The transition of the erstwhile State of Jammu and Kashmir from a ‘Special State’ into two Union Territories, namely Jammu & Kashmir and Ladakh, has flipped its legal landscape drastically. Prior to this transition, the State of Jammu and Kashmir possessed considerable autonomy to enact its own laws, except for laws pertaining to Defence, External affairs and Communications. Legislations passed by the State Government were generally in para materia with the central legislations of India. However, the Government of J&K has been reluctant in incorporating the subsequent amendments to these central legislations in its respective State acts. This has led to creation of a ‘legal void’ between the State of J&K and the rest of India. The State of J&K passed its own version of Hindu Succession Act in the year 1956, corresponding to the Centre’s Hindu Succession Act, 1956. However, the 2005 amendment to this Central Act which was celebrated as a huge step towards gender equality never followed in J&K.
Meanwhile in J&K, as opposed to the situation in rest of India, the right of a woman over the property inherited by her was contingent upon her marital status. This was due to the fact that only a Permanent Resident Certificate (“PRC”) holder could own property in J&K and the PRCs issued to female descendants came with a clear stipulation that the same are ‘valid only till marriage’, meaning thereby that a woman loses her permanent resident status, if she marries a non-state subject. This interpretation of ‘Citizen as a masculine noun’ was challenged before the Court, leading to a two decade long legal battle between the Judiciary and the Legislature.
The paper contrasts the final position of law on the aforementioned issue before and after the Reorganisation of J&K. It comprises of four parts. The First part provides the background to this discriminatory clause and the attendant judicial response, analysing its impact on rights of women and adopted children. The Second part critically appraises the landmark judgement rendered in State of Jammu and Kashmir and etc. v. Dr. Susheela Sawhney1, assessing how it changed the status quo. This part also highlights certain issues which remain unanswered in the said Judgement. The Third part emphasizes on the politico-legal factors which threaten the rights of vulnerable section of Hindu minority women residing in Jammu region. The Fourth part offers an analysis of the impact of revocation of special status on the rights of women, arguably the greatest step till date towards women empowerment in the territory. The paper concludes that the revocation of special status has been a welcome step towards women empowerment and ensuring gender equality.
Article 35-A of the Constitution of India2 provides immunity from constitutional scrutiny based on Part III of the Constitution to any law enacted by the State Legislature of J&K for defining the classes of persons who are/shall be the ‘Permanent Resident’ of J&K and conferring on them rights and privileges or imposing restrictions on non-permanent residents. Section 6 of the Constitution of J&K3 defines the term Permanent Resident. On perusal of the section, it can be ascertained that being a citizen of India is a pre-requisite for being a permanent resident of the State of J&K. Broadly two categories of people fall within the purview of permanent residents of J&K; firstly, State Subjects of Class I and Class II and secondly, persons who have lawfully acquired immovable property and have been residing in J&K prior to May, 1954. Section 6 (3) of the Constitution of J&K states that the expression “State Subjects of Class I and Class II” has to be read in light of State Notifications No. I-L/844 and No. 13-L/19895. Prior to the adoption of the Constitution of J&K, citizenship law for the State was stated under these two notifications. Citizens of J&K were referred to as ‘State Subjects’. When Part II of the Indian Constitution pertaining to citizenship was made applicable to J&K via Constitution (Application to Jammu and Kashmir) Order, 19546, the term “State Subject” was substituted by the term “Permanent resident” so as to avoid duality of citizenship while simultaneously enabling residents of J&K to have special rights.7
Controversy regarding property, educational, political and legal rights of women in the state stems from Note-II & Note III of State Notifications No. I-L/84. The former states that ‘descendants’ of a permanent resident shall ispo facto became a permanent resident of the same class and the later states that a wife/widow of a permanent resident shall ‘acquire’ and retain the status of a permanent resident of the same class as her husband, for the period she resides in J&K and does not leave for permanent residence outside the state. This particular note was given the interpretation by the State Government that if a female permanent resident marries a non-permanent male resident, she will lose her status of permanent resident as a consequence to which she can no longer acquire immovable property, get scholarship, lose employment in state, et.al.
First judicial response to this legislative interpretation came in Prakash v. Mst. Shahni and Ors8 (Mst. Shahni case). This case pertained to a second appeal in a matter, where property rights of Mst. Shahni, daughter of a permanent resident of J&K, were disputed on the ground that she lost her status as a permanent resident and acquired domicile of her husband, when she married Mr. Pohu Ram, a resident of Tehsil Sialkot.9 In order to settle this issue, the Court relied on principles of both Constitutional as well as Private International Law.
A. Judicial Interpretation
Relying on Basu’s Commentary on Constitution of India10, the Court observed that domicile can be acquired by three ways, namely by birth, by choice and by operation of law. The concerned issue relates to the third category in which it is a settled principle of law that domicile of women follows that of her husband.11
This judgement has been seen as promoting the patriarchal mindset inherit in the society. Where upon perusal of constitutional principles, the Court was supposed to highlight the importance of ensuring social, economic and political equality to women, the judgment seemed to portray that wives are a property of husband.
B. Private International Law-- Paving way to Women Servitude
Relying on a plethora of foreign and Indian judgements such as R.E. Attaullah v. J. Attaullah12, Harvey v. Farnie13, Lord Advocate v. Jaffrey14 etcetera, and the British Nationality and Status of Aliens Act, 191415, the Court observed that a woman acquires the domicile of her husband and retains it even after his death or in cases where he abandons her.
In Formosa v. Formosa16, this rule was heavily criticized and subsequently abolished by Domicile and Matrimonial Proceedings Act, 197317. Findings of the Court that women acquire the domicile of her husband and retain the same even after his death, conveyed the impression that even the judicial minds of India could not sense the gender discrimination inherent in law. Instead, the Court should have referred to constitutional values in Indian Law and set a precedent rather than relying upon a prejudicial rule of private international law.
C. Restrictive approach to Note-II
Respondent’s argument that she would be a permanent resident by virtue of Note-II of the State Notifications was refuted by the Court on the ground that restrictive language of this Note and various other Irshads issued by his Highness from time to time portray that the purpose of granting permanent residentship is to refrain those persons who have not lived in the State from settling here. However, the Court failed to acknowledge that the concept of permanent residentship is independent of the notion of domicile. The same can be ascertained from a perusal of the State Notification, wherein there is no sanction on a male resident for leaving the state of J&K and settling somewhere else.
In furtherance of the ratio laid down in this case, the Revenue Department of the State started issuing Permanent Resident Certificates (PRCs) for daughters of permanent residents with a stipulation that these are only “Valid till Marriage”, however no such condition was mentioned on certificates issued to male descendants.
D. Rights of a child adopted by a Hindu family
In Vijay Manchanda and Anr. v. State of J&K and Ors.18 (“Vijay Manchanda case”), a single judge bench decided on the matter that whether valid adoption of a non-permanent resident by a permanent resident confers upon him/her the status of permanent residentship. Analysing the jurisprudence of classical Hindu Law and the J&K Hindu Adoption and Maintenance Act, 196019, Justice Sethi pointed out that adoption leads to ‘Civil Death’ of the adopted person in his natural family and he is grafted in the adoptive family for the purpose of ‘inheritance’ and ‘religious ceremonies’.20 Court held that if an adoption is a valid adoption under the aforementioned Act or permissible under certain customs of Mohammadan Law, then the adopted individual will be entitled to permanent residentship of the State, provided that it was not a mala fide act of obtaining benefits from the grant of residentship. However, on an appeal before the Divisional Bench, the aforementioned order was set aside on the grounds that Section 6 of the Constitution read along with the State Notifications does not mandate adoption as a valid ground for conferment of permanent resident status.21
This judgement sadly overlooked the importance of the institution of adoption in a secular state.22 Adoption is considered to be a valid means of carrying forward the lineage as per the classical Hindu law. The guidelines for adoption are so stringent that only a small population can meet the requirements.23 In such a scenario, the argument of the State Government that it would lead to dilution of residentship norms is utterly superfluous. As argued by some authors, this standpoint of the Court has the propensity of communal divide between Jammu and Srinagar,24 as maximum vote share from Kashmir valley comes from Muslims25 and thus the provision of granting residentship by adoption is revoked as it is least likely to be used by a person subject to Mohammedan Law.
The prima facie discriminatory stipulation of ‘Valid till Marriage’ on PRCs led to a series of conflicting decisions rendered by the High Court of J&K. In order to settle the proposition of law on this point reference was made to the full Judge Bench of the High Court. The bench was to determine whether the daughter of a permanent resident loses her status of permanent resident to hold, ‘inherit’ and ‘acquire’ immovable property in the State upon marrying a non-permanent resident.
Eleven petitions were taken into consideration by this Bench, amongst which three pertained to loss of employment26, three pertained to loss of educational opportunities27, four challenged constitutional validity of the stipulation of ‘valid till marriage’28 and one pertained to succession and inheritance rights of a Hindu female, namely Harjeet Singh v. Amarjeet Kour.29 The dispute in Harjeet Singh v. Amarjeet Kour30 arose from Mrs. Amarjeet Kour claiming a share her intestate father’s property in accordance with the J&K Hindu Succession Act, 195631, which was denied to her by her brothers on the ground that she is married to a non-state subject and hence, incapable of inheriting property. The Court of Sub-Judge rendered the judgement in her favor. These eleven petitions were clubbed and adjudged by the full Bench of J&K High Court in State of Jammu and Kashmir and etc. v. Dr. Susheela Sawhney32 (“Susheela Sawhney case”).
A. Majority Judgement
The majority opinion was given by Justice Vijay Kumar Jhanji and Justice Tejinder Singh Doabia, both of whom authored the judgement. The Court observed that the expression “descendant” under Note-II is a gender-neutral term, meaning thereby that it includes both sons and daughters of permanent residents.33 The Court analysed the meaning of the expression “acquire” under Note-III and held that something is acquired if it is not already possessed. It was laid down that daughters of permanent residents, who acquire status of residentship on ‘birth’ by virtue of operation of law, will retain the same as long as they are a citizen of India.34 The Bench overruled the judgement rendered in Mst. Shahni case relying on the change in British law on this subject35 and emphasized on the Convention on the Nationality of Married Women36 to portray the change in attitude of International law towards rights of women.
With regard to issue of inheritance and succession, the Court relied upon the judgement rendered in Syed Hakim Ali Shah v. Nawab Bibi37. In this case, the widow of an intestate gave away the property in her possession to her daughter by way of gift, which challenged by the sons’ of the brother of the intestate on the ground that her daughter lost right to acquire immovable property in the state when she married a non-state subject. The Court in this judgement held that being a legal heir of her father, she was entitled to such property as a matter on inheritance right under her personal law even if the Gift itself is declared invalid.
Relying on this Judgement, Court observed that ‘inheritance’ is not equivalent to ‘transfer’. A property is inherited by operation of law and is independent of the status of a person. Reliance was laid on the Sri Pratap J and K Laws (Consolidation) Act, 197738 which explicitly states that in cases of inheritance, succession, wills, gifts, partitions etcetera either Mohammedan law or the Hindu law would be applicable, depending upon the religion of the parties. It was highlighted that neither the Mohammedan law nor the J&K Hindu Succession Act, 1956 recognize citizenship or residency as ground for inheritance. However, the only limitation on a permanent resident inheriting property is that they cannot sell it to anybody other than a state subject. The Court refrained from making any remarks upon judgement rendered in Vijay Manchanda case stating that the same was pending before a larger bench.
However, a significant number of issues were left unanswered in the judgement such as the validity of PRCs issued before this judgement, inheritance rights and status of children born from a wedlock of permanent resident mother and non-permanent resident father and the right of women over property in cases of divorce.
Court observed that the provisions of State Notification are enabling in nature and the act of acquiring is itself a positive act and should not be given a negative connotation. In regard to Note-III, the Court relied on the case of Starey v. Graham39 and Udhav Shankar Gangawane v. Tarabai40 to highlight that acquiring means getting a right for the first time whereas in the present controversy the female descendants already possess such right by virtue of inheritance and therefore, Note-III does not apply to them. However, the Court refrained from scrutinizing the said provision on grounds of violation of Article 14 of the Constitution of India stating that it is immune from constitutional scrutiny because of Article 35-A of the Constitution of India.
B. Separate Judgement
Justice Muzaffar Jan gave a partially dissenting opinion in this matter. He proceeded with the assumption that upon marriage, a permanent resident woman assumes the status of her non-permanent resident husband. In regard to challenge to PRCs on ground of violation of Basic Structure of the Indian Constitution, Court observed that the provision for permanent residentship was a part of the Constitution of J&K from its inception, therefore does not amount to an amendment and hence, cannot be challenged for violation of Basic Structure.
In regard to the issue of inheritance, Court observed that three situations can arise, first that the daughter was already in possession of immovable property prior to her marriage, second that the she might inherit property after her marriage and third that upon her death, who will be entitled to her property. Distinguishing inheritance from acquisition, the learned judge opined that in both the first and second situation, the woman would be entitled to inherit property, however she would be restricted from granting it to a non-permanent resident. The learned judge highlighted a very pertinent issue with regard to the third situation. Under religious personal laws, the property of a female devolves primarily upon her husband and children. If such a pattern is followed, then the question arises that whether the children of the deceased daughter upon receipt of such property be entitled to status of permanent resident owing to the fact that Section 6 of J&K Constitution mentions possessing immovable property in state as a premise for residentship. This will lead to a conflict of laws as children are to acquire the status of father as per the current position of law.
It can be argued in light of principle Quando aliquid prohibetur ex directo, prohibetur et per obliquum41, that status of a permanent resident should not be conferred on the widower, otherwise it would have defeated the purpose of residentship law as he can leave the state & remarry somewhere else conferring upon his descendants and wife permanent resident status.
A. Political Upheaval
In response to the verdict given in Susheela Sawhney case, a special petition was filed by the State Government before the Supreme Court, however the same was withdrawn apprehending a judgement against it. Instead, the Government preferred to override the judgement of the Full Bench of the J&K High Court by introducing the Jammu and Kashmir Permanent Resident (Disqualification) Bill, 2004 which explicitly provided that “a female permanent resident shall cease to be so on her marriage to a person who is not a permanent resident”42. This Bill was given a retrospective effect from the date of judgement. Government justified the Bill under the garb of securing ethnic identity & autonomy. The Bill was passed unanimously by the Legislative Assembly, however failed to secure majority in the Upper House. A re-attempt at passing this Bill was made in the year 2010 but it met the same fate.43
These attempts showcase the bigger issue of inefficiency of ‘Weak-Form System’ of Courts in India, where courts can assess legislation for compliance with constitutional norms, but their decisions can be overridden by ordinary legislative majorities.44
It can be analysed from the actions of the Government that the major issue of concern here is not merely gender discrimination but that of ‘intersectionality’. This argument is based on the premise that the section of women which become most vulnerable to such a law are the Hindu women residing in Jammu region. Stance of Government before and after the Susheela Sawhney case portrays elements of regionalism and communalism. Regional bias can be identified from the fact that the practice of marrying outsiders was comparatively higher among the Hindu residents of Jammu region as opposed to their Srinagar counterparts45, whereas communal bias is evident from the fact that J&K was a Muslim majority and the elected Government was more accountable towards the larger voting section. Same can be inferred from the fact that among the eleven petitions filed, eight were filed by the residents of Jammu. Further, among all the petitioners, only two complainants were filed by Muslim women.46 It is painful to see that instead of showing a united front against this discriminatory Bill, there was a difference in stance taken by women of Jammu and those of Kashmir.
C. Legality of the Bill
State Government argued that this Bill is immune from constitutional scrutiny by virtue of non-obstinate clause in Article 35-A of Indian Constitution. However, on a perusal of Article 35-A, it can be ascertained that clause (b) of the said Article is an enabling provision which provides for conferring of special rights on permanent residents and restrictions on non-permanent residents. Daughters of a permanent resident are vested with permanent residentship by birth.47 Therefore, a Bill which intends to extinguish special rights of permanent residents is itself in violation of Article 35-A.48
By virtue of Section 10 of the Constitution of J&K, permanent residents of J&K are entitled to fundamental rights enshrined in the Indian Constitution. In light of this fact, the Bill can be challenged on grounds of violation of Article 14, 15, 16 and 19 of the Indian Constitution. The Bill does not stand the test of reasonable classification49 under Article 14 as it unreasonably discriminates those women who marry outside state from those who don’t. The discrimination on basis of gender makes it violative of Article 15 whereas the restrain on equal opportunity of employment makes it violative of Article 16. It is also in contravention with Article 19 which provides for right of citizens to reside and settle in any part of the country. The Bill is also inconsistent with the Preamble and Directive Principle of State Policy50 of J&K Constitution which provide for ‘full equality’ to residents in social, political and legal matters. The Bill is also not in harmony with Sri Pratap J&K Laws (Consolidation) Act, 1977.
D. Government Attitude vis-a vis High Court Verdict
Even for the period these Bills were in consideration, the Government did not abide by the decision of High Court, rather kept on issuing PRCs with ‘valid till marriage’ stipulation. The same was challenged before the Court in Hari Om v. State of J&K51 and an interim order was passed by the Court directing Respondent to refrain from such practices. Instead of abiding by this order, the Revenue Department issued a circular stating that, “the circular may be reissued after marriage to indicate if the lady married a State Subject or a non-State Subject”52. This led to filling of a contempt petition, titled Dr. Hari Om v. Dr. S.S. Bleoria53 as a result of which the Government withdrew its circular before the High Court could pronounce its judgement.54 These events showcase that the Government had no intention of backing down and would have made every attempt in future to pass such a legislation.
E. The Hindu Succession (Amendment) Act, 2005
To further amply the misery of Hindu women of Jammu Region, the Government refrained from enacting the 2005 Amendment to the Hindu Succession Act, 1956 in the State. This amendment, inter alia¸ granted the daughter of a joint Hindu family an equivalent status to that of sons by vesting in them coparcenary rights by birth55, omitted the clause which prohibited certain categories of widows to inherit from an intestate of her deceased husband’s family in case she remarries56, granted them right to seek partition57 etcetera. However, the residents of J&K remained being governed by the 1956 Act.
In June 2016, a Special Committee was constituted58 to consider the issues which remained unanswered in Susheela Sawhney case, however before the committee could submit its report, special status under Article 370 of the Indian Constitution was revoked and the Constitution (Application to Jammu & Kashmir) Order, 1954 was superseded by the Constitution (Application to Jammu & Kashmir) Order, 2019 under which all the provisions of the Constitution, as amended from time to time, were applied in relation to the State of Jammu & Kashmir, thereby rendering Article 35-A inoperative.59 Following this the State of J&K saw a transition from a ‘special state’ into two union territories namely, Union Territory of Ladakh and Union Territory of J&K.60 Revocation of Article 370 of Indian Constitution impacted the rights of Hindu women at three levels.
This paper has argued that the Hindu women residents of Jammu region as opposed to their male counterparts and the Muslim women of Kashmir Region, were the most disadvantaged section of society in J&K. They were subjected to the highest level of discrimination by political masters and sometimes, even by the Judiciary. Whereas on one hand, revocation of Article 370 takes away the ‘special status’ of J&K, on the other hand it rescues such women from their ‘deprived status’. It settles the position of law with respect to anomalies in Susheela Sawhney case, and places the Hindu women of J&K at an equal pedestal with that of other Indian women. However, the divide among women of Jammu, and Kashmir region still persists which is evident from their mixed response to this revocation.65 Ensuring gender equality requires more than revocation of a single provision, especially when patriarchy is inherent in the entire legal system. It is hoped that in future, women of both these regions will present a united front against any and every kind of gender-based injustice.