Supreme Court has finally set aside gender discriminatory triple talaq. This could be a huge stride towards enforcing uniform civil code to achieve the ultimate mission of one India one law. It is a watershed moment for secular democratic India. This is a way forward achieving the preamble of Directive Principles in the Constitution that stipulate, “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”. This being the spirit of this great nation, why should the fundamental rights of Indian citizens be jeopardized by any other laws like the one, in the Constitution under Article 35A?
Article 35A empowers the Jammu and Kashmir State Legislature to define the classes of persons who are, or shall be, permanent residents of the State of Jammu and Kashmir; or conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions as respects-employment under the State Government; acquisition of immovable property in the State; settlement in the State; or right to scholarships and such other forms of aid as the State Government may provide.
This being the constitutional position, it is the State Legislature that alone is competent to determine the classes or persons who are permanent residents of the State. Across the political spectrum this proviso is being interpreted differently. While the proponents of retaining permanent resident law invoke Maharaja Hari Singh, those opposing it claim that repealing Article 35A will lead to national integration. Both schools of thought may be right in their perceptions but viewing the enactment of permanent residents in its historical perspective, it was brought to safeguard the interests of the subjects of the Maharaja, irrespective of caste, creed, colour, region or religion. At that point of time, Jammu and Kashmir was a sovereign State and there were genuine apprehension among its subjects about dominance of non-state subjects, if allowed to settle down anywhere across the State.
Now that the times have changed with Jammu and Kashmir acceding to Indian domain, the Maharaja’s law needed a review post accession. It was perhaps done between 1950 and 1954, which led to presidential order of 1954, giving birth to Article 35A. Soon after voices became louder, especially in Hindu dominated Jammu, about its irrelevance as far as national integration was concerned. However, there were other discrepancies in the proviso, which directly hit women. With the advent of time and people to people exchange between Jammu and Kashmir and rest of the country on a larger scale, the women of State started feeling the pinch of the law, with those of them marrying beyond Lakhanpur losing their residential status and rights over ancestral properties.
Thanks to judicial dispensation, the anomaly was rectified to some extent in famous case of Dr Sushila Sahani. In a remarkable Full Bench decision in this case in 2002, Justices V. Jhanji and T. Doabia (with Justice Muzzaffar Jan dissenting), made it clear that “the daughter of a permanent resident marrying a non-permanent resident will not lose the status of permanent resident in Jammu and Kashmir.” This was a clear signal that Jammu and Kashmir’s laws on permanent residence were gender unjust. After initial hesitation to implement the judgement, the State Government ultimately withdrew a Special Leave Petition (SLP) in the Supreme Court on the observations that necessary amendments in the Act governing issuance of PRCs would be carried out. Prior to that, the PRCs of girls carried the tag, “Valid Till Marriage”.
Now a pertinent question arises about the children of bona-fide state-subject women marrying outside the State. Will they have the same rights as their mothers enjoy in Jammu and Kashmir? If no, then it is discriminatory and unjust on the face of the fact that the children of non-state subject girls marrying state-subject boys enjoy all the rights and privileges. This is perhaps one of the major handicaps that may, in a course of time, snowball into a big issue, as more and more girls from Jammu and Kashmir are marrying outside the State due to their settlement in various parts of the country and abroad in pursuit of careers.
The gender discriminatory nature, apparently being the spirit of permanent residence laws, the voices for abrogation of Article 35A may grow amid the obtaining political controversy erupted in the State, notwithstanding the apex court seized of the matter. Therefore, all eyes are focused on the Supreme Court, which is set to hear arguments and counter-arguments on the efficacy of Article 35A in a larger bench.
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