Modish Mantra

BJP rising avtar Narendra Modi was fiery in selling half truths to an audience that historically fought Kashmir’s exclusivity in the region. Akin to an illiterate proletariat, he gave a new dose of half truths and lies to consolidate his grip over bourgeoisies. But why did Modi rake up the sensitive domicile laws involving daughters marrying non-locals, years after NC and PDP surrendered the tradition in the interest of staying in power, reports R S Gull


Speaking to a huge crowd chanting Har Har Modi, Ghar Ghar Modi, the Gujarat Chief Minister and BJP’s Prime Ministerial candidate Narendra Modi was highly respectful for the autocrats that misruled J&K. He mentioned Hari Singh. But then he moved to Chief Minister Omar Abdullah’s sister Sara to make his point that J&K is discriminatory to its women population because of the laws in vogue. The law that Hari Singh ensured must be in place.

“Omar Abdullah has his rights but the same rights can not be enjoyed by Sara (his sister),” Modi roared. “Because she married outside Kashmir,” Modi said it is not a Hindu versus Muslim thing but a man versus woman. This is sheer discrimination, he said.

Sara is Dr Abdullah’s youngest of the three daughters who is married to Sachin Pilot of Rajasthan. Pilot is a minister in Dr Manmohan Singh’s government.

While Modi indulged in making a lot of statements including messing many issues with Article 370 that smacked off his ignorance, he did successfully trigger a debate. Within less than 24 hours, a number of media organizations had special debates on the issue of systemic discrimination of women in J&K. His support came from Sunanda Pushkar, the media dubbed “Rs 50 crore girlfriend” who eventually became Congress minister Shashi Tharoor’s wife.

“My friends from Kashmir called me and said that we girls do not get government jobs once we marry someone who is a non-Kashmiri,” Pushkar, an erstwhile resident of a Sopore village, told a debate on TV. “The girls who get married into Kashmiri families, who are not Kashmiri girls, they get government jobs and their children have all of the rights.”

Discussions on the issue became so sensitive that Dr Farooq Abdullah walked out of NDTV show that Barkha Dutt was anchoring. Congress’s women face’s in Delhi were confused to the extent that they simply acknowledged that they require consultations to understand the issues involved.

This was despite the fact that Chief Minister Omar Abdullah, responding to Modi, had cleared his party’s position. “That the NC supported a bill that would have continued the discriminatory framework against women some years ago is a fact, no denying that,” Omar wrote on micro-blogging site twitter after BJP leader Arun Jaitely accused NC of being supportive of the law. “That the NC, in power for five years now, has made no attempt to revive that bill, nor has any intention to do so, is also a fact that cannot be denied.”

Issues regarding women’s marriage are outside the Article 370. These are part of the state’s tough domicile laws that once distinguished J&K from the rest of the states forming the Indian union.

BJP president Raj Nath Singh and its prime ministerial candidate Narendra Modi at “Lalkaar” in Jammu. Pic:Asif Naik
BJP president Raj Nath Singh and its prime ministerial candidate Narendra Modi at “Lalkaar” in Jammu.
Pic: Asif Naik

The state subject law owes its genesis to the last autocrat of the princely state Maharaja Hari Singh who issued a proclamation on April 20, 1927, placing state subjects in four different categories. It was supplemented by another notification of June 27, 1932. The twin royal decrees were, in fact, the autocracy’s response to an agitation launched by the Kashmiri Pandits seeking a ban over the entry of outsiders into the state. The massive immigration, they said, was marring their employment opportunities.

These proclamations were incorporated in section 6 of the state constitution when it was adopted in 1954. A permanent resident, according to state provisions read with Article 35 (a) of the Indian Constitution, is the person who has been living continuously in J&K for ten years prior to May 14, 1954, and must have acquired immovable property lawfully. All those citizens who became part of the territory administered by Islamabad after 1947 are also state subjects of the state.

Sub-section (3) of the Section (6) of the state constitution provides that the expression “State Subject of Class I and Class II” shall have the same meaning as in State Notification No 1-L/84 of April 20, 1927, read with State Notification No 13/L of June 27, 1932. Notification 1-L/84 provided that the wife or 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 clearly means that a woman, otherwise a state subject ceases to be so upon her marriage to a non-state subject. Consequently, the practice of issuing permanent resident certificates to women had a ‘valid till marriage’ stamp.

But that was once upon a time.

This practice was finally challenged in the court of law by the women who married non-locals but were keen, for one or the other reason, to be the state subjects. Since DrSusheelaSawhney challenged the practice in 1977, there were as many as 12 such petitions pending before the J&K High Court. These included DrRavinderMadan (pending since 1979), Harjeet Singh (1980), DrRubeenaMalhotra, Sunita Sharma, DrAbha Jan (1985), Anjali Khosla (1986), Kamla Rani (1992), DrReeta Gupta (1994) DrShabnamTaj (1997), Shruti (1998) and RanjuModi (2001). The women petitioners wanted the court to examine the gender biased domicile laws are and make justice.

A division bench comprising justices Muzaffar A Jan and V K Jhanji had a difference of opinion when the High Court clubbed all these petitions pending for 23 years and sent to them. Justice Jan held that on marriage with a non-permanent resident, the daughter of a permanent resident shall loose her status as a permanent resident of the state. However, Justice V K Jhanji held that there was no provision which disentitled a permanent resident woman of J&K to lose that status only on account of her marriage to a non-local. Besides, he observed that the state legislature is empowered under section (8) of the constitution to make such a law of disentitling a permanent resident woman to such status after marriage to a non-permanent resident. The dissent led the case to a full bench that among the two included Justice T S Doabia.

Shashi Tharoor and his Kashmiri wife Sunanda Pushkar.
Shashi Tharoor and his Kashmiri wife Sunanda Pushkar.

On October 6, 2003, the full bench ruled that daughters will remain daughters. The majority of the full bench held that “there is no provision in existing law dealing with a status of a female permanent resident who marries a non-permanent resident.” Justice Jan – the only local and Muslim judge in the three-judge bench, however, recorded his 24-page dissent.

It was Kashmir’s big, what Shobha De says, ‘Mahila Moment’. Elites who were the beneficiaries of the verdict had low-key kitty parties.  Even after the court ruled on the issue, the tradition was not given up. Deputy Commissioner’s continued stamping ‘valid till marriage’ till Prof Hari Om, then with BJP and now with Congress, challenged the practice by filing a Public Interest Litigation (PIL). His plea was that the stamping was contempt of the court that had nullified the practice in DrSusheelaSawhney case.

A division Bench comprising Justices VK Jhanji and YP Nargotrain September 2004 issues notices to the state and later in July 2005 stayed the circular (Rev (LB) 87/74 of January 2005) enabling stamping on unmarried girl’s PRCs. Finally, the government withdrew the circular and the practice came to halt, at least in Jammu.

Once the judiciary did its bit, the politics took over. The traditional practice was impacting a section of the masses that usually belonged to elites in politics, business and bureaucracy.

Dr Farooq Abdullah, for instance, has two of his three daughters settled with non-Kashmiris. It was one of them Sara Pilot whom Modi mentioned in his speech. Same is the case with one of three daughters of Mufti M Sayeed, the PDP founder. His medico daughter Rubiya Mufti is married to a south Indian businessman. Former minister Abdul Ghani Goni’s daughter is married to a top cop Azhar Noamani, same was the case with S S Ali. Daughters of Kashmir’s three former Chief Secretaries Peerzada G M Shunthu, Mir Nasrullah and S A S Qadri had married non-locals. In fact, Rubeena Malhotra, Mir Nasrullah’s daughter was one of the 12 petitioners, the outcome of which led to the nullification of the decades’ old tradition. Former Railway Minister C K Jaffer Sharief’s sons have married Kashmiris. BJP leader ArunJaitley has his in-laws in Jammu. One of Taj Mohi-ud-Din’s daughters is also married outside the state. Former IAS officer Mehmood-ur-Rehman is a proud resident of Rajbagh. More recently Ahmad Patel got his daughter-in-law from influential Nedoos family.

Insiders in the civil secretariat said a very important file containing the petitions of some of the top politicians against the state subject law is missing.

Sachin Pilot with his wife Sara.
Sachin Pilot with his wife Sara.

In last more than two decades, these marriages are taking place at a much larger scale. Sections of students getting married during studies apart, most of Kashmiri pundits have married non-locals, both boys and girls. Sunanda Pushkar is actually speaking for them all.

But the politics had in fact taken over earlier. Soon after the state government lost its case in October 2003, it went to the Supreme Court with a Special Leave Petition (SLP). However, the SLP was withdrawn on November 12, 2003, in a manner that its exposure became almost a scandal and hurt the coalition within. Insisting that the state decided against having any collision with the apex court, the then Law Minister Muzaffar Hussain Baig said: “We took the decision (of withdrawing the SLP) anticipating the possible verdict by the apex court in the light of Article 14 of the Constitution of India that guarantees equality (of genders)”. The government started working to have a law on this subject.

PDP wisdom was challenged openly by the people. They said there was no requirement of surreptitiously (law department came to know of the SLP withdrawal when they were given the fee bills of their standing counsel) withdrawing the SLP because apex court would have never fiddled with the law that is guaranteed by Article 35A of the constitution of India that saves all J&K laws pertaining to permanent residents and their rights “notwithstanding anything in this (Indian) constitution”. The Article is clear and categorical in saying that “….no existing law in force in the State of J&K, and no law hereafter enacted by the legislature of the state ….. shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provision of this Part.”

Mufti Syed with his daughter Rubiya Syed.
Mufti Syed with his daughter Rubiya Syed.

Explains a senior officer: “That was not for the first time that the state subject law was challenged. Earlier the displaced persons and the Sharnarthis approached the Supreme Court but they could never alter the situation.”

Beig kept his word. On March 5, 2004, the last day of the budget session, he came with a piece of legislation – J&K Permanent Resident (Disqualification) Bill 2004 and it was passed barely within six minutes after it was introduced. Cabinet had approved it in an early morning session. The bill came after some spade work that envisaged an all-party meeting in which the blue-print of the new law was approved without any fuss. While BJP and Panthers Party were not invited – apparently because they are not supportive of such legislation, leaders of Congress, National Conference, CPI (M) and Peoples Democratic Forum attended the meeting. They all supported the move.

After the passage of the bill was reported, there was a lull for two days and finally, it created a situation that the coalition seemed to be on a collision course. Eventually, it led to the intervention of the Congress President Ms Sonia Gandhi who advised her party to ensure the bill goes to select committee when it comes under discussion on March 11 in the state legislative council, the house of elders. Fearing the BJP and its allied parties sweeping its vote bank in Jammu, Mangat Ram Sharma, the then Deputy Chief Minster said the “misgivings” will be addressed after the bill is sent to Select Committee, usually the honourable way-out for preventing bills from becoming law. PDP said its passage is the responsibility of the NC because it dominates the house. Under pressure, NC issued a whip to its 15 members in a 30-member house to support the bill.

The concerns emanated not from Jammu alone. Yusuf Tarigami, the Communist legislator said the assembly enacted the legislation in haste and left many crucial issues untouched. “The law is to be comprehensive and sensitive to the aspirations of all sections of the society and must not operate pre-judiciously against half of the population that is already facing discrimination in a patriarchal society”, Tarigami stated suggesting the new law to take into account various situations like the status of women settled outside who could become divorcees or widows. “The criteria should be the intention to make the state as home, which must be applied equally, to both the sexes.” By then, it had already become an issue that BJP and Congress used against each other for votes.

March 11, 2004, was perhaps the most watched session of the Legislative Council ever. The session lasted for six hours. The division was clear – NC and PDP wanted the bill to be voted and the Congress wanted it to go to the select committee. Nothing happened barring fierce speeches. “Unless the doubts are cleared and points raised are answered, this bill cannot become law,” Council Chairman Abdul Rashid Dar ruled. “There is a need for further debate on this issue and this will continue in the next session of the house. Till then the house is adjourned sine die.” Many in the secretariat still believe that Dar obliged Mrs Gandhi who had personally invited him for a meeting in Delhi.

It offered everybody a face saving. BJP and PP claimed they resisted its passage by going to the people. Congress claimed it had threatened fall of the government. NC and PDP said they stood for voting but Dar adjourned the house. Dar was an NC man but, insiders claim, had “personal issues” with Dr Farooq Abdullah. Next morning, Omar Abdullah, then NC president, expelled Dar from NC.

Then, there were only nine votes – eight from Congress and one from PP – that were against the move. Of the 36-seat LC, six were vacant, 15 were with NC, eight with Congress, four with PDP, Panthers and Communists had one each beside a nominated member. Chairman lacks a vote unless there is a tie.

Ahead of June 11, 2004, when the bill lapsed NC desperately sought a session of the LC but the PDP led coalition did not oblige them. “If we chase the deadline, we are bound to make mistakes. So we are redrafting the proposed legislation and incorporating the amendments that it requires especially to take care of divorced females, widows, adopted children and other discriminations that have so far been identified”, Law Minister MuzaffarHussainBaig was quoted saying. And the bill died.

Omar Abdullah and Taj Mohi udin
Omar Abdullah and Taj Mohi udin

On August 18, 2004, when the LC had its maiden session, NC moved a no-confidence motion that fell flat as it lacked two crucial votes – including one of its legislators who abstained – to get the magical 16 required to unseat Dar. He emotionally explained his position but there had been a lot of mechanizations to help him retain his position. Explained Beig to the house: “You (NC) expelled him amid mudslinging and character assassination at the cost of his reputation and we supported him. In the given circumstances when we also wanted him to pass the bill, he stuck to his guns and we take him as an honest man.” Omar termed it the worst instance of horse-trading. Very recently, Dar has joined PDP.

The twin legislative houses remained disturbed for many days as NC wanted to know the fate of the bill. Five days later on August 24, 2004, Law Minister Muzaffar Hussain Beig unveiled the salient features of the new bill he had drafted. “If a woman married to a non-state subject is divorced or widowed, she can come back and regain her state subject status but not their children,” he told reporters after the house was adjourned. “State subjects, irrespective of gender selling their property and giving up the citizenship voluntarily by remaining absent for prolonged duration from J&K would also lose their state subject status.” The new law, he said, would permit the women marrying non-state subjects to dispose off her inheritance so that her children share it. He said the media campaign lacks substance because quite a few women from J&K are marrying non-state subjects. “We did an exercise but there were not many cases from Kashmir barring a few girls who had run away with soldiers or a few cases in Jammu province”, Beig said. Congress High Command’s flat ‘no’ forced PDP to take a U-turn. He never introduced his new bill.

A day after NC’s legislative party leader Abdul Rahim Rather introduced his private member’s bill. Congress opposed it saying the law falls under the constitutional amendment that would require a two-thirds majority so it was put to vote for the introduction. Backroom parleys helped mellow down Mangat Ram Sharma for a debate but Peerzada M Sayeed forced speaker Tara Chand to invoke the voting. And the idea of a debate fell flat. NC accused Tara Chand of being partisan and Yusuf Tarigami left the house saying: “The tragedy is that this house instead of offering us something new devours from what we (already) had.”

When the house resumed on August 27 and Tara Chand put the bill to vote and subsequent defeat, it was a rare sight of Kashmir versus the rest. Thundered Rather: “A campaign has been launched but the people are not being told that it (bill) is nothing new. Indian constitution enshrines similar special provisions for Nagaland, Mizoram, Sikkim, Arunachal Pradesh and parts of Gujarat and Maharashtra.” He regretted that when J&K seeks it (the same thing) “they (Congress) say India is in danger. After all, how can we see India in danger when we face bullets day in and day out for it (India).”

Beig said the bill is in consonance with the national and the global practice that a woman follows the domicile of her husband and in no way tantamount to discrimination. “When Kashmir talks of protecting its demographic composition his nationality is suspected”, Baig said, adding “If Indians need to respect the Indian nationality of anybody it should be a Kashmiri who faces bullets for owing allegiance to the Indian constitution.”

Oratory on similar lines did not help bill that laid dead on the table already.

Nobody talked of the bill for all these years – neither NC nor PDP. Mufti did his three-year term and gave the throne to GhulamNabi Azad. The summer uprising over the Amarnath land row devoured his government. In 2008 polls, numbers, friendship and luck fetched Omar the throne with the support of the Congress.

PDP’s Murtaza Khan dusted the bill he found in party cupboard and brought it for introduction in the LC in 2009. Though there was no possibility of Khan managing the passage of the bill for want of numbers, a revolt was witnessed within days. Congress’s Revenue Minister Raman Bhalla told the house that his party“will never compromise on the women’s rights.” Even the state Congress president Prof Saifud Din Soz, the erstwhile votary of state’s autonomy, ruled out supporting the bill.

By now, even Murtaza Khan has switched sides. He is now with Congress. It is Modi now that is reopening the grave and identifying skeletons for the PDP and NC.

As Modi roared in M A Stadium and Omar jumped in to explain his position, the objective for raking the debate is clear. Sunanda Pushkar’s tweet explains it clearly: “…Now that I am told the (J&K) girls (marrying non-state subjects) can buy (property) let me see but the issue remains why can’t my son inherit it?” Modi was not raking up the past in M A Stadium. He was exploring the future!

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