The anti-daughter position in Jammu & Kashmir: What Arun Jaitley left unsaid

Narendra Modi went to Jammu and, as he does so often, created controversy. True to character, he was careless with history, context, and facts. He asserted a half-truth that ignited a debate about discrimination against women in Jammu & Kashmir. With colourful oratory he made his point by stating, incorrectly, that the chief minister enjoyed certain rights his sister no longer had. He was making the point that by marrying a non resident of J&K, the CM’s sister had lost her permanent residency status and, with that, the opportunity to inherit or acquire property in J&K. He then went on to conflate Article 370, which grants special status to J&K, with the state subject (now permanent resident) law. As is the staple for BJP leaders, this was all mashed together as a critique of Article 370. Modi then demanded a debate on this issue.

Modi has his facts wrong. The law is clear: women do not lose their permanent residency status if they marry a man who is not a permanent J&K resident. Also, as the CM has noted, the State Subject law preceded the incorporation of Article 370 in the Indian constitution. But with Modi, facts are not enough. One has to explain them to him. For this and the other inconveniences of debating this issue, he left the task to senior BJP leader Arun Jaitley, who is fast becoming a sort of intellectual mentor for the BJP’s prime ministerial candidate. 

Jaitley promptly came to the rescue and posted an opinion on his website with the rather definitive title, “The Anti-Daughter position in Jammu & Kashmir”. He explained some facts well but left some key aspects out. I will try to complete the picture so that people are more aware of their rights and not mislead into believing half-truths about J&K. 

It is certainly true, as Jaitley notes, that the permanent residency law dating back to the Maharaja’s rule was misinterpreted for decades. There was a mistaken notion that if women married men from outside J&K, they would lose the permanent residency status that entitles them to inheriting and acquiring property in the state, along with other benefits reserved for permanent residents. 

Jaitley was also right to point out that, in 2002, the high court reinterpreted the law and clarified that women would not lose their permanent residency if they married a non permanent resident. He provided useful quotes from the high court judgement to illustrate his point. He was also correct to list the role of the National Conference (NC) and the People’s Democratic Party (PDP) in attempting to make a law that would discriminate against women if they married outside J&K. He stopped here, left out some aspects, and retreated to politics.

I believe Jaitley should have first provided a historical context to the state subject issue. The State Subject law came with two notifications (in 1927 and 1932) to help clarify the definition of state subject. The contentious part of the notification was a note at the end of this definition. Specifically, Note III reads as follows: “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 observed that “Mr. M.A Goni, learned Advocated General and Mr. Z.A. Shah Senior Advocated have contended that it is implicit in Note III that daughter of a permanent resident of the state marrying a non permanent resident of the state will lose her status as a permanent resident of the state to hold, inherit and acquire immovable property in the state.” 

The court did not agree with this view. A judge writing as part of the majority decision wrote that “Note III, in my view applies only to a female, who is non permanent resident of the state and marries a permanent resident of the state. It is for this reason that Note III prescribes a condition that wife or widow of a state subject will continue to have the status of her husband, so long as she resides in the state and does not leave the state for permanent residence outside the state.” 

Later on the judge states, “Therefore, I am of the considered view that Note III does not apply to a female, who is a permanent resident of the state and marries a non permanent resident of the state. The status of being permanent resident of the state, which she acquired on her birth by operation of law i.e. by virtue of Note II she will continue to hold the same so long as she remains the citizen of India.” 

Even children of women who marry outside the state are likely protected as far as inheritance rights are concerned. The high court ruled that, “A son or a daughter born to a state subject of class I or class II shall ipso facto acquire the status of state subject of class I or of class II provided he or she is a citizen of India”. This issue has not been conclusively resolved so far but I believe the way forward is clear in the 21st century.

In essence, the high court ruled in favour of women who might have otherwise lost permanent residency rights. The judgement opened the door to an appeal to the Supreme Court, an approach the then state government initially embraced, only to abandon it in favour of legislative action. We know now that both the NC and the PDP pursued a retrograde agenda by attempting to pass a law that would disqualify a woman from retaining permanent residency status should she marry a non permanent resident. Fortunately, such attempts did not succeed and cannot succeed because right to equality is an integral part of J&K’s constitution.

Did discrimination against women take place in the years leading up to the 2002 high court judgement? Undoubtedly. Did such discrimination continue after the judgement? Possibly. But the latter is likely due to administrative inefficiency and lack of awareness, and not because the law discriminates. The law is clear. The CM’s sister retains her right to inherit or purchase property in J&K, as do her children.

That there has been discrimination against women in J&K is a fact. But it is not dissimilar to how the rest of the country has evolved. After all, India has a long way to go before we can truly feel satisfied that we have achieved equal status for women. May I remind Jaitley that one of the worst examples of gender discrimination is female foeticide?

You only have to review sex ratios of different states to see that the anti-daughter phenomenon is not unique to J&K. It is an Indian thing, I am sorry to say. We still have in our midst men who hold views such as: “Women are meant to do household chores”, or “rapes are rare in “Bharat” but occur frequently in “India””, or “one has to abide by certain moral limits. If you cross this limit, you will be punished, just like Sita was abducted by Ravana”. Let us join hands to fight such a mindset, which fosters the anti-daughter position that I know Jaitley feels strongly about. Millions in this country, including I, feel the same way.

Finally, I was intrigued by one aspect of Jaitley’s website. He has a section specifically for J&K. No other state receives such special attention. I wonder why that is. Perhaps he will tell us someday.

The author is a member of the Indian National Congress. Views expressed are personal.

Salman Anees Soz describes himself as a former World Banker hoping to help find a way forward in Jammu & Kashmir. He tweets at @SalmanSoz.