Constitutional Lies and the Afterlives of Law in Kashmir

The tortuous thicket of laws, constitutional provisions, presidential orders, political history and legal mystifications surrounding Article 370 and Article 35A make it difficult to navigate through recent debates about its abrogation in an informed way. This series of three essays by Shrimoyee Nandini Ghosh, lawyer and legal researcher, aims to be a somewhat eclectic guidebook— at times proffering a no frills step-by-step road map, at others traversing some rather more unfrequented and adventurous legal diversions.
In the first two of these essays, Shrimoyee looked at:

  1. What is/was Article 370 and Article 35A?What just happened to them?
  2. What have the changes to the legal status of Kashmir meant in terms of Internationally recognised rights of the Kashmiri people?

In this third and final essay (written in the dark zone of occupied Kashmir), Shrimoyee deals with the claims of “equality and equal treatment of law” have been widely used by supporters of the August 5 Constitutional Amendments, citing Jammu and Kashmir’s differentiated jurisdiction as a constitutional anomaly and a cause of the legal mistreatment of women.

ARTICLE 370, WOMEN’S RIGHTS AND THE LIFE OF LAW IN KASHMIR

Claims of “equality and equal treatment of law” have been widely used by supporters of the August 5 Constitutional Amendments, citing Jammu and Kashmir’s differentiated jurisdiction as a constitutional anomaly, and a cause of a range of ills from “psychological isolation”, “terrorism”, “separatism”, to “under development” and the legal mistreatment of minorities and women. This essay looks at judicial precedents in Kashmir, to unpack claims about gender equality and its relationship to Article 370 and 35 A. While it is true that Article 370 carved out a sphere of legislative autonomy for Jammu and Kashmir, it is also true that this had been severely undermined by constitutional and judicial developments between 1954 and 2019 so that Kashmir was in fact less autonomous than other state’s rather than more, in crucial aspects such as Presidents rule and residuary powers of legislation. Not only was the jurisdiction of Indian parliament to enact laws for Kashmir extended to almost every subject in the Union List, even in those subjects where the state enacted laws, such as the criminal code, the laws were near replicas of the federal law in substantive terms. The jurisdiction of most important federal judicial, administrative and investigative bodies from the Supreme Court, to the Election Commission, the CAG, to the Central Bureau of Investigations extended to Kashmir. Many of the claims being made today, for instance that Jammu and Kashmir lacked a Right to Education, a Right to Information, Panchayati Raj laws, or a law on child marriages, or Triple Talaq are simply bald faced lies, since Jammu and Kashmir in fact had laws governing all these issues, almost all of them enacted earlier, and in some cases providing citizens more rights than those available under the federal law. The basis of legislative equality is in any case disingenuous as because of the erosion of Article 370, central laws could easily be, and hundreds were in fact extended to Jammu and Kashmir whenever politically expedient. Yet these claims have circulated, proliferated and taken on the aura of legal truisms that continue to be repeated as justifications even before the Supreme Court. In this essay we look in detail at one particularly pernicious constitutional legal claim relating to the equal rights of women that is being used to justify the dismantling of the India-Kashmir legal regime.

Indian citizenship and the Indian charter of Fundamental Rights (with modifications and exemptions) were extended to Jammu and Kashmir under the Presidential Order of 1954. Article 35 A, which is part of this order, provides that laws and provisions relating Permanent Residents of Jammu and Kashmir will not be subject to constitutional challenge on grounds that they violate the Fundamental Rights of “other citizens of India.” There are two strands to the claim that Article 35 A discriminates against women on the basis of their gender—first that it discriminates against women directly; and the second that it does so indirectly. Let us examine each in turn.

Argument 1. Article 35 A discriminated against women directly.

The claim in its simplest form is, that because of the existence of Article 35A women Permanent Residents of Jammu and Kashmir who marry men who are not Permanent Residents, lose their legal status as Permanent Residents and therefore their rights to state employment, scholarship, and acquisition and ownership of property. Hence the Article directly discriminates against Permanent Resident women as against Permanent Resident men in similar situations. This is a lie.

Jammu-Kashmiri or Ladakhi women Permanent residents either by birth or descent, whether married to other Permanent Residents or not, have the same rights as those enjoyed by men. Their marital status or gender has no bearing on their legal status as Permanent Residents and the rights that flow from it. The false claim, which has been repeated ad nauseum, including by high ranking state functionaries, is premised on a misreading of law, a deliberate disregard of judicial precedent, and a misrepresentation of the prevailing practice with regard to the issuance of Permanent Residence Certificates. It draws from a long history of communal and patriarchal discourse about Jammu and Kashmiri women’s “inequality” regarding property rights, which has little to do with the actual legal position, or gender justice. This false and dangerous dichotomy pitting apparent concern over “women’s constutional rights” against Jammu and Kashmiri constitutional autonomy goes back over fifteen years to the controversy over the Jammu and Kashmir Permanent Resident’s (Disqualification) Bill, where in a reprise of the post – Shah Bano Uniform Civil Code debates, (and a precursor to the more recent Triple Talaq controversy) the Bharatiya Janata Party and strands of the Indian women’s movement coalesced in their endeavor to rescue Kashmiri (read Muslim) women from a proposed discriminatory legislation (which was eventually never passed) that sought to disqualify women Permanent Residents if they married “outsiders”.

Neither the original text of Article 35A which modified the application of the Indian Fundamental Rights to Permanent Residents of Jammu and Kashmir; nor Part III of the Jammu and Kashmir Constitution, 1956 which deals with the definition of Permanent Residents, refers to the gender of Permanent Residents, or to their marital status. The definition of Permanent Residents is based on the classification of ‘state subjects’ (subjects of the erstwhile Dogra Kingdom of Jammu and Kashmir) on the basis of birth (being born in the territory of Jammu and Kashmir before a certain date), descent (being born to parents who are Permanent Residents), years of residence and ownership of immoveable properties, under two ‘State Subject Notifications’ (I-L/84 of 20 April 1927 and 13/L of 27 June, 1932). There is no bar on daughters becoming Permanent Residents under the descent-based definition of state subjects.

So where does this persistent and pernicious myth about Jammu Kashmiri women losing their legal status upon marriage come from? Note III to the State Subject Notification of 1927 states “The wife or a widow of a State Subject of any class shall acquire the status of her husband as State Subject of the same Class as her husband, so long as she resides in the State and does not leave the State for permanent residence outside the State.” This means that when any woman marries a Permanent Resident, she becomes a Permanent Resident too for the duration of her lifetime, unless she divorces him or permanently leaves the territory of Jammu and Kashmir. She cannot be deprived of this status on the basis of the death of, or ceasing to co-habit with her husband, as long as she continues to ordinarily reside in Jammu and Kashmir. There is however no similar clause saying husbands and widowers acquire the legal status of their wives. In the past, the Revenue Department interpreted this clause and its absent corollary in a gender discriminatory way that reinforced dominant patrilineal, patrilocal and patriarchal norms of marriage and family. However this has been over ruled by the High Court of Jammu and Kashmir in 2002. It may be worthwhile to delve into this history in some detail.

As early as 1937, there was a judicial recognition of the property rights of state subject daughters who married non state-subjects, in the case of Syed Hakim Ali Shah v Nawab Bibi (cited here and here). The case involved a gift deed made to Mst Ghulam Kabra, by her mother, which was contested by her half-brothers on the basis that Ghulam Kabra had lost her right to “acquire” property upon her marriage to a non State Subject. The court ruled that her marriage to a non State Subject would have no bearing upon her rights to inherit property and that she was entitled to the property as an heir, regardless of the validity or otherwise of the gift deed.

Despite this early positive precedent, the Prakash v Mst Shahini case (1965) ruled that women lose their status as Permanent Residents upon marriage to non Permanent Residents on the basis of private international law principles of domicile as then codified in British law. Mst Shahini was born in Jammu and Kashmir to parents who were state subjects, and was married to Pohu Ram from Sialkot in West Pakistan. After being displaced during Partition violence, she returned to Kashmir as a widowed refugee and applied for a state subject certificate but was denied. She then acquired property in the name of Bindi Ram, a state subject (the court described her as his “mistress”) and then attempted to have it declared as hers which was objected to by other claimants to the property. The Court held that the declaration was impermissible, as she could not directly or indirectly “acquire” property in the state as she was a non-state subject by virtue of her marriage to the late Pohu Ram. It held that the factual question of her domicile by birth or origin was irrelevant since “on her marriage she lost her status in the state, and acquired a new status of being a resident of Sialkot”. It did so on the basis of nineteenth and early twentieth century common law precedents that held “so long as the marriage subsists the wife is incapable of acquiring a separate domicile.” And further that “even on the death of her husband, a widow retains her late huband’s domicile until she changes it by her own act , i.e remarriage.”

This understanding that a woman’s domicile and citizenship status flow from that of her husband’s, is entrenched in archaic common law rules of coverture, norms of male headed household and the international law of domicile by dependency which state that a woman’s legal identity, and the nationality and guardianship of her children, necessarily merge with that of her husband upon marriage. For instance, the nationality of children born outside India before 10 December 1992 is determined by the citizenship of their father alone, rather than that of either parent. In the wake of the second world war, the statelessness of divorced, widowed, and / or displaced women and orphaned children caused by such laws were so acute that UN Convention on the Nationality of Married Women, 1956 which protects married women’s rights to retain or renounce national citizenship in the same way as men under their domestic laws, was the first gender discrimination related multilateral treaty enacted under the United Nations framework, well before the CEDAW in 1978.

Following this ruling, and until 2002 State Subject/ Permanent Residence Certificates issued to women bore a stamp that said “Valid until marriage” on the basis of administrative orders issued by the Revenue Department. In 2002, the Shahini ruling was comprehensively over ruled by a Constitutional Bench of the Jammu and Kashmir High Court in the case of State of Jammu and Kashmir v Dr Susheela Sawhney which decided fourteen writ petitions filed by different women challenging the administrative practice of stamping State Subject certificates and its discriminatory impact on women’s rights to educational and employment opportunities and acquisition of property, upon marriage to a non state subject. The court held that a woman who was a Permanent resident did not lose her status or rights because of marriage, as long as she continued to be a citizen of India. There was no provision in the law dealing explicitly with the status of a woman permanent resident who marries a non-permanent resident. Note III did not apply to a woman who was already a Permanent Resident by virtue of her birth or descent who marries a non-Permanent Resident of the state. The word “acquire” in the Note was held to mean that Note III only applied to women who were originally Non Permanent Residents and had become Permanent Residents by virtue of their marriage. While the provision did create a distinction between non Permanent Resident women (“other citizens”) and Permanent residents, there was no gender discrimination between men and women Permanent Residents, as members of the same class. It was held that while the provision could certainly be tested against the constitutional requirements of gender equality, the Constitution of India itself specifically permitted the legislature to make laws with regard to the rights of Permanent Residents on the basis of place of birth. It could not be declared as ultra vires the Constitution since it did not discriminate on the basis of any of the other prohibited constitutional grounds, namely race, religion, caste or sex. The practice of stamping the Permanent Resident Certificates of women with the words “Valid until marriage” was therefore held to be unconstitutional.

This means that the claim of gender discriminatory property rights regime, as it continues to be made in various national international fora has absolutely no legal basis. However when this is pointed out to its proponents, they sometimes come up with a variation of this argument.

Argument 2. Article 35 A discriminates against women indirectly.

The more involved argument is that the husbands and children born to women who marry non Permanent Residents do not acquire the status and rights of Permanent Residents by marriage or descent, where as wives and children of similarly placed men who marry non Permanent Residents do. This view is premised on the fact that the State Subject Notification mentions the ‘acquiring’ of Permanent Residency by ‘wives’ and ‘widows’ but is silent on that of men. The claim is therefore that Permanent Resident women who marry non Permanent Residents cannot transfer their legal status by descent or their immoveable property located in Jammu and Kashmir to their children, which is a violation of their right to equality vis a vis men who marry non Permanent Residents. It is further a violation of the rights of their children, irrespective of gender, vis-à-vis children whose fathers are Permanent Residents.

While the legal status of children born to Permanent Residents is governed by the Jammu and Kashmir Constitution, 1956 and State Subject notifications, inheritance of property, for both men and women is governed by community based personal laws in Jammu and Kashmir, as it is elsewhere in South Asia. With regard to their legal citizenship status, following patrimonial and patriarchal family norms and customary practice, children usually inherit the family names, religious identity and legal (citizenship) status of their fathers, though there is nothing in the letter of the law that prevents the opposite from happening, and this position has never so far been challenged in a case. The Indian Supreme Court has in the past re-interpreted personal laws enshrining patriarchal norms for the guardianship of minors in gender –just ways.

With respect to inheritance of property if a woman and her children are Hindus as defined by Hindu law (which includes Buddhists in India but not in Jammu and Kashmir) the children will inherit in accordance with the rules of Hindu succession, if they are Muslims the succession will follow Islamic law and practice. If, for instance, a Hindu Permanent Resident marries a Muslim Permanent Resident, irrespective of the gender of the parties, or the children, inheritance will follow personal law rules that govern the marriage. This then is not a claim of gender-based discrimination, but a claim of differential citizenship rights and rights to property on the basis of custom and/or personal laws. It may be worth pointing out that Islamic custom, which held the force of law in Kashmir, was in several respects (for instance rights of unmarried daughters and adopted children) more progressive and gender equitable than the rights accorded under the Sharia law. However these positive differences were removed in 2007, (with no objections one might add from either the Indian women’s movement or the BJP), when the Jammu and Kashmir legislature enacted the Muslim Personal Law (Shariat) Application Act, analogous to the Indian law on the subject. This law too has now been repealed and the Indian law itself has been extended as of 31st October 2019.

The majority view in Susheela Sawhney recognized the rights under personal laws of children to inherit property in the state, irrespective of their mother’s marriage to a non Permanent Resident, and hence the claim that children of women who marry non Permanent Residents are inherently disadvantaged in terms of their children’s rights to inherit property is incorrect. However, it is true that given prevailing custom in most families children would take on the status and religion of the father, and since a Non Permanent Resident man does not automatically acquire Permanent Resident status upon marriage to a woman Permanent resident, children born from such a marriage may be at a comparative disadvantage due to societal and customary norms in terms of the other rights such as employment and education that accrue through Permanent Residentship. This is however not a disadvantage that accrues due to the operation of a discriminatory law

The minority view by Justice Muzaffar Jan however disagreed with the majority, stating that a woman Permanent Resident would lose her rights to Permanent Residentship upon marriage to a non Permanent Resident, while also recognizing that personal laws and not state subject laws will govern her rights to inheritance of property. He specifically flagged the issue of rights of children born to such “mixed” couples to further transfer the properties to others, as an open question. This question too has never so far been litigated. It was also not the basis of the constitutional challenge filed by women claiming they had been discriminated against, in the now infructuous challenge before the Supreme Court of India.

The judgment in Susheela Sawhney also noted, however, that it was within the powers of the Legislature to create a rule defining Permanent Residents to exclude women who married non-permanent resident men, but that the legislature had “in its wisdom” not yet done so. Immediately after this judgment the Peoples’ Democratic Party (PDP) , government then in power (in coalition with the Congress) attempted “in its wisdom” to pass a law titled The J&K Permanent Residents (Disqualification) Bill, 2004 which said that women would lose their Permanent Resident status upon marriage. At that time too, BJP mobilized public opinion and garnered support from the Indian women’s movement, calling it a “second Shahbano moment” to argue it was a “fundamentalist piece of legislation” framed by patriarchal Kashmiri (coded Muslim) men to deny women of their rights, pitting the civil rights of Kashmiri women against the Kashmiri legislative and constitutional sovereignty, while erasing the other forms of extreme structural violence and discriminatory treatment that Kashmiri women faced at the hands of the Indian state. Instead of mounting a critique of this framework as a whole, the two largest pro-India Kashmiri political parties, the National Conference (NC) and PDP played into this framing, competing to performatively enact ethno-national politics on the reproductive bodies of “our” women, and staging the question exclusively as a loss of control over Kashmiri land and sovereignty rather than one of gendered citizenship. The bill was passed by the lower house of the State Legislature in barely six minutes, but resulted in chaotic scenes when it reached the Upper House, with the Speaker (who belonged to the alliance partner Congress) finally adjourning the assembly sine die without the bill being passed. State governments made attempts to resurrect the bill in 2010 (PDP) and in 2015 (NC), reprising their earlier arguments about Kashmiri national honour and sovereignity, but with no success. A committee consisting of members of the Law and Revenue Departments of Jammu and Kashmir, was appointed in 2017 to look into this question amongst others and was yet to submit its report as of 5 August 2019. To summarize, therefore, the legal position remains that women have the same rights and status as men Permanent residents, women do not lose their rights or status upon marriage to non Permanent Residents, and the property inheritance rights of children follows the personal law of parties irrespective of their Permanent Resident Status.

While we are on the question of the civil rights of married women, another example may help illustrate the ways in which some women are seen worthy of constitutional rights, while others are not. In 2010, an amnesty scheme was announced allowing militants who had crossed the LoC to the Pakistan held side (Azad Kashmir) for training during the militancy years, to return to Indian Kashmir if the local police verified that they were no longer involved in militant activities. Unable to acquire the required documentation from Pakistani authorities to cross over at the officially designated border crossings, and desperate to avail of the opportunity to return home after years in forced exile, many such “ex-militants” , in some cases with the families that they had established on the other side during their years of exile, fell prey to unscrupulous “agents” who offered to help them cross the border through Nepal and Uttar Pradesh. Others tried to cross illegally through different unauthorized points along the LoC.

They were apprehended, in some cases their passports and other documentation destroyed, and cases filed against them under the Foreigners act, or the Egress and Ingress (Movement Control) Ordinance. Almost three hundred such women married to “ex militants”, some of them of Pakistani rather than Azad Jammu Kashimri origin therefore lacking even state subject certificates, have now been rendered stateless, and stranded, as the Indian government has refused to recognize their rights to Indian citizenship on the basis of their marriage. Some have been jailed along with their husbands, others are in prison while their husbands were acquitted or vice versa. Some claim they were forced into migrating, others that their children were brought to Indian Kashmir without their consent and they were forced to follow. Many face discrimination, loneliness and depression with marital families reluctant to accept them after so many years of no or little contact. Their husbands are under constant suspicion and surveillance as “former militants” must report to the police station, and are detained at the slightest hint of trouble in their area.  Without papers they are unable to return or even visit their homes across the LoC in Azad Kashmir or in the Pakistan mainland, despite some of them being divorced or estranged from their husbands, or facing violence in their marriages. Their children find it difficult to get admissions in schools, neither they or nor their husbands can get government jobs. Yet being Muslim, (Kashmiri or in some cases even Pakistani) means unlike the largely Kashmiri Hindu women who challenged the alleged discrimination on grounds of the existence of Article 35 A, and who nevertheless continue to have all the Constitutional protections of Indian citizenship, these women have lost even the right to have rights, by virtue of their marriages.

AFTERWORD

The abrogation of Article 370 has been accompanied by many colossal whoppers about its politics and history, and deliberate disinformation about the consequences for legal and constitutional rights and status. Yet in Kashmir, from where I write this, none of it matters. It is all of a piece with India’s long history of lawlessness and lies in the name of law. In the face of overwhelming ontological insecurity and terrifying state brutality, no one, not even the lawyering community (such of them as are not busy filing habeas corpus and bail petitions or themselves hiding from arrest), can be bothered to pore over the niceties of how exactly the deed was accomplished. With no Internet access many Kashmiri lawyers I speak to have not so far been able to read the full text of the two Constitutional Orders that altered their fate. What, after all, is a legal sleight of hand or an elaborately constructed constitutional lie when you have not spoken to a beloved daughter in two months? Who cares if Tulsi Gabbard (“who?”) or the late Arun Jaitley (“he died?”) misrepresent the nature of property rights that daughters enjoyed under your one-time, so-called semi-autonomous legal system? Many had not heard that this was even a thing. When I informed them, seething with indignation, they shrugged. “Yes” they said. “They lie.”

In such circumstances, engagements with legality, especially deep dives into technicalities of its amendments and contestations, run the risk of being read as an amplification and authorization of its awful force. An essay such as this one, detailing the intricate falsehoods regarding women’s rights to equality that are being deployed in court and elsewhere as justifications for the constitutional changes, make little sense to Kashmiris, and will make no difference to their lives. These are, in the final reckoning, lies told both at home and abroad for the gratification of those who stand, or wish to be seen as standing by law’s promise– its ability to act as a force of enfranchisement, emancipation, and equality. Not for an occupied people, whose government is an administrative authority under military command and who must only and always suffer the traumas of law’s blunt force. In “debunking” specific myths about the law in Kashmir I must confront my debilitating doubts about reinforcing a big, fat, foundational lie –that justice for Kashmiris is possible in a legal system premised in Indian law and constitutionalism once it is stripped of the falsehoods and injustices perpetrated in its name.

 

Nonetheless, I have persisted with writing this essay, because I think it vital for those of us who have the luck to be outside of the direct line of fire, to bear witness to the lies and lawlessness that are the terrifying telltale heart embedded in law’s foundations. Such witnessing is critical to understanding how claims about rule of law, democracy and constitutionalism are the machine that drive ‘normalcy’ in Kashmir— the normalization of a state of perpetual violence and permanent war. This is why claims about constitutional rights of women and differential jurisdiction can be made with no reference to the martial and extraordinary laws that view war rapes as an act that occur in the ordinary line of duty and that soldiers must be protected from being prosecuted for. This is why the Indian state didn’t only deploy overwhelming military force in “integrating” Jammu and Kashmir on 5 August (it has, after all, been in effective military control of this territory for decades); it also staged the spectacular constitutional theatre of a very public, parliamentary dismemberment. Legal scholar Nasser Hussain reminds us that the writ of habeas corpus—the ultimate judicial prerogative in aid of human liberty, was indispensable to the British-Indian colonial regime of collective punishment and conquest. It is, he tells us, from such everyday performances and invocations of rule of law, that sovereign authority draws its living power to enact and suspend law, and in so doing remakes and unmakes the lives of its subjects.

 

 

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Shrimoyee is a lawyer and legal researcher currently based in Delhi . She lived and worked in Srinagar from 2012-2018, researching and writing on issues of militarisation, state violence and emergency laws

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