Article 35 A: No takers among women and dalits

New Delhi, Aug 31: The Supreme Court of India has adjourned hearing of the Article 35A on its constitutional validity till January 2019 that empowers Jammu and Kashmir government to define the state's permanent residents and their rights.

On May 14, 1954, the President issued an order called the Constitution (Application to Jammu and Kashmir) Order 1954. It superseded the Constitution (Application to Jammu and Kashmir) Order 1950. This presidential order 'added' a new "Article 35A"after Article 35 to the Constitution of India.

Jammu Kashmir Study Circle director Aushutosh told One India, "Addition or deletion of an Article amounts to an amendment to the Constitution. And the Constitution can be amended only by Parliament as per procedure clearly laid out in Article 368. But Article 35A was never presented before Parliament of India." So the seven percentage populations is on rampage and pampered while 93 per cent are not even being talked. They are also not talking about its victims.

Do J&K women enjoy the same rights as men?

Despite the fact that constitution guarantees gender equality across the country, for J&K women the answer is no. The helpless women continue to be victims of gender discriminations 68 years after independence. Here is how:

If a man marries outside the state:

Permanent resident men of J&K who marry outside the state can bring home their wives. These wives are entitled to permanent resident certificate (PRC) and all 'privileges' it entails. These women may be from any part of the world. Children born from these marriages will also get PRC rights in J&K without hassle.

If a woman marries outside the state:

When women belonging to J&K marry outsiders, they cannot settle in the state even if the circumstances so demand. A man from another state marrying J&K a woman cannot get PRC, hence none of the associated benefits. After a legal battle, in 2002, the women of J&K won the right to retain their PRC status after marriage. But the discrimination continues - because their children are still not eligible for PRC.

Retrograde Politics

Many affected women of J&K from different communities went to court challenging the law. The J&K High Court gave a verdict on cases challenging this gender discrimination. In the final verdict, Justice V K Jhanji wrote: "Accordingly, I hold that the daughter of a permanent resident of the State of Jammu and Kashmir will not lose status as a permanent resident of the State of Jammu and Kashmir on her marriage with a person, who is not a permanent resident of the State of Jammu and Kashmir."

In March 2004, the then government headed by Mufti Mohammed Sayeed tried to overturn this verdict when it brought in the infamous Bill named "The Jammu and Kashmir Permanent Resident (Disqualification) Bill 2004". The aims and objects of the legislation as set out in the preamble were: "A Bill to provide for disqualification from being a permanent resident of the State on marriage of a female permanent resident with a non-permanent resident".

The Bill was passed by the Legislative Assembly unanimously within minutes of being moved by PDP's Law Minister Muzaffar Hussein Beigh. It is noteworthy that the two main rival political parties of the State, the ruling PDP and opposition party National Conference (NC), voted together on this Bill.

There were massive protests in the Jammu region against this Bill. Under pressure from the people and both the BJP (opposition party) and the Congress (coalition partner of PDP), the Bill was not passed in the Legislative Council. The Bill lapsed and could not become a law. Had it been passed, it would have come into force retrospectively with effect from October 7, 2002, the day the High Court delivered its judgment.

Misery of West-Pakistan Refugees

Those who migrated from West Pakistan to the Indian state of Jammu-Kashmir during Partition in 1947 have been living there since last 68 years. But over six decades later, they are still identified as 'refugees' and forced to live in 'camps'. Even the third generation is tagged as 'refugees' and denied rights and privileges that should have been immediately granted to those who were forced to migrate from Pakistan.

Compare their situation with those who migrated from Pakistan to other parts of India such as Delhi, Mumbai, Surat etc. After over six decades of living like bonded labour, these families want to be free of the 'refugee' tag.

The discrimination

Around 5,764 families consisting of 47,215 persons migrated from West Pakistan to different areas of Jammu Division. No land was allotted to them by the State Government. These refugees were able to occupy some land, which was later allowed to be retained by them without conferring upon them the title of land because of their non-permanent resident status. This means they can stay on this land, but cannot sell it or buy any other property.

West Pakistan Refugees (WPR) are mostly from the deprived sections and more than 80% of them belong to the Scheduled Castes. The J&K law for them means - they can be tillers, labourers, tenants but not land-owners and land-lords.

By some estimates, it's about three lakh now but they are denied PRS in J&K. WPRs cannot get a job in the government. WPR families can't avail the benefits of social welfare schemes of the state government. Their children are not entitled to scholarships and freeships available to PRC holders. Members of WPR families cannot get admissions in any state-run professional colleges. They are not even eligible to cast their vote for State Assembly elections. They have no participation in local village panchayats and other self-governing bodies up to the district level.

Valmikies Victim

In 1957, around 200 Valmiki families were brought from Punjab to Jammu-Kashmir, following a cabinet decision, specifically to be employed as Safai Karamcharis (sweepers). These families agreed to work in the state after being promised that the 'permanent resident' clause would be relaxed in their favour.

After a lapse of five decades, family strength of each family has increased and number of employees has gone up. However, their plight is that they are 'permanent residents' of Jammu-Kashmir only to the extent of being SafaiKaramcharis! Their children have studied up to graduation level but are not eligible to apply for government jobs. Their children cannot get admission to government-run professional institutes.

Educated youths from Valmiki families are only eligible to be appointed as safaikaramcharis! The educated Safai-Karamcharis already working in Jammu Municipality now qualify for further promotions. These Safai-Karamcharis can vote for Lok Sabha elections, but not for State Assembly or municipality elections.

(In conversation with Ashutosh Bhatnagar, Director Jammu and Kashmir Study Circle)