Kavya Nankani

 

 

 

1.1 Rights

 

Rights can be understood as guaranteed legal conditions enjoyed by a person that cannot be infringed upon or compromised by another person or state. Every individual, by virtue of being a human being is endowed with certain rights that cannot be taken away from him. It is the responsibility of the government or legal system to endorse and safeguard these rights.

 

The concept of rights has evolved and expanded over the years but its essence remains the same as it was when propounded by English political theorist John Locke in the 1600s. He was one of the first to advocate the notion that people were born with certain inherent or ‘natural rights’. He defined the fundamental rights to be the right to life, right to liberty and right to property. Since then the purview of fundamental rights has expanded and countries have devoted constitutions and statutes to guarantee these rights of citizens. Wars have been waged and revolutions have taken place with the aim of securing rights for people. The world has come a long way since the days of slavery and subjugation. Yet, even today there are undoubtedly certain loopholes present when it comes to guaranteeing equal rights to people in almost every nation of the world.

 

The basic rights guaranteed by most liberal democratic societies are quintessentially the same. The United States of America has the Bill of Rights. In Canada the Canadian Charter of Rights and Freedom guarantee the human rights. Its French counterpart is the Declaration of the Rights of Man and Citizen. Part III of the Indian constitution contain article 14 to 35 which embody the Fundamental Rights guaranteed to the citizens of India which are justiciable before the highest judicial authority of the country, the Supreme Court of India.

 

 

1.2 Women’s rights

 

It is a well-known fact that even today, most societies around the world are patriarchal in nature. Women bear the brunt of this patriarchy in the form of discrimination, violence or subjugation. “Women’s Rights” was a concept that emerged in during the women’s rights movement in the nineteenth century and the feminist movement in the twentieth century. These are rights or entitlements that are declared specifically for women and girls worldwide so as to protect their interests in a world that is entrenched in patriarchy. Some countries institutionalize women’s rights, support them by law, customs, and behavior, while other countries refuse to acknowledge the concept of women’s rights.

 

There is usually great debate and discourse surrounding the question of what constitute women’s rights. Typically it refers to those rights that ensure equal treatment and equal opportunity as men in areas where men and women share the same capacities. Women's rights may also include provisions for the protection of women where women go through special circumstances such as pregnancy and are therefore given maternity leave, or where they are more vulnerable to mistreatment such as violence or rape.

 

At the international forum, there are conventions that are specifically for women to uplift them so that they are no longer the weaker section of society. Many UN member countries ratified the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) in 1981. CEDAW aims at protecting the political, economic, social, cultural and civil rights of women. Article 1 of CEDAW defines discrimination as against women as:

Any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.

 

The provisions of CEDAW encompasses the elimination of bias in public education and the political rights to vote and contest elections to public offices. According to CEDAW, women must enjoy equal rights as men when it comes to marriage, divorce abortion and changing nationality. Employment rights form an important part of CEDAW with focus on equal job opportunity and equal remuneration to women as well as maternity leave. It also provides for protection against trafficking and forced prostitution. (Lewis, 2017)

187 countries including India, UK, China, France etc. have signed and ratified CEDAW. Iran, Somalia, Sudan and Tonga have not signed this convention. Interestingly, USA, the self-proclaimed champion of democracy and human rights has signed but not ratified CEDAW. American critics of CEDAW claim that it does not reflect American values enough. The ratification of all human rights treaties are strongly opposed by conservative organizations, such as the Home School Legal Defense Association and Concerned Women for America because they believe that such treaties infringe American sovereignty. (Baldez, 2013)

 

1.3 Rights for women in India

 

Article 14 of the Indian Constitution ensures equality before the law and equal protection of the law to each and every citizen. Article 15 prohibits the state from discriminating against any citizen on the basis of their religion, race, caste, sex or place of birth. Clause 3 of Article 15 allows the state to make special provision for women for their upliftment. In other words, the state is permitted positive discrimination in favour of women. Furthermore, Article 16 ensures the quality of opportunity for all citizens in matters pertaining to employment or appointment to any office under the State. Article 23 prohibits human trafficking and forced labour. Article 39 deals with allowing men and women to equally assert their right to livelihood, access to justice and equal remuneration for equal work. Under Article 39(e) the state is must guarantee that the health and strength of women workers are not harmed and that they are not obligated by economic needs to resort to occupations unfitted to their strength. (EduGeneral, 2017)

Apart from these constitutional provisions, there are certain legal provisions that also safeguard women’s rights in India. The Hindu Marriage Act 1955, the Special Marriage Act 1954 provides equal rights to Indian man and woman in respect of marriage and divorce. The Indian Succession Act 1925 states that every Indian is entitled to equal shares for inheriting the property on the death of the person. The Hindu Succession Act 1956 realises the right of women to inherit parental property equally with men. A deceased man’s property, intestate, must be devolved equally among his son, daughter, widow and mother. (Razack, 2014)

 

 

The constitutional rights and legal provisions are applicable and available to all citizens (specifically women) in every state of India except the state of Jammu and Kashmir. After demands from Sheikh Abdullah and insistence from Jawaharlal Nehru, Article 370 was drafted in part XXI of the constitution. Article 370 was placed under the category of ‘temporary and transient’ provisions.Broadly speaking, Article 370 restricted the power of the Indian parliament to make laws that were applicable in the state of Jammu and Kashmir. The parliament could only legislate in Jammu and Kashmir onthose matters present in the Union List and the Concurrent List, which correspond to matters specified in the Instrument of Accession, as per declaration by the President. These matters were surrounding currency, communication, defense and foreign affairs. For any other law of the Indian parliament to be enforceable, it has to be ratified by the Jammu and Kashmir state legislature. (Bhatia,2017)

The Directive Principles of the State Policy and fundamental rights guaranteed by the Constitution of India are not applicable to Jammu and Kashmir. In fact, till 1965, the state had Sadr-e-Riyasat, in place of Governor, and Prime Minister in place of Chief Minister.

And unlike the Preamble of India, which starts with "We, the people of India", the Preamble to the Constitution of Jammu and Kashmir starts with, "We, the people of the state of Jammu and Kashmir." (Prateek, 2016)

 

1.5 Article 35 A

 

Clause 1 of Article 370 allowed the issuance of the Constitution (Application to Jammu and Kashmir) Order 1954 by the President. The order of 1954 allowed Article 35A to be added to the constitution of India. The addition, deletion or alteration of an Article in the constitution amounts to amending the constitution. The power to amend the constitution has been enshrined in Article 368 of the constitution. This states that the constitution can only be amended by a bill passed through parliamentary procedure. However, on May 14, 1954, Article 35A was added to the constitution of India through a presidential order and was never passed or discussed by the parliament. Article 370 nowhere mentions bestowing powers to the president that are so vast that he can amend the Constitution of India. Article 35 A was not placed immediately after Article 35; it was put outside the main body of the constitution, in the appendix. It seems like a deliberate attempt to hide this legislation from legal and public attention because it is unlikely that it will stand the test of constitutionality. In fact even the practicing lawyers and law students were unaware of the existence of any Article 35A until a couple of years ago. Even constitutional experts and the high courts and Supreme Courts had not taken up the task of checking the constitutional validity of Article 35A until recently. (Kaul & Sagar, 2017)

Article 35A is concerned with saving laws with respect to permanent residents and their rights in Jammu and Kashmir. It defines the classes of people who are, or shall be, permanent residents of the State of Jammu and Kashmir. It confers on such permanent residents special rights and privileges or imposes restrictions on non-permanent residents in matters regarding employment under the state government, acquisition of immovable property in the state, settlement in the state and scholarships or aid from the state government through its schemes. (Article 35A, Constitution of India)

The State of Jammu and Kashmir, in defining who can be considered as a permanent resident, explicitly discriminates against the women in the state. As a consequence of Article 35A, a woman who has inherited the Permanent Resident Certificate (PRC) loses this certificate if she chooses to marry a non-resident of Jammu and Kashmir. In 2002, the high court of Jammu and Kashmir had delivered a landmark verdict in the Susheela Sahwhney vs. State of Jammu and Kashmir case wherein it prohibited the state government to issue Permanent Resident Certificates for women and girls with the term ‘valid till marriage’ on it. Hence ensuring that women get to keep their status of permanent resident of Jammu and Kashmir even if they marry a non-resident of the state. (Susheela Sawhney vs. State of Jammu and Kashmir)Unfortunately, the state government did not implement these instructions given by the high court. Thus, even today, women are discriminated against if they choose to marry outside the state, or even a non Permanent Resident Certificate holder who resides within the state. She loses her right over her property, the right to vote or contest elections for the state legislature, the right to work in a state office, public educational or service center. In addition to this, her children will not be Permanent Resident Certificate holders and will thus, not be able to inherit her property. They will basically be denied any civil, political and economic rights within the State of Jammu and Kashmir. (Sethi, 2013)

 

In contrast to this, if a male permanent resident of Jammu and Kashmir marries a non-resident, his wife will be granted the Permanent Resident Certificate and will be allowed to enjoy all the rights within the state.Thus, this article is discriminatory and unjust. It gravely impacts the lives of the women in Jammu and Kashmir.

Women constitute 5.9 million of the population in Jammu and Kashmir. Under Maha raja Hari Singh’s rule, women in Jammu and Kashmir were treated as equals to their male counterparts in matters regarding to the State Subject Certificate. The Maharajas laws regarding residency were gender neutral which came through in the notifications issued by him in 1927 and 1932. Even the subsequent state government in Jammu and Kashmir had not introduced any discriminatory laws related to State Subjects. The concept of issuing Permanent Resident Certificate with ‘valid till marriage’ for women was introduced later. (Malhotra, 2017) In the present matter, the gender question is all encompassing — Article 35A is interpreted differently for men and women, and that is where the issues begins. The tacit interpretation of such a provision would simply be that women are considered chattel and property of the men who “own” them, and hence, if their geographical location changes, the status of their rights would too. (Bhattacharya, 2017) This can be inferred by a statement made by the Jammu and Kashmir law minister, Muzzaffar Beg in 2014 wherein he stated it was “universally accepted that the woman follows the domicile of her husband.” (DNA, 2010)

To investigate the impact of Article 35A on the rights and lives of the women of Jammu and Kashmir, the researcher visited the state in December 2017. During her visit, the researcher interacted with the locals of Jammu and the affected parties of this act. The information extracted has been described in detail in the following chapters of this dissertation.

References

 

Lewis, J (2017) “What are Women’s Rights?” ThoughCo, Retrieved from: https://www.thoughtco.com/what-are-womens-rights-3529028

 

Baldez, L (March 9, 2013) “U.S. drops the ball on women's rights” CNN, Retrieved from: https://edition.cnn.com/2013/03/08/opinion/baldez-womens-equality-treaty/index.html

 

The team (August 3, 2017) “Women Rights in India: Constitutional Rights and Legal Rights” EduGeneral, Retrieved from: https://edugeneral.org/blog/polity/women-rights-in-india/

 

Razack, J (2014) “Inheritance and Succession, Rights of Women and Daughters under Personal Laws” LexOrates, Retrieved from: http://www.lexorates.com/articles/inheritance-and-succession-rights-of-women-and-daughters-under-personal-laws/

 

Bhatia, K.L “Article 35A, A mishmash of the Textual Constitution of India!” Article 35 A, retrieved from: http://www.article35a.in/2017/09/article-35a-mishmash-of-textual.html

 

Prateek, S (Feb 05, 2016) “Did You Know Jammu And Kashmir Has A Separate Constitution?” ScoopWhoop, Retrieved from: https://www.scoopwhoop.com/Jammu-And-Kashmir-Has-A-Separate-Constitution/#.fenst1vs1

 

Kaul J, Sagar D (2017) “Article 35A: Face the Facts” (ed 1) Jammu and Kashmir Study Center, New Delhi, Pragati Creations.

 

Susheela Sawhney vs State of Jammu and Kashmir LPA (sw) No. 27/79 C/w LPA (ow) No. 24/79(Jammu and Kashmir high court October 07, 2002).

Sethi, S (December 3, 2013) “Women’s rights in J&K” Daily Excelsior, retrieved from: http://www.dailyexcelsior.com/womens-rights-in-jk/

 

Malhotra, G (April 21, 2017) “90 years of confusion in PRC for Discriminating Women” Daily Excelsior, retrieved from: http://www.dailyexcelsior.com/90-years-of-confusion-in-prc-for-discriminating-women/

 

Bhattacharya, D (August 16, 2017) “Article 35A debate in Jammu and Kashmir: Plea against special law is about women's rights not political future of Valley.” Firstpost, retrieved from: http://www.firstpost.com/india/article-35a-debate-in-jammu-and-kashmir-plea-against-special-law-is-about-womens-rights-not-political-future-of-valley-3936559.html

 

Chowdhary, R (April 23, 2010) “Kashmir vs Women” DNA, retrieved from: http://www.dnaindia.com/analysis/main-article-kashmir-vs-women-1374449

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