Indian Defence Review

The recent suggestion of the Gujarat chief minister and BJP’s Prime Ministerial candidate Narendra Modi at a rally in Jammu that the nation should debate the usefulness of the Article 370 of the Indian Constitution that grants special rights to the state of Jammu and Kashmir has caused a hue and cry in the political circles. It has particularly angered the anti-BJP politicians, activists and intellectuals, who, in turn, are unanimous that the BJP through this demand has injected communal elements into the national politics and strengthened the hands of the Kashmir – separatists and their masters in Pakistan.  Jammu and Kashmir Chief Minister Omar Abdullah has interpreted Modi’s suggestion to be unfortunate and unnecessary. In an answer to question at a media enclave on December 4, he said that that there was a lot of confusion among the masses regarding Article 370. He said that “the law unites J&K with the other states and it serves as a bridge between the state and the rest of the country”.

Omar’s father and Union Minister Farooq Abdullah has gone even a step further to say, “Whether it is Narendra Modi or anybody else, nobody can abrogate Article 370, which is here today and would be here tomorrow.”  He apparently was “sad that in order to fool people, Narendra Modi is speaking of issues like Article 370. If he wants to become the Prime Minister of India, he must think of uniting India and not of dividing it.”

What exactly did Modi say at the rally? Going by the press reports, he said that the BJP  would carry forward the initiatives in Jammu and Kashmir on the principles of “Insaniyat, Jamhuriyat and Kashmiriyat” as envisioned by former Prime Minister Atal Bihari Vajpayee, that “whether Article 370 has done anything good or bad should be discussed, but has Omar Abdullah’s sister got the same right as him?”( Omar’s sister is married to junior Union Minister Sachin Pilot, hailing from Rajasthan),  that “despite huge natural resources, the state government has always been approaching the Centre with a begging bowl, that corruption is rampant in Jammu and Kashmir,  that it was time  that  there should be  laws to prevent corruption be there in the state something that is not possible as the rules made by the centre  are not applicable in the state because of Article 370, and that “Article 370 of the constitution grants special status to Jammu and Kashmir. The BJP has always advocated for scrapping the Article.”

Most of the reactions that followed Modi’s suggestion centered round why, how and if the women in the state of Jammu and Kashmir do not enjoy the same property rights as that of the men. Omar termed Modi’s view on the subject was factually wrong. As Prof. Rekha Chowdhary rightly says, “Article 370 has nothing to do with this issue. It is the issue of Permanent Residents of the state. This was a local law passed in 1927 by Maharaja Hari Singh. According to this law, only the state subjects were entitled to certain privileges including state employment and ownership of property. The discrimination against women was a later phenomenon. The Permanent Resident Certificate (a terminology used for ‘state subjects’ in post-1947 period) for women was stamped ‘valid till marriage’. After their marriage women, in order to enjoy the rights of Permanent Residents of the state had to be reissued the certificate, in case they married the Permanent Residents. Women who were married outside the state were not issued such certificate. This administrative practice was challenged in the High Court of the state and in 2004 decision came in favour of women. As per the present legal position, no distinction is made between men and women in their right to be the Permanent Residents. This is despite the fact that the then ruling  PDP (under Mufti Mohammad Sayed)tried to undo the High Court decision by introducing a bill (twice) for disqualifying women to be the Permanent Residents of the state if they marry outside the state. However, the bill could not be introduced due to the vehement opposition within the Assembly and outside. Hence women even if they marry outside the state continue to be the Permanent Residents of the state”.

It may be noted here that the PDP was not alone in making laws to overcome the High Court judgment. The National Conference of the Abdullahs was also very a party to it. In that sense, Modi’s suggestion resulted in a categorical statement of   Omar Abdullah that his party was wrong and would not challenge in future the majority Jammu and Kashmir High Court judgment that favoured property rights of the women married outside the state. But then, the fact remains that there are still plenty of hurdles for women of the state in acquiring property. For instance, even if a woman from the state marrying outside the state is able to acquire property as per the High Court ruling, her children will not be able to inherit that property as they cannot be “the permanent residents” of Jammu and Kashmir.

Take the case of Sunanda Pushkar, wife of another Union Minister Shashi Tharoor. In an interview to a television channel she said, “I want someone to re-look at this article (Article 370). I am not asking to abolish it but please give us back our home also,” adding, “I have not benefited from this article. Kashmiri Pandits have not benefited from this article many Muslim girls have not benefited from this article.” While being questioned about Article 370, Mrs Tharoor said, “Actually I am quite sure my husband would be annoyed with me answering this question but I do also have a voice. I am a woman I am a Kashmiri, very proudly Kashmiri, and I do beg pardon of my husband if I say this but because he is a very big fan of Jawaharlal Nehru but what I don’t understand when this accord was formed ……. why is about Kashmir that we can’t do it.”