delhi on this issue which created an uproar in Indian Parliament. Speaking on the subject through a calling attention motion in Parliament, Karan Singh denounced Abdullah for his rigid attitude.
In 1982, the President of WPR association, Bachan Lal Kalgota filed a petition in Supreme Court of India, challenging their alleged discrimination due to non-availibilty of state subject rights. In 1987, the apex court dismissed the petition & held that in view of section 6 of J&K constitution read with article 35A of Indian constitution, the apex court is unable to provide any relief to them and it is for the State Govt. to consider their case & see what possible relief could be given to them. (1987 AIR 1169).
It is therefore, clear that the issues raised by these petitioners have already been decided by appropriate Courts. It, therefore, doesn’t serve the cause of justice to agitate them again & again in gross violation of principle of ‘res-judicata’. The Apex Court should summarily dismiss these petitions and order costs on petitioners for wasting its precious time by repeatedly raising a false discrimination bogey .
(The author is a practicing chartered Accountant)