A bit more than gender

BACK TO BASICS

The J&K Permanent Resident (Disqualification) Bill 2004 is discriminatory. Any law that makes a disqualification on the basis of gender alone cannot be supported. There can be no two ways about it.

According to this Bill, women in Jammu and Kashmir lose their permanent domicile status in case they marry non-state subjects. The concept of a state subject is unique to Jammu and Kashmir and has its origins in the State subject law promulgated in 1927 by Maharaja Hari Singh to protect the landowning classes of that time; primarily the Dogras of Jammu and the Pandits of Kashmir.

The fact that all the major political parties supported such a biased Bill and got it passed by the state legislature makes it neither any less discriminatory nor any more acceptable.

If there is anything worse than the law per se, it is the motivation of the political parties to be for or against the law. The National Conference is supporting the Bill with the sole intent of breaking the ruling PDP-Congress coalition; the BJP is using it to embarrass the Congress at the national level by arguing that it is a partner in the government that approved the Bill; the PDP is supporting the Bill so as not to give the National Conference a stick to beat it with in the forthcoming elections! The difference between changing this law and weakening Article 370 is semantic.

Be that as it may, all reasons are petty and pedestrian. But that is how it is not just in J&K, but all over the country.

Notwithstanding the regressive and discriminatory nature of the law, two issues related to the mainstream response to the Bill need to be discussed.

First, is the cacophony implying a hidden Islamicist (read barbaric) agenda of Kashmiris in denying women their basic rights justified and correct?

Second, more important, is the direct intervention of the Prime Minister and the not so covert pressure tactics of the Centre on the state government to change its position acceptable?

If a democratically elected legislature passes a law, howsoever regressive it may be, should the Union government make efforts to bypass it or dismiss it off-hand? If there are efforts to override it, what happens to the sanctity of the legislature?

This is especially so in a unique case like J&K where the residuary powers rest with the state and not the Centre.

First, the facts. There is no 'Islamic barbarianism' implied in the law.

This Bill does nothing more than making explicit the law that has been in force since 1927. The law promulgated by the Maharaja is that the woman for the purpose of domicile status will acquire the status of her husband, if the husband is a state subject. If the husband was not a state subject, the woman would also not be treated as state subject even though she may have been one before marriage.

For the last 77 years, it has been interpreted to mean that women lose their right to inheritance when they marry an outsider. The focus is more on the domicile aspect than on the gender. A simple and straightforward way to bring this point home would be to make the Bill gender-neutral and disqualify both men and women.

The only catch is that statistics show that there has been a rising trend in J&K women marrying non-state subjects and moving out. On the other hand, there are many state subjects marrying non-J&K women and staying back in JK.

Given that most people in J&K would want to ensure that non-residents don't own property, the proposed law seems to be a reasonable way to go about doing that. The law is mediated on the current situation.

The second issue is trickier. Technically speaking, the J&K Assembly is well within its rights to pass the Bill. The Jammu and Kashmir Constitution (Amendment) Act, which has been in force since May 1954, empowers the State Legislature to define and regulate the rights of permanent residents by a two-thirds majority. It may be noted here that the state has tough domicile laws.

In the case of the present Bill, there may be complete unanimity about its violation of Article 14 of the Indian Constitution.

However, the issue that has come to the fore is that of central interference in state matters that have serious ideological content.

What happens, for example, if the state legislature tomorrow passes a land reform law by which the state acquires and redistributes all specified land over and above a certain ceiling?

This is not an entirely fictitious example. In 1950 when the Big Landed Estates Abolition Act was passed, it was seen as violating the Right to Property.

The way out, at that stage, was to restrict the application of all Fundamental Rights to the state of Jammu and Kashmir. Such a solution cannot be thought of today. The relationship between the Union and the State then was far too nebulous and still evolving. Now it is a different ball game.

Similarly, what happens if the state legislature passes a banking Act that may be valid but is not completely in line with the current banking legislation in the country? How will the issue get resolved?

The way the government of India handled such a situation a couple of years ago is certainly not the answer. Three years ago, the democratically elected legislature of J&K passed a resolution seeking restoration of autonomy, which is well within the Constitution of India.

The Union Cabinet dismissed it even without a reference to Parliament! Such an attitude undermines the democratic authority of the legislature. This, in turn, has sequential issues about the form of association of the State with the Union.

haseebd@business-standard.com