Article 35-A: Constitutional Injustice To Women

Constitutional provisions that were intended to grant special autonomy to Jammu and Kashmir, had the opposite effect on its women. The paradox was hard to miss. Justified on the ground of protecting regional autonomy, these provisions robbed women of their freedom to make fundamental life choices, in particular the choice of a life partner.

Patriarchy has been pervasive in societies across India and the subcontinent as a whole. The girl child istreated as paraya dhan in her parental home, almost like a parcel awaiting dispatch to an unknown destination. She is raised and nurtured, only to be “given away” in marriage to another family. In the process, she loses her birth identity which is assumed to coalesce with that of her spouse. While the sexism inherent in social norms are by no means peculiar to Jammu and Kashmir, they acquired a legal and constitutional imprimatur in the garb of Article 35-A.

The shield of Article 35-A facilitated practices blatantly discriminatory to women. If a man married a woman from outside Jammu and Kashmir, his wife became entitled to a permanent resident card (PRC) and all its privileges. This applied regardless of whether she was from another Indian state or a foreign country. Their children too, would receive permanent resident cards. On the other hand, if a woman married a man from outside Jammu and Kashmir or a non-permanent resident, she would lose all permanent resident rights, including property ownership, job access, education, and voting. There was no question then of her children and husband being eligible for state entitlements. A Kashmiri born woman was disabled from inheriting parental property regardless of whether she was the only child of her parents.

“Valid till Marriage” was how blatantly discriminatory a permanent resident card issued to a woman read. The validity of the resident card automatically lapsed upon marriage to a non-permanent resident card holder. That the State could preside over, and issue such certificates, effectively controlling a woman’s identity, status and prospects, including her right to a livelihood on the basis of her marital status, showed how a woman’s choices were being weaponised against her.

Some relief from this position came with the ruling in State of Jammu and Kashmir v. Dr. Susheela Sawhney^[1] by a full bench of the High Court of Jammu and Kashmir. In that case, the State asserted that women lose their permanent resident status upon marrying non-residents. In support of its position, the State cited Note III of Notification dated the 20th April, 1927 No. 1-L/84 which read:

Note-III: The wife or a widow of a State Subject of any class shall acquire the status of her husband as State Subject of the same class as her husband, so long as she resides in the State and does not leave the State for permanent residence outside the State.

The High Court read down the provision by holding that it did not apply to a female state subject who already enjoyed permanent resident status by virtue of her birth and inheritance. Such a female subject does not “acquire” any new status as permanent resident merely upon marriage to a permanent resident of the State, as “acquiring” a status means to gain something that one never had in the first place. The Court held that the provision applied, not to females who were permanent residents, but to females who were non- permanent residents of the State, married to permanent residents, thus “acquiring” the latter’s status. This judgment corrected the erroneous administrative interpretation based on an earlier 1965 judgment^[2]. The Court did not however, extend the protection to the inheritance rights of children born to such women. In the absence of legislative action, the risk of arbitrary denial lingered. It was a judicial intervention, not a structural fix.

The gender discrimination, facilitated by Article 35-A, was an egregious violation of Article 14 of the Constitution of India that promises equality for all. It was also in violation Article 15 which prohibits discrimination on the basis of sex. The effacement of status and in the process, the severance of identity and ties to the birthplace was a grave affront to the dignity and liberty of women and their right to self- determination embedded in the right to life and liberty under Article 21 of the Constitution of India. For nearly seven decades these basic rights were withheld from Kashmiri women, making them unequal citizens in the land of their birth.

It is a matter of cruel irony that while a woman is often compelled to surrender her identity as a consequence of marriage, and in the process the advantages if any of her birth, she is unable to shed any burdens or stigmas attached to her premarital status. Notwithstanding her marriage to an upper-caste man, a woman born into a Dalit family continues to bear the weight of the social inequalities attached to her birth. In Rajendra Shrivastava v State of Maharashtra^[3], the Court recognised the albatross of continued discrimination which haunts a woman through her life, unmitigated by her marital status:

12.When a woman born in a scheduled caste or a scheduled tribe marries to a person belonging to a forward caste, her caste by birth does not change by virtue of the marriage. A person born as a member of scheduled caste or a scheduled tribe has to suffer from disadvantages, disabilities and indignities only by virtue of belonging to the particular caste which he or she acquires involuntarily on birth. The suffering of such a person by virtue of caste is not wiped out by a marriage with the person belonging to a forward caste. The label attached to a person born into a scheduled caste or a scheduled tribe continues notwithstanding the marriage. No material has been placed before us by the applicant so as to point out that the caste of a person can be changed either by custom, usage, religious sanction or provision of law.

The paradox lies in the fact that the rights and advantages inherited at birth, for example the rights attached to being a permanent resident of Jammu and Kashmir stand effaced in a single stroke only by virtue of a marital choice to an outsider. She may lose a job in the process and future prospects for her children.

In recent years, the Supreme Court has asserted the right of women to equal status and autonomy in myriad facets of life choices. In Joseph Shine v. Union of India^[4], the Supreme Court struck down Section 497 of the Indian Penal Code, an archaic provision which criminalised adultery. One of the grounds on which the section was struck down as unconstitutional was that it was premised on the notion of women being “chattel” and “the property of man and totally subservient to the will of the master”. The Court held that, “The object of adultery laws was not to protect the bodily integrity of a woman, but to allow her husband to exercise control over her sexuality, in order to ensure the purity of his own bloodline.”^[5]. The Court went on to assert a woman’s right to an identity independent of her spouse:

The identity of the woman must be as an “individual in her own right”. In that sense, her identity does not get submerged as a result of her marriage. Section 497 lays down the norm that the identity of a married woman is but as the wife of her spouse. Underlying the norm is a notion of control over and subjugation of the woman. Such notions cannot withstand scrutiny under a liberal Constitution.^[6]

The Supreme Court has upheld the right of woman to marital and reproductive choices^[7]. In Shakti Vahini v UOI^[8], the Supreme Court struck down as unconstitutional, honour-based restrictions on inter-caste marriages:

45. […] When two adults marry out of their volition, they choose their path; they consummate their relationship; they feel that it is their goal and they have the right to do so. And it can unequivocally be stated that they have the right and any infringement of the said right is a constitutional violation. The majority in the name of class or elevated honour of clan cannot call for their presence or force their appearance as if they are the monarchs of some indescribable era who have the power, authority and final say to impose any sentence and determine the execution of the same in the way they desire possibly harbouring the notion that they are a law unto themselves or they are the ancestors of Caesar or, for that matter, Louis the XIV. The Constitution and the laws of this country do not countenance such an act and, in fact, the whole activity is illegal and punishable as offence under the criminal law.

In a range of cases, the Court has upheld the right of women to make career choices and eke out a livelihood in the chosen workplace. This holds significance in the context of Article 35-A which ended up controlling not only a woman’s marital choices but her job prospects, thus impacting her ability to attain financial independence. In Anuj Garg v. Hotel Assn. of India,^[9] the Supreme Court struck down a statutory prohibition on the employment of women in premises where liquor or other intoxicating drugs were consumed by the public. The Court held that the law suffered from “incurable fixations of stereotype morality and conception of sexual role”. The Court considered “traditional cultural norms as also the state of general ambience in the society” and held that “no law in its ultimate effect should end up perpetuating the oppression of women”.

In Valsamma Paul v. Cochin University^[10], the Supreme Court held that a social democracy depended on social integration of diverse people and saw marriage between parties from different castes or regions as an enabler of unity and integration rather than a reason for exclusion or punishment. The Court observed:

16.The Constitution seeks to establish a secular socialist democratic republic in which every citizen has equality of status and of opportunity, to promote among the people dignity of the individual, unity and integrity of the nation transcending them from caste, sectional, religious barriers fostering fraternity among them in an integrated Bharat. The emphasis, therefore, is on a citizen to improve excellence and equal status and dignity of person. With the advancement of human rights and constitutional philosophy of social and economic democracy in a democratic polity to all the citizens on equal footing, secularism has been held to be one of the basic features of the Constitution (Vide: S.R. Bommai v. Union of India [(1994) 3 SCC 1]) and egalitarian social order is its foundation. Unless free mobility of the people is allowed transcending sectional, caste, religious or regional barriers, establishment of secular socialist order becomes difficult.[…]

A five-judge bench of the Supreme Court finally put its imprimatur on the abrogation of Article 370 in Article 370 of the Constitution, In re,^[11]. With this judgment delivered on 11.12.2023 the constitutional status of Kashmiri women stood redressed. The Court held:

745. […] Article 370 of the Constitution of India was a feature of asymmetric federalism and not sovereignty. Article 370 was enacted as a transitional provision and did not have permanent character. The abrogation of Article 370 does not negate the federal structure, as the citizens living in Jammu and Kashmir do and will enjoy same status and rights as given to citizens residing in other parts of the country. [See para 748.] […]

With the abrogation of Article 370, the Indian legal system was extended in all its vigour to Jammu and Kashmir. Women now enjoy equal rights regardless of whom they marry. Central laws such as the Dowry Prohibition Act, the Protection of Women from Domestic Violence Act, the Prohibition of Child Marriage Act, and the Right to Education Act now apply uniformly. Property and succession rights are governed by national legislation, ensuring that women are no longer at the mercy of an archaic local framework.

The law does not instantly erase patriarchy in society in a single stroke. But it sets the constitutional grundnorm. This is a new beginning, however delayed, for gender justice in Jammu and Kashmir.

[The author acknowledges the contributions made by Aishani Narain, Advocate and Aandrita Deb, Advocate]