May 4, 2004
Madhu Kishwar has written about the Kashmir Bill that denies Kashmiri women the right to be considered permanent citizens of Jammu and Kashmir if they marry outside the state. While agreeing that the Bill is anti-women, she still tries to defend it by saying that the Hindu Succession Act and social practices deny daughters property rights. The editor has underlined the argument with a subtitle ‘Forget the J and K Act, contemporary Hindu laws are among the most discriminatory against women’.
I have strong objection to this line of thinking. But let us begin with the history of the legislation and its contents. In 19th century, when Kashmir was very much a princely state and the Maharaja was a vassal of the Queen Empress, some English officers aspired to buy land in Kashmir. The then Maharaja Ranbir did not want that to happen, so he took the plea that only his subjects could buy land in Kashmir and the English were subjects of the Queen, just like himself. The Maharaja passed an executive order to say that only subjects could own land. This was the beginning.
So the whole question was of being a subject. The status of a subject entailed being a permanent resident. At the same time, the Maharaja could and did confer permanent resident’s rights on an outsider such as a favoured physician. This would be a rare occurrence.
By custom and tradition, on marriage, girls belong to the husband’s family. If the husband was not a subject of the Maharaja, then the girl also ceased to be one. If she inherited landed property in the state then she could enjoy it but she could not buy any. She could sell the inherited property, but only to a resident. She could not give or will it to any outsider, not even her children. The bar on selling to non-Kashmiris applies to all Kashmiris, not just the women married to outsiders. A male permanent resident also cannot sell his land or will his land to a non-Kashmiri. This is because no non-Kashmiri can own land in Kashmir.
This bar is a part of Article 370 and cannot be a subject of debate here. But it is not a matter of gender discrimination. One still fails to understand why the woman who is married to an outsider may not buy land, since in any case she cannot sell it to outsiders. This executive order was made at a time when there was no question of anyone voting as there were no elections. Jobs were easy to get as few were educated. Few women worked in white-collar jobs. Over a period of time, other modifications were made, also by executive order. The last executive order was by Maharaja Hari Singh, when Kashmir was still a princely state.
As things stand, women who marry outside the state may not hold government jobs, and they cannot vote. Their children cannot get admissions in government schools, colleges or professional courses. A person applying for a government job has to produce a certificate of being a permanent resident. A woman’s certificate is marked ‘‘until she is married’’. A member of the J and K Public Service Commission said that he always asked the women why their certificates carried this condition. None of them had paid any attention to it and it did not worry them even after being asked.
This executive order was challenged before the High Court of Jammu and Kashmir. The high court struck it down as unconstitutional. The Supreme Court refused the government leave to appeal. Thereafter the government thought they would bypass the judiciary by converting the executive order into a law! This is how the current Bill came about. If things take their normal course, the courts will also strike down the Act. The interesting point is that women legislators, including Mehbooba Mufti, have supported this Bill. Many ministers have daughters or sisters who stand to lose.
This point needs investigation, it must not be brushed aside. One has heard journalists say that no woman in J and K has opposed this Bill, although one does not know if they have talked with yet-to-be-married women or women who have married outsiders.
Please note: marriage with an outsider leads to loss of permanent residency even if one is still living there. My friend Naseema married Irfan (names changed) from Madhya Pradesh. He was exceptionally well qualified and was actually invited to run a department in Kashmir University. But Naseema herself could not get a job. She had lost her status as a permanent resident! Her children could not get admissions to government institutions and she could not vote. He was an honoured guest, she was persona non grata! But her brother lives in Europe, he is married not just to a non-Kashmiri but to a non-Indian. He and his wife can buy property. Absurd!
The bar on holding jobs or being a voter is less easy to accept. If she is living in J and K then alone will she seek these rights. What is wrong with that?
Kishwar tilts at windmills. Agricultural land laws in some states such as Uttar Pradesh have excluded women from shares in ancestral property, but it is regardless of their religion. No community has objected. Just because we have problems with the Hindu Succession Act, must injustice anywhere else be accepted? Why should the best be the enemy of good? Kishwar also confuses law with practices and makes sweeping statements like no father gives land to his daughter. At least a man without sons is inclined to favour his daughters over his nephews.
She also forgets that until the Hindu Succession Act, Hindu women had no way to inherit from husbands and fathers. Now it is a matter of who wants to do what with his property. I even know a mother-in-law who willed her property to her daughter-in-law as being a better manager than her son. If women are forced to sign away their rights, they must learn to stand up. One cannot always expect to be popular. The women who won the right to education, the widows who chose to remarry under the Hindu Widows Remarriage Act were far from welcome in conventional society. All rights have a price on them. Life is not a neat fairy tale.
Kishwar mentions her very creditable writ petition to secure land rights for the Ho women of Ranchi. ‘When we went there in connection with the Koel Karo dam, the tribal leaders were totally against women receiving land in compensation, even though it was an extra share, not given out of the men’s shares. They threatened to leave the meeting if women were included amongst the persons entitled to compensation’’. They knew about Kishwar’s writ petition and were particularly furious with her. They said women do not need land. As girls they live with their father, then go to the husband’s house, if the husband dies, she remarries. Where else have we heard these words? In a myriad places, of course!
No law is perfect. The idea behind saying Hindu women continue to suffer is to demand further reform. But there is a very real problem in reforming only Hindu personal law. That was done in 1950s as a demonstration. Now every time we mention Uniform Civil Code the cry goes up they are going to impose Hindu law! It is a mischievous outcry by people who know it is not true. It is also a way of rejecting reform by implying that Hindu law was reformed and it has not helped Hindu women.
We do not make this demand on any other law. Has dowry-related violence stopped after the law? Or homicide because of the Indian Penal Code? Do we demand that those laws be thrown out of the window? This debate cannot be hung on the frail shoulders of the Kashmir Bill. Let us understand the Bill and let us see where it needs to be challenged. It is no good tilting against windmills!
(The writer is a Delhi-based legal activist and executive director of Multiple Action Research Group)
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