Primary data for this dissertation was collected by conducting on field research. Surveys were conducted through the medium of questionnaires which were administered in Hindi to eliminate any language barriers and because English questionnaires could have been potentially intimidating. The questionnaire consisted of 2 questions. Data was collected from 15 married women of the West Pakistani Refugee (WPR) community who have never had a Permanent Resident Certificate, 7 unmarried young girls from the Valmiki Samaj who have also never had a Permanent Resident Certificate and a couple of married women belonging to two generations within the same household who had inherited the Permanent Resident Certificate but lost it after marrying men who were not permanent residents of Jammu & Kashmir. To keep their identity confidential, the researcher has given pseudo names to these two women, the older woman shall be called Neeta and her daughter-in-law shall be called Sona. As per the law, their children have not inherited the Permanent Resident Certificate. The responses to the questionnaire as well as the researcher’s observations have been discussed in detail in this chapter.

 

Q. Name

The first question asked the women what their names were. Their names will not be revealed in this research for ethical reasons; however, this question was asked to assess whether the women were comfortable with sharing their name and personal details with the researcher. The researcher observed that the women she interacted with were more than willing to share their names and details. This stemmed from their frustration over their plight and desperation to have their voices heard.

 

Q. Age

 

The age bracket for the women from the WPR community was from 40-60 years. The women from the Valimiki Samaj fell in the bracket of 17-25 years. The former Permanent Resident Certificate holding women belonged to two successive generations, the older women, Neeta, fell in the above 70 years bracket where as her daughter-in-law, Sona, fell in the 35-45 years age bracket.

 

Q. What is your occupation and monthly Income?

 

When asked about their occupation and monthly income, the women of the WPR community were aggravated and responded that without Permanent Resident Certificate, they do not have steady jobs or rather they have no jobs at all. Without Permanent Resident Certificate, they are not entitled to have their own farms. On days that they are lucky, they get employed to do odd jobs or labour work but there is no guarantee that they will get any work on most days. They may be asked by a well off household to wash vessels, take out the garbage or feed the buffaloes on their farms. However, solely because these women belong to the WPR community, they get paid less by their daily employers. The wealthy families in Jammu understand the desperation of this community and thus they exploit their labour and get away with paying them a minimum amount. Sometimes the women may spend their time weaving baskets in an attempt to earn some money. No women’s NGO has reached out to help these women. Their monthly salary is a meager amount of Rs 250 a month.

 

The girls from the Valmiki Samaj are all educated and qualified to take up any job in the government of Jammu and Kashmir, however, without having a Permanent Resident Certificate the girls in this community are condemned to take up the job of a sweeper in the Jammu and Kashmir government offices. Their only other option is to take up employment in private firms, which is not easy because they face caste-based discrimination as they belong to a Schedule Caste. Being part of the Valmiki Samaj is a double edged sword for these women as on one hand they are discriminated against in private firms because they belong to Schedule Castes and on the other hand, the Jammu and Kashmir government refuses to issue Schedule Caste certificate for them and thus they cannot avail of reservation in government services. It is important to note that the women of the Valmiki Samaj face discrimination and subjugation on two levels. They are discriminated against on the grounds of being women as well as belonging to the schedule caste. They do not get any compensation or reservation from the state government even though they are a schedule caste community. On the contrary, their rights are taken away from them. They are belong to a community which migrated to Jammu and Kashmir from Punjab because the Jammu and Kashmir government asked them to. They schedule castes in Punjab enjoying their due rights and hence get further aggravated.

 

Lastly, the women who lost their Permanent Resident Certificate because of marrying non-permanent residents are currently housewives. Neeta’s son cannot be employed in any state or public offices or institutes since he did not inherit aPermanent Resident Certificate. He is currently working in a private company’s pharmacy and is earning enough to sustain his mother Neeta, his wife, Sona and his two sons. They cannot own the property they live without Permanent Resident Certificate.

 

Q. What is your area of residence?

 

The WPR women all hailed from the village of Chatta Satwari Porkulia. The researcher visited the village of Chak Jaimal inhabited by the West Pakistani Refugees and witnessed their poor living conditions. Most of the houses were made of mud with thatched roof. There was no infrastructure development in this village. The women were made to cook on an open flame as they did not have a gas. There was widespread unemployment. This was evident because as soon as the research team arrived at the village at midday, all the villagers immediately assembled to meet them as if they were not busy with any work.

The women from the Valmiki Samaj were all living in the Valmiki Basti in Gandhi Nagar of Jammu. When the researcher took a stroll around the colony, she saw how congested the area was. The houses were built extremely close to each other and were expanding vertically to incorporate the increasing population of the community in the limited land given to them by the government. Their living conditions were extremely unsanitary with an open sewage running right adjacent to all the houses. The open electrical wires running overhead were drooping extremely low, and were almost at eyelevel. This is very dangerous as it increases the possibility of electrocution.

The former Permanent Resident Certificate holding women, Neeta and Sona lived in a rented house in the Samba District of Vijaypur. Their living conditions were much better compared to the two other communities.

 

Q. How long have you lived in Jammu and Kashmir?

All three sections of women i.e. the WPR women, the Valmiki women as well as the former Permanent Resident Certificate holders have been living in Jammu & Kashmir since birth, yet they do not have basic rights such as the right to vote and contest elections to the state assembly and local bodies, acquire immovable property, establish a business etc.

 

Q. Do you have a permit to start a business?

None of the sections the researcher interacted with had the permit to start a business in Jammu and Kashmir.

 

Q. Till what grade have you received schooling? Do your children go to school?

The WPR women the researcher interacted with were uneducated. They are sending their children to school. Being educated and qualified does not ensure employment; most of their children have lost interest in school. They wonder what is the point of getting educated if they will have to continue living life of poverty and unemployment just like their parents and forefathers. Without the Permanent Resident Certificate, they have no life; education is not going to change that.

 

Thewomen of the Valmiki Samaj were all highly educated. Most of them were graduates with degrees in BA or Bcom. They expressed their frustration that despite being qualified they are not allowed to take up jobs other than that of a ‘safai karamchari’ (sweeper). Their viewpoint resonated with that of the WPR, that what was the point of getting educated if their advancement and financial development is restricted by the unjust provisions of 35A. The researcher would like to illustrate this point with the example of a girl belonging to this community- Radhika. Radhika is an athlete who has won multiple medals, trophies and certificates for running, basketball, jumping etc. After passing 12th grade, she wished to join the Border Security Forces (BSF). BSF is a central service, however, she could not even submit the form to enroll herself in the BSF because she was unable to produce the domicile requirement certifications simply because she did not have a Permanent Resident Certificate. Thus, despite having impeccable physical fitness, which is required to join the BSF- a service that comes under the central government- Radhika, could not enroll herself even to give the examination without a Permanent Resident Certificate.

 

Former Permanent Resident Certificate holder Sona, is also a graduate. Her older son wanted to pursue engineering, however he was not permitted to enroll in any government professional course such as engineering, medicine or architecture because he did not have a Permanent Resident Certificate. Thus he resorted to studying law at Jammu University. After seeing his trajectory, Sona’s younger son Vishal also gave up his dream of studying engineering and is following his brothers footsteps and studying law and the same university. If these boys clear the National Bar Exam, they will become members of the National Bar Council and will be permitted to practice in the Supreme Court of India. However, they will not get a licensee from the state Bar Council without Permanent Resident Certificate. Thus, they will not be able to practice in the lower courts in Jammu & Kashmir. They will be able to practice in the Jammu and Kashmir high court after getting permission from the Supreme Court.

 

In conversation with Vishal, the researcher learnt that non-Permanent Resident Certificate holders were permitted to sit the UPSC exam for central government services but could not ask for a domicile preference of Jammu and Kashmir without having a Permanent Resident Certificate. They were even allowed to sit the exam for the state government services but at the time of appointment they were asked for their Permanent Resident Certificate.

Through the responses from all the above-mentioned communities on the topic of education and employment, the researcher found out that those who do not hold the Permanent Resident Certificate are not even entitled to central government schemes such as ‘Beti Bachao, Beti Padhao Yojana’. They do not enjoy the benefits of the Right to Education Act (RTE). In fact, nobody in the state of Jammu and Kashmir enjoys the Right to Educatiom. This is because the state does not guarantee this right under its constitution. They have to pay fees for educating their children in government schools even until 12th grade, after which they are not entitled to any government scholarships even if they are from the Central government. Udaan is a program that aims to provide skills training and increase the employability of youth in Jammu & Kashmir. It is introduced as a partnership between corporates of India and Ministry of Home Affairs. Even though it is a central scheme implemented by the National Skill Development Corporation, in practice, one cannot apply for this initiative without a Permanent Resident Certificate. Sona’s son could not reap the benefit of this scheme. In addition to this, even the Mahatma Gandhi National Rural Employment Guarantee Act (MNREGA) is not applicable to those who do not have a Permanent Resident Certificate in Jammu & Kashmir. The state government refuses to issue a BPL (below poverty line) certificate for the WPR.

 

Q. Are you aware of Articles 370 and 35A

 

All the sections of women were aware of both Article 370 and Article 35A. Their basic understand of 370 was that it gave the central government limited power over the state of Jammu and Kashmir. Awareness regarding Article 35A has only recently spread among these communities. For a very long time their rights were being violated and they remained in the dark about why. Recently, the discourse over 35A has reached their ears and they are willing to make a noise about it. Many of them have already taken their matter to the court and have begun questioning 35A. Vishal who is a law student revealed that the law professors in Jammu University do not teach the students about Article 35A while teaching the Constitution of India. In many cases, the professors themselves are unaware that such a law even exists.

 

Q. Are you satisfied with your existing rights? Do you have any grievances against the central and state government?

 

The answer to this question remained unanimous among all three sections that the researcher interacted with. Not having the Permanent Resident Certificate means these women have no rights in the state. The WPR went to the extent of saying that they have no life in Jammu and Kashmir. They have no access to public healthcare without Permanent Resident Certificate. Since they cannot afford to approach private hospitals or dispensaries they practice home remedies to cure any sick person in their village. Pregnant women are helped by the village women who nurse them during childbirth. The WPR women cited examples of other women who have died during while giving birth because they did not do it at a hospital. Many villagers have died due to illnesses because they do not have access to medicines from public hospitals and their local pharmacy has very limited medicines. They do not have the money to go to private pharmacies to purchase drugs. The state government refuses to acknowledge the existence of this community. Delegations from communities have approached the central government with their grievances regarding 35A. According to them the center continues to ignore this problem in the state of Jammu & Kashmir.

 

Q. Does the Permanent Resident Certificate play a decisive role while choosing a life partner?

 

The WPR and the Valmiki Samaj women do not have much choice when it comes to a life partner. They usually get married within the community to men who do not have a Permanent Resident Certificate either. Consequently their children also do not inherit permanent residence despite being born and raised in Jammu & Kashmir. The former Permanent Resident Certificate holders Neeta and Sona revealed that at the time of their marriage they did not bother to check if the man was a permanent resident of Jammu and Kashmir or not. They merely matched their ‘kundali’ (arrangement of stars at the time of birth) with that of the man’s to see if they were a compatible. Thus, for them the Permanent Resident Certificate was not a contributing factor while choosing their husbands. It is likely that as awareness regarding 35A is spreads, more women (specially those holding Permanent Resident Certificate) will prefer to check the permanent residenct status of the man rather than his ‘kundali’.

 

Q. Are you aware of the Susheela Sawhney Judgment and its implementation?

 

Both the former Permanent Resident Certificate holding women were aware of this landmark judgment that prohibits the state government to take away the Permanent Resident Certificate of women of Jammu and Kashmir upon their marriage to non-residents of the state. In reality this judgment passed by the high court of Jammu and Kashmir has not been enforced as a law made by the Jammu and Kashmir legislature. Despite this judgment, the ground reality is that revenue authorities still issue ‘valid till marriage’ on the Permanent Resident Certificate of women. After this judgment women who lost their Permanent Resident Certificate after marriage can approach the authorities and claim their Permanent Resident Certificate once again. Both Neeta and Sona had not done this. They believe that there is no point in reclaiming their Permanent Resident Certificate if their children cannot inherit the Permanent Resident Certificate or any of the rights and property in the state.

 

Q. Have you considered relocating to another state?

 

The WPR are open to relocating to another state where their rights would not be compromised and the government would take care of their needs. However, they live in abject poverty and do not have the means to relocate and start a new life in a new state. Plus, no state will voluntarily accept the influx of an entire community of 1.5 Lakh people. Some members of the Valmiki Samaj have considered saving up money to buy property in other states so at least their children can settle somewhere else and lead better lives after they finish their education. However, most people, including Neeta and Sona are of the opinion that 35A is an unjust article and should be declared unconstitutional by the Supreme Court. They do not want to leave their homeland; rather they want to fight against this provision. They believe that running away from the state is not the solution to this problem.

4.2 Discussion

 

The noteworthy thing about the 35A provision regarding women losing their Permanent Resident Certificate after marriage to a non-resident is that it transcends all aspects such as religion, caste and socio-economic status. Even women from wealthy and influential families are unable to find a way around this provision. When a non-resident woman marries a man with a Permanent Resident Certificate she gets a Permanent Resident Certificate. An example of the manifestation of this discrimination can be seen in Kashmir’s Abdullah family itself. Farooq Abdullah’s son Omar Abdullah married a girl from Punjab who acquired a Permanent Resident Certificate after their marriage. Omar Abdullah’s own sister Sarah Abdullah lost her Permanent Resident Certificate of Jammu & Kashmir upon her marriage to Sachin Pilot. Similarly, Sunanda Pushkar who was a Kashmiri Pandit with Permanent Resident Certificate lost her Permanent Resident Certificate after her second marriage to Sujith Menon in 1991. Naturally, her son did not inherit the Permanent Resident Certificate. Even after her divorce with Sujith Menon, she did not get to reclaim her Permanent Resident Certificate. Thus, it can be seen that this provision handicaps all women of Jammu & Kashmir irrespective of their religion, family background or socio-economic status.

 

Another striking feature is that the Maharaja’s notification issued in 1927 and the Jammu & Kashmir constitution does not state that on marriage with a non permanent resident, the daughter if a permanent resident shall lose her permanent residency status. All the laws framed by Maharaja Hari Singh and the succeeding government were gender neutral. It was only later that the concept of ‘valid till marriage’ was introduced to the Permanent Resident Certificate without any legal sanction. (Malhotra, 2017)

 

The Susheela Sawhney case had been pending before the Jammu and Kashmir high court since 1979. Finally in 2002 the high court gave a verdict that corrected the administrative anomaly, which restricted the rights of women married outside the state. This decision was considered historic and a sense of justice and fairness prevailed after this judgment. The PDP-led government filed a special leave petition in the Supreme Court against this verdict, which it later repealed. Instead, in an attempt to bypass this judgment, the PDP-led coalition introduced a Disqualification Bill in the state legislature. This bill got full support from the National Conference and was unanimously passed within six minutes. This bill caused a lot of controversy and hence it was not made into a law.

It has been argued time and again by the Kashmiri leadership that a law is necessary to disqualify women who marry outside the state. They believe that restrictions on women’s rights are required to protect the political identity of Kashmir. Allowing women to marry outside the state and still retain their Permanent Resident Certificate is perceived as contradictory to the “autonomy and special status” of Jammu and Kashmir. It is feared that if such a right is given to women, it will ultimately lead to demographic change in the state. If women hold PR status even when they marry outside the state, it would open floodgates for non-permanent residents to swarm into the state and control the property and employment within Jammu and Kashmir. (Chowdhary, 2010) It should be noted here that as per the constitution of India, the state of Jammu and Kashmir does not have a special status. So this concept of special status has been created solely in the minds of people but it has no legal or constitutional backing. In fact on April 11, 2015, the Minister of State in the Ministry of Home Affairs Shri Haribhai Parathibhai Chaudhary explicitly stated in response to the question on special status of Jammu and Kashmir, that as per the Indian Constitution, Jammu and Kashmir does not have a special status. Article 370 provides for temporary provisions. (Government of India) 

 

The dominant political class in the valley of Jammu and Kashmir political class, across party and ideological lines, supported the disqualification of women in 2004 in an attempt to preserve the Kashmiri identity. The parties were so blinded with protecting their ‘Kashmiriyat’ that they did not see anything unusual or wrong with the subjugation of women’s rights to Kashmiri identity. The general catchphrase has been that disqualifying women who choose to marry outsiders does not concern women as much as it concerns the Kashmiri identity being threatened by external forces.

 

In fact, even the discussions in Jammu were pivoting around regional, communal and national identity rather than women’s identity. In Jammu, the bill to disqualify women from holding PR status opposed on the grounds that it was “anti-Jammu”, “anti-national” and “anti-Hindu” rather than being “anti-women”. Their main objection was that it was pro-Kashmir and anti-Jammu. Thus, in this backdrop of competitive identity politics, the fundamental issue of women’s rights was completely sidelined and the state politics was polarized on regional and communal lines. (Chowdhary, 2010)

Even after the Susheela Sawhney judgment, revenue authorities continued to issue the State Subject Certificate of unmarried girls with ‘valid till marriage’ written on them.

A Double Bench, in its interim judgment in the Hari Om vs. State of Jammu and Kashmir (PIL No. 1002/2004 & CMP No. 1089/2004)in 2004 ruled: “In the meantime, respondents (State of Jammu and Kashmir& others) are directed not to make any endorsement of ‘valid till marriage’ on the State Subject Certificate issued to unmarried daughters of State Subjects”.

 

This provisional order was not implemented by the state government, rather it was rejected with disrespect. On 27thJanuary, 2005, the Revenue Department, released a notice asking the authority in charge of issuing the State Subject Certificate to make authorization: “The certificate may be reissued after marriage to indicate if the lady has married a State Subject or non-State Subject”.

 

The petitioner in the Hari Om vs. State of Jammu and Kashmir case, once again approached the High Court seeking contempt proceedings against the Jammu and Kashmir Government. A double Bench took up this matter. On 11thJuly 2005, the Bench issued notice to the Jammu and Kashmir Government. This had its impact on theJammu and Kashmir Government and on 2ndAugust 2005, it withdrew the circular.

 

Thus it is important to note that four times the Jammu and Kashmir High Court gave verdicts meant to ensure equality between men and women. The verdicts were clear-cut and were welcomed by everyone. However, needless slip-up has been created to put into practice the verdict of High Court in Dr Susheela Sawney case and subsequent such verdicts. 12 years after the case the condition seems to the same. (Malhotra, 2017)

 

The researcher witnessed this ground reality in Jammu. The women complained that the government and the revenue authorities have done nothing to alleviate their position even after the High Court explicitly prohibited the use of the term ‘valid till marriage’ on the State Subject Certificates.

 

The next chapter will contain a critical analysis of the findings of the researcher followed by the conclusion to the research. The researcher has provided certain solutions to the issue put forth by Article 35A of the Constitution of India

 

References

Chowdhary, R (2010) “Identity Politics and Regional Polarisation in J&K” Economic & Political WeeklyVol. 45, (pp. 15-20), Retrived from: http://www.jstor.org/stable/27806994

 

Puri, B (2004) “Permanent Resident Bill: Questionable Legal, Moral and Political Basis.” Economic & Political WeeklyVol. 39, (pp. 1456-1457), Retrived from: http://www.jstor.org/stable/4414857

 

 

continue part 5