Article 35-A - an anti-woman Article in Constitution of India

On Women’s day – J&K women demand Azadi

Article 35-A - an anti-woman Article in Constitution of India

Women in Jammu & Kashmir have been suffering from great injustice since last 6 decades due to an article inserted insidiously into constitution in 1954. They have been denied fundamental rights available to all other women in India and men in J&K. This article tries to put record straight and asks people in power to undo this injustice to women of J&K. What better day than Women’s Day?

On May 14, 1954, the President of India issued an order called the Constitution (Application to Jammu and Kashmir) Order 1954. It came into effect immediately and superseded the Constitution (Application to Jammu and Kashmir) Order 1950. Besides carrying out many modifications and changes, this presidential order ‘added’ a new “Article 35A” after Article 35 to the Constitution of India.

Addition or deletion of an Article amounts to an amendment to the Constitution. And the Constitution can be amended only by the Parliament as per procedure clearly laid out in Article 368.But Article 35A was never presented before the Parliament of India. President bypassed the due process.

It may be noted that Article 370 does not state anywhere that it confers on the President executive powers so vast that he can amend the Constitution. It also does not state that the President can bypass Parliament, invoke executive powers so vast and devastating that neither the Lok Sabha nor the Rajya Sabha can do anything about the amendment being carried out.

Strangely enough, this ‘amendment’ to the Constitution has been concealed from general audit by not mentioning the same in the text of editions of the main Constitution. Most constitutional experts are completely unaware of this Article 35A and its implications.

Try locating Article 35A similarly in the Constitution. One would expect to find this Article between Article 35 and Article 36, right? NO! Article 35A does not appear between Article 35 and Article 36.  Interestingly, Article 35A appears in the Constitution as an appendix.

The constituent power to amend the Constitution of India – by way of addition, variation or repeal of any provisions –belongs only to the Parliament under the umbrella of Article 368. This power is an essential constituent function which cannot be effaced or abdicated or handed down to any other agency of the Government, not even the President of India.

• Article 35A is a violation of the basic structure of our Constitution. It curbs certain basic rights enshrined in the very Preamble of the Constitution.
• As a result of the implementation of Article 35A, lakhs of Indian citizens have been deprived of “JUSTICE, social, economic and political” and “EQUALITY of status and of opportunity”. It has also failed to “promote FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation”

Crux of Article 35A -

Ø  This Article denies certain basic rights to many communities living within Jammu-Kashmir for the past six decades.

Ø  It has also taken away the rights of all Indians living outside Jammu-Kashmir from settling in the state of Jammu-Kashmir, an integral part of India.

Ø  Article 35(A) enables the State Assembly to define ‘permanent residents’ and to give them special rights and privileges, as well as to restrict the rights and privileges of all citizens of India who do not fit into this definition of ‘permanent resident’.

Ø  As a consequence, no one except those defined as ‘permanent residents’ are entitled to property rights; employment in state government; participation in Panchayat, municipalities and legislative assembly elections; admission to government-run technical education institutions; scholarships and other social benefits.

Effect of Article 35A on Women of J&K

Constitution of India guarantees gender equality across the country. Unfortunately, for women of Jammu-Kashmir state, it does not work out. Women of Jammu and Kashmir do not enjoy the same rights as men due to this article. Laws prevalent in the state of J&K clearly violate the principle of gender equality. The state government treats women differently from men and has so far managed to get away with it.

Women of the State of Jammu and Kashmir continue to be victims of severe gender discriminations 68 years after independence.

In case daughters of Jammu and Kashmir  marry a person out of the State, her husband and even children get robbed of their residentship rights!

  Education: They won’t be able to take admissions in educational institutions for Higher studies

  Property: They can’t inherit property of their mother or buy property in the State

  Jobs: They can’t be employed in the State government

  Vote: They can’t vote in Assembly and local body elections

The same however does not apply if your brothers and sons marry a person from out of the State – his wife and children automatically acquire all rights. It is a sheer case of discrimination on the basis of sex.

This gender discrimination in J&K can best be illustrated by quoting the example of one family alone - the Abdullah family itself. Sheikh Mohammed Abdullah’s son, Dr Farooq Abdullah, married a Christian British citizen, Mollie, who became a naturalized citizen of Jammu-Kashmir by marrying a male citizen (Farooq). She got all the rights of a permanent resident though she was a British citizen. Her children also got all the rights in J&K.

Farooq’s son Omar married an outsider, Payal, a Hindu, and she became a naturalized permanent resident by marrying a male citizen of J&K. Payal and Omar’s children enjoy all the rights of permanent resident status in J&K.

Farooq and Mollie’s daughter Sara Abdullah, on the other hand, married Sachin Pilot, then UPA minister. After marriage, Sara’s rights in J&K got severely curtailed. Her husband Sachin and children are not eligible for PRC and its connected ‘privileges’. Sara’s children have no right over any property she might own in the state of J&K.

Sunanda Pushkar’s experience is another case in point. Sunanda’s first husband was from Kerala. After Sunanda got widowed, she sought to get back the ‘permanent resident’ status but was refused. Even after the above mentioned judgment, she found her son still had no right to inherit or buy property in J&K. After her marriage to then cabinet minister Shashi Tharoor, Sunanda once shared her experiences in an interview with Barkha Dutt on NDTV.

How J&K is promoting patriarchy and discrimination - If a woman owns immovable property in J&K, she is prevented from legally transferring it to her children; and in event of her death the property will be given to her parental relations or escheated to the state as neither the NPR husband nor her children will be eligible to own the property. A situation more grave  where a female permanent resident married to a NPR has to return to reside in the State of J&K for the reasons of  divorce, widowhood; or for any other reason, in which case despite her continuing to have PR status her offsprings will be deprived, giving rise to grave injustice.

Gender bias in education- Children of female resident of the state who is married to NPR , her children are not be able to get admissions in any professional and technical education in Jammu Kashmir. They can’t even get state education scholarships. It is most shocking when right to education is declared as fundamental right in our constitution.

Gender bias in employment-  If children of the women of the State married to NPR  desire to get employment in J& K they are prohibited by Art. 127 of the State Constitution (employment in J&K govt. institutions) which restricts right to employment only to PR, but they who have the double advantage of having right to employment in other states of India.

Gender bias in Jammu Kashmir  in political empowerment - Many educated women have chosen to return to their roots/village for the upliftment of their biradari sisters. Rural women of J&K have been illegally deprived of this benefit and further there is a denial of minority status in the State, to the Gurjar community which constitute more than 20% of total population of the state, thereby depriving Gujar women of political voice. Compare this to women like Chhavi Rajawat, with an excellent academic background including a management degree, is the sarpanch of Soda village, Rajasthan. With The 73rd Constitutional Amendment Acts passed in 1992 by Parliament ensures one-third of the total seats for women in all elected offices in local bodies whether in rural areas or urban areas. Apart from one-third reservation of women in Panchayati Raj Institutions (PRIs), the act has given constitutional powers and responsibilities for a range of issues including resource management, family planning, education and health. Reservation of women has led to political inclusion of women and the emergence of new women’s leadership. But, women of J&K have no such constitutional rights.

Acknowledgements: References from Jammu Kashmir Study Centre, New Delhi. Their website www.jammukashmirnow.org

Ratan Sharda

8^th March 2016