After Triple Talaq, Time For The Anti-Women Article 35-A To Go

by Hari Om Mahajan - Aug 24, 2017 06:31 PM +05:30 IST
After Triple Talaq, Time For The Anti-Women Article 35-A To GoKashmiri women (TAUSEEF MUSTAFA/AFP/Getty Images)
  • There is hope among the daughters of Jammu and Kashmir that Article 35-A of the Indian Constitution, which makes unjust distinctions between the sons and daughters of the state, will also be scrapped by the apex court.

The Supreme Court’s landmark verdict, of 22 August, that declared “unconstitutional, arbitrary and whimsical” the 1400-year-old controversial Islamic practice of instant talaq has dramatically changed the socio-political scene of Jammu and Kashmir. It has filled the hearts of daughters of the state with hope.

Like in the rest of the country, the women in the state have, irrespective of their religious denomination and regional compulsions, welcomed the verdict.

The judgement has rekindled the hope that Article 35-A of the Indian Constitution, which makes humiliating, invidious and unjust distinctions between the sons and daughters of Jammu and Kashmir, will also be scrapped by the apex court.

The new hope has stemmed not only from the fact that the operative part of the verdict, delivered by a 3:2 majority, clearly said the “practice of triple talaq was violative of Article 14 of the Indian Constitution (equality and non-discrimination)”; it also stems from the fact that three judges didn’t endorse the view of Justice S Abdul Nazeer that triple talaq had “got protection under Article 25 of the Constitution”. They were of the view that Article 25 could not be applied in this case as it involved the cardinal principle of equality and non-discrimination.

And then there was Prime Minister Narendra Modi’s Independence Day address from the ramparts of the Red Fort in which he said his government was committed to women empowerment and gender equality. This precisely was the stand of the Government of India in the apex court.

The women of Jammu and Kashmir also have renewed belief now because of the stand taken by the Government of India on the crucial public interest litigation on Article 35-A. The Government of India, unlike the Jammu and Kashmir government, has not filed any affidavit in the Supreme Court. Contrarily, it has twice told the apex court that Article 35-A was a “sensitive” issue which needed a “wider debate”.

“It is a ‘very sensitive matter’ which would require a ‘larger’ debate. There are Constitutional issues involved in it and it should be heard by a larger bench,” Attorney General K K Venugopal twice told the Supreme Court. On the other hand, the Jammu and Kashmir government took the stand that “Article 35-A is a settled issue” and “it is a permanent Article”.

However, it was the stand of the union government that prompted the Chief Justice of India to suggest that the whole case could be transferred from the existing three-judge bench to five-judge Constitutional bench for its disposal. The case is listed for hearing on 29 August.

So, the hope of the daughters of Jammu and Kashmir is as justifiable as it is tenable. After all, the case of the women in the state, including Charu Wali Khanna and Dr Seema Razdan, and the non-governmental organisation “We The Citizens”, who have approached the Supreme Court to obtain justice, is almost identical to the case which the oppressed and discriminated Muslim women fought relentlessly in the highest court of justice of the country for years, and finally received justice.

Article 35-A gives absolute power to the Jammu and Kashmir government to define the classes of persons who are, or shall be, permanent residents of the state, or confer on such permanent residents any special rights and privileges or impose upon persons any restrictions in matters relating to employment under the state government, acquisition of immovable property in the state, scholarships and to such other forms of aid as the state government may provide.

In effect, Article 35-A considers all Indians, barring the permanent residents of the state, as persona non-grata in Jammu and Kashmir and deprives the children of the daughters of the state, married outside to non-permanent residents of Jammu and Kashmir, of any right available under the Jammu & Kashmir Constitution of 1957. This Article was applied to Jammu and Kashmir on 14 May 1954 through a Presidential Order without invoking Article 368 of the Indian Constitution. Article 368 says not a word can be deleted from or added to the Constitution without taking the Parliament into confidence. Significantly, Article 35-A is not part of the main body of the Constitution. It finds mention only in an appendix.

It needs to be noted that not one but three petitions challenging the validity of Article 35-A have been filed in the Supreme Court. These include writ petitions 722/2014, 871/2015 and 396/2017. “We the Citizens”, refugees from West Pakistan (all Hindu and Sikh) and Charu Wali Khanna and Dr Seema Razdan, respectively, filed these three petitions.

All the petitioners want the Supreme Court to declare Article 35-A as unconstitutional, discriminatory and against the very spirit of Article 14 of the Indian Constitution. Charu Wali Khanna and Dr Seema Razdan have, in addition, said in their petition that their children are considered “illegitimate”, as they got married to non-permanent residents of the state. As for the refugees from West Pakistan, they have said in their petition that they have been living in various parts of Jammu since their migration in 1947, but they have no right to property, no right to vote, no right to higher and technical and professional education, no right to a government job and no right to a bank loan in Jammu and Kashmir because they do not possess permanent resident certificates. They are Indian nationals, but not residents of the state.

In the meantime, the Jammu and Kashmir government, the opposition parties, including the National Conference and the Congress, and separatists of all hues are busy working out strategies to defend and protect Article 35-A.

Law Secretary to the Jammu and Kashmir government, Abdul Majid Bhat, has said that Article 35-A shall be defended to the hilt. “We will engage the best constitutional experts of the country to defend the case. We will defend our case in the best way,” he said on 23 August, as reported in Tribune today. “We don’t get time to sleep. We are involved in research, contacting legal experts, taking down their opinions and many more things,” another law official has said.

The main opposition National Conference and the Congress have unleashed a relentless campaign to muster support to save Article 35-A. National Conference working president and Leader of the Opposition in the Legislative Assembly Omar Abdullah has been trying to create an impression in Kashmir that petition challenging Article 35-A is an attempt by “the RSS to punish Kashmir for being Muslim-majority” and his father and former chief minister Farooq Abdullah has warned that “Kashmir will rise in far more explosive revolt than in the 2008 Amarnath land row”. He has also urged the people of all the three regions of the state – Jammu, Kashmir and Ladakh – to work together to protect Article 35-A.

“We all, whether from Jammu, Ladakh or Kashmir, should together fight this attempt to abrogate Article 35-A,” he told reporters in Srinagar after a meeting with a civil society delegation. He also expressed hope that “separatists in the Valley would also support the mainstream parties and the civil society in the fight”.

The Congress too has intensified its save-Article 35-A campaign. The JKPCC chief Ghulam Ahmad Mir has said that “withdrawal of Article 35-A will bring change in the demography of the Jammu & Kashmir State and it must be protected”.

The Congress, the National Conference and the Communist Party of India (Marxist) have, in fact, formed a joint front under the leadership of Farooq Abdullah to protect Article 35-A.

As for separatists like Syed Ali Shah Geelani, Mirwaiz Umar Farooq and Yasin Malik, they have said that “Article 35-A is a matter of life and death”. On 23 August, they also issued a protest calendar. Their protest demonstrations would start on 25 August and conclude on 29 August with a shutdown across Kashmir.

This is the whole situation. Article 35-A is a litmus test both for the Prime Minister and the Supreme Court. Litmus test for the Prime Minister because on 15 August he pledged unstinted support to the issue of women empowerment and equality. And litmus test for the Supreme Court because on 22 August it preferred Article 14 over Article 25. Article 35-A is unconstitutional and it has to go lock, stock and barrel.

Even otherwise, it has to go because there can’t be two laws in India, one for Jammu and Kashmir and another for the rest of the country.

Hari Om Mahajan is former Dean, Faculty of Social Sciences, University of Jammu.
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