In nation’s interest, Article 370 demands rigorous debate

Ever since BJP’s Prime Ministerial candidate Narendra Modi alluded to Article 370 and its impact, or the lack thereof, on the people of Jammu & Kashmir at the Lalkaar Rally, a debate has sparked off on how useful Article 370 has been. While this debate is rather nuanced and complex, and one column is not sufficient to cover all perspectives, one aspect of it deserves to be highlighted – how Article 370 gives J&K legislators the opportunity to enact a law with the requisite majority (2/3rds) and thereby disqualify women (and not men) from having rights as permanent residents in the event they marry out of State.

All this, without even as much a thought about the protections against discriminations guaranteed under our Constitution. As I had explained in my previous column, in 2002, the Jammu & Kashmir High Court struck down an executive order under which permanent residence status was given to Jammu & Kashmir women with the words ‘valid till marriage’. However, this is critical, the High Court also said that (Para 46) the J&K legislature was free to enact a law by which it could modify the definition of a ‘permanent resident’ and make provisions on what the status of a female marrying a non-State subject may be. The High Court struck down the executive order primarily because it was based on an obsolete and inapplicable basis of defining a married woman’s domicile.

Taking cue from the High Court’s judgement, a Bill (Disqualification Bill) was introduced in the J&K Assembly clearly stating that women who married out of State were disqualified from being permanent residents. As I had mentioned in the previous column, this Bill (thankfully) never became a law since the required voting never took place. The question for consideration, though, is this: Can such a blatantly discriminatory and anti-women law find itself on the J&K Statute books even if the Constitution of India prohibits precisely such discriminatory outcomes? The answer is, yes. And the reason why such a law is possible is Article 370.

In 1954, Article 35-A was inserted into Constitution of India. This Article essentially says that no J&K law which defines Who shall be permanent residents shall be void simply because such a law conflicts with the Fundamental Rights guaranteed to every citizen of India under the Constitution. The Fundamental Right in our Constitution which prevents discrimination on the basis of sex (among other things) is Article 15. However, because of Article 35-A, the Article 15 protection does not apply to a State law defining who can be permanent residents. In simpler words, due to Article 35-A, J&K Assembly has the sole prerogative to exclude whoever it deems fit from being defined as a ‘permanent resident’. Incidentally, this is something Leader of Opposition in the Rajya Sabha Arun Jaitley also discussed on his Facebook page.

Three questions arise: 

1. How is Article 370 responsible for this?
Answer: The reason why Article 35-A is a part of our Constitution is an instrument called Constitution (Applications to J&K) Order 1954 made by the President. The power to make such an order flows from Article 370(1). In simpler words, Article 370 authorises the President to make an order through which Article 35-A is validly introduced into the Constitution which, in turn, takes away the protection of Fundamental Rights when J&K makes a law defining who can be a permanent resident.

2. Doesn’t the J&K State Constitution contain a similar protection from discrimination on grounds of sex as Article 15 in the Indian Constitution? 
Answer: Not explicitly. The only place in J&K Constitution where women rights find a mention is Section 22 which says that the State shall endeavour to give women the right to full equality in all social, educational, political and legal matters. Note, however, that this ‘endeavour’ is a Directive Principle of State Policy. Under the J&K Constitution, provisions such as Section 22 “shall not be enforceable by any court”. Even though J&K Constitution states that it shall be the duty of the State to apply these principles in making laws, the efficacy of Section 22 is highly suspect is if these principles are not enforceable by any court.

3. Section 10 of the J&K Constitution says that permanent residents of J&K shall have the rights guaranteed to them under the Constitution of India. Wouldn’t the Article 15 guarantee against discrimination on grounds of sex apply to permanent residents?
Answer: Yes, it would. But it is important to understand how and when that protection would be available. This protection is available only after the State law regards you as a ‘permanent resident’. The question here is whether the protection is available at the time the J&K Assembly is enacting a law to define whether you are or are not a permanent resident. That distinction is important to understand.

Indeed, it is theoretically likely that, in the event such a blatant law is enacted, a J&K HC Bench in future may “read into” the J&K Constitution an inalienable protection against gender inequality. The problem, though, is that in the 2002 case, a Bench no less than the Constitution Bench clearly opined that the State legislature could well pass a law defining what the status of a woman marrying out of State can be. That prospect is scary. While defenders of Article 370 would vehemently tell you that the culprits for such a law would be the J&K legislators, what empowers those culprits, quite plainly, is Article 370.

Source: Niti Central