A charter for division

Print edition : September 24, 2004

The debates and furore preceding the defeat of the Permanent Residents (Disqualification) Bill in the Jammu and Kashmir Assembly portend a revival of chauvinism in the region.

in Srinagar

WITH 47 votes for it and 34 votes against it, the controversial Permanent Residents (Disqualification) Bill failed to secure a two-thirds majority in the Jammu and Kashmir Assembly. The ugly divisions unleashed by the State's politicians, however, look certain to deepen. Five years ago, National Conference (N.C.) moved proposals to sunder Jammu and Kashmir into communally polarised provinces; now, the political venom, provoked by the Bill, threatens to move that chauvinist vision one step closer to realisation.

Chief Minister Mufti Mohammad Sayeed speaking in the State Assembly in Srinagar on August 25.-

A casual observer might be forgiven for assuming that the August 27 debate in the Jammu and Kashmir Legislative Assembly was about almost anything other than the Bill itself. Much of N.C. leader Ali Mohammad Sagar's speech, for example, sought to suggest that opposition to the Bill constituted an attack on the State's federal autonomy. People who opposed the law, he argued, should "stop deceiving people now". Sagar went on to link opposition to the Bill with the integrity of New Delhi's dialogue with secessionists groups in Jammu and Kashmir. "When you have no trust in people who were showered with bullets for being Indian, then with whom are you holding talks?", he said. The N.C.'s provincial president Mehboob Beg took an expressly communal position: "In Jammu and Kashmir State, which acceded to India despite being Muslim dominated, Kashmiris are not being allowed to live."

Law Minister Muzaffar Beig, in turn, started by dismissing feminist critiques of the Bill by claiming that it had been "universally accepted that the woman follows the domicile of her husband". He rapidly transcended the narrow issue of the Bill, however, to claim that opposition to the legislation reflected hostility to ethnic Kashmiris. Beig went on to assert that Kashmiris were as patriotic and nationalistic as anybody else in the country - an unexceptionable argument had anyone said something of the kind in the first place, which they had not. Suppressing the Bill, he suggested, would mean offering Kashmir to Pakistan and leaders like the Islamist hardliner Syed Ali Shah Geelani "on a platter". Beig went on to link the Bill to the larger dynamics of the relationship between Jammu and Kashmir and India, noting that New Delhi had failed the institutions of democracy in Jammu and Kashmir "by toppling one leader and installing another".

Congress leaders, for the most part, sought to distance themselves from this discursive framework. Peerzada Muhammad Sayeed, the newly-appointed Jammu and Kashmir Pradesh Congress Committee chief, attempted to bring back focus to the gender issues in the Bill. "There are thousands of students studying in various States and some have married there. If we enact this law it would create problems for them. Legally and morally, the Congress will not be part of any Bill which is anti-women," Peerzada Sayeed argued. Beig's assault on New Delhi, however, soon made the Congress lose its cool. Deputy Chief Minister Mangat Ram Sharma attempted to shout down Beig, who was standing next to him. "Panditji, mein aapka mulazim nahi hoon (I am not your servant)", Beig responded, provoking an angry fusillade from the Deputy Chief Minister. Beig accused Sharma of Hindu fundamentalist sympathies; Sharma responded by alleging that the Law Minister supported terrorists. Even as the intemperate exchange continued, voting began - provoking further protests from N.C. MLAs, who wanted more debate.

Prior to the Assembly debate, the Bill had provoked violent clashes between Members of the Jammu and Kashmir Legislative Council. On August 23, in the midst of a debate on the Bill, N.C. leader Choudhary Bashir Naaz attempted to throw a microphone along with its stand towards Bhim Singh. Jammu and Kashmir's Minister of State for Social Welfare, Ghulam Hassan Khan, took up Bhim Singh's cause, and tried to hurl a wooden railing towards protesting N.C. members, who claimed that Bhim Singh had used a slur against ethnic Kashmiris. Further violence was contained by marshals within the House, but journalists outside joined the melee, assaulting a colleague recently posted to the city from Chandigarh.

Perhaps, none of this furore is a surprise. The Permanent Residents Bill has always been about politics. The foundations for the ongoing political theatre in Jammu and Kashmir were laid in October 2002, when a three-Judge Bench of the Jammu and Kashmir High Court passed judgment on challenges filed by 12 women against being deprived of permanent resident status on marrying men of other States. Justices V.K. Jhanji and T.S. Doabia upheld the women's appeals; Justice Muzaffar Jan dissented. The N.C. government put off a debate on the issue by filing an appeal in the Supreme Court. In September 2003, after the new People's Democratic Party (PDP)-led Government took power, Beig quietly withdrew the appeal: legal consensus held that it had no chance of success and its failure would close future opportunities for legislative action.

On the eve of the Lok Sabha elections this year, however, opportunism triumphed over legal sense. The PDP needed an issue on which it could show that the party was the sole spokesperson for ethnic Kashmiri Muslims, more committed to their cause than the N.C. In Jammu, the Bharatiya Janata Party (BJP) needed an issue to show that it, rather than the Congress, was truly committed to defending the rights of the region. In the Disqualification Bill, both parties found just what they needed.

Interestingly enough, no party opposed the Bill when it was presented to the Legislative Assembly. While most parties voted for the Bill, the lone BJP member, Jugal Kishore, absented himself at the time of voting. Promptly afterwards, the BJP hit the streets of Jammu protesting the legislation - followed in quick time by the Congress and the National Panther's Party (NPP). Both the PDP and the N.C. took equally loud postures in favour of the Bill in the Kashmir valley.

In a purely rational sense, the arguments surrounding the Bill were as absurd then as they are now. Contrary to the fulminations of the PDP, the BJP and the N.C. - all, of course, from different sides of the gallery - the Disqualification Bill has relatively little to do with Article 370, which gives a special status to Jammu and Kashmir.

Under this constitutional clause, laws enacted by Parliament must be approved by the Jammu and Kashmir's legislators before they take effect in the State. No Central law, of course, is at stake in the Permanent Residents Bill debate. The only State to negotiate its terms of accession to the Indian Union, Jammu and Kashmir also has its own Constitution. Among other things, its Constitution grants special rights - to purchase land, for example, and to be elected to legislative office or to hold State government jobs - to permanent residents of Jammu and Kashmir.

Yet, it has passed unnoticed, the Jammu and Kashmir Constitution itself nowhere debars women who have married non-permanent residents from retaining their status. Section 6 of Part III of the Jammu and Kashmir Constitution gives constitutional status to two notifications on permanent residents issued in 1927 and 1932. The notifications define all persons residing in the State before the reign of Maharaja Gulab Singh, those who settled there before the Samvat year 1942, and those who settled in the State before Samvat year 1968 and also purchased property as "State subjects" - the term then used for Permanent Residents. Indeed, the notifications expressly record that "descendants of the persons who have secured the status of any class of the State subjects will be entitled to become the State subject of the same class."

Quite plainly, the notifications say nothing about women marrying outside the State losing their status. All that exists is a mandate that women who acquire State Subject status through marriage shall hold on to this right as long as they reside in Jammu and Kashmir - a protective provision quite obviously intended to safeguard the rights of women from outside the State who married men living there. Not one sentence in the notifications provides legal and constitutional sanction to the long-standing discrimination against women in Jammu and Kashmir.

As Justice Doabia noted in his concurrence, Section 10 of the Constitution expressly mandates that "permanent residents of the State shall have all the rights guaranteed to them under the Constitution of India." `All', obviously, includes fundamental rights, on which the Jammu and Kashmir Constitution does not have a chapter. Since the Constitution of India bars gender discrimination, women in Jammu and Kashmir cannot be denied rights available to men.

WHAT political implications might the fall of the Bill have? For one, the strains in the PDP-Congress alliance have become only too evident. The ugly showdown between Mangat Ram Sharma and Muzaffar Beig were the latest in a series of skirmishes, notably over the conduct of the Amarnath Yatra. On that occasion, senior Congress leader Yogesh Sawhney had gone so far as to accuse Chief Minister Mufti Mohammad Sayeed of attempting to engineer his assassination. Contrary to some media speculation - and dramatic pronouncements by both Beig and Sayeed's daughter, Mehbooba Mufti - it seems unlikely that the strains in the PDP-Congress alliance will lead to a breakup. The Congress leadership in New Delhi is determined not to allow a change of leadership in Jammu and Kashmir; the PDP knows it cannot ally with the BJP.

More significant, though, the strains in the coalition have had real consequences on the ground. Although ethnic Kashmiri leaders in the Congress are hostile to the Bill, the fact remains that the bulk of opposition has come from Jammu-based politicians. Valley-based politicians from both the PDP and the N.C. have increasingly represented their Jammu counterparts as a kind of fifth column for Indian interests, a discourse replete with communal overtones.

Everything from rising private-sector investment in Jammu to growing tourism in Leh has been cast as part of a plot to undermine the traditional ascendancy of Kashmir in the State politics. Conversely, in Jammu itself, the Congress' decision to compete on religious and regional issues with the Panthers and the BJP also seems to have sparked off an escalatory cycle of chauvinism.

If it was not for just how fraught the political landscape has become, the ironies of the Bill would be delicious. The State subject laws were first passed by the Dogra monarchy, in response to demands by feudal landowners who were concerned about the splintering of properties. The N.C. and the PDP - both children of the great people's movement which brought down the Dogra Monarchy - today find themselves seeking to deepen protections intended to safeguard landed privilege. Regional chauvinists in the Congress, and the Hindu Right in Jammu, are protesting against legislation their ideological forbears thought was essential to guarding their privileges. There are some real insights available here, notably about the deepening integration of the Jammu bourgeoisie into the all-India elite, and the rising fears of the Kashmir-valley bourgeoisie about being swamped by modernity. Jammu and Kashmir's political system needs to find ways of accommodating these strains - or face a communal calamity of unprecedented proportions.

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