Article 35A: Can SC Deliver a Reformist Ruling Like Triple Talaq?

Will the Supreme Court deliver a progressive judgment in Article 35A just like Triple Talaq verdict?

While the Triple Talaq judgement has been appreciated by many, including Muslims themselves, the Supreme Court has yet another controversial issue on its hands – Article 35A.

Article 35A is a provision incorporated in the Constitution giving the Jammu and Kashmir Legislature a carte blanche to decide who are ‘permanent residents’ of the state and confer on them special rights and privileges in public sector jobs, acquisition of property in the State, scholarships, and other public aid and welfare.

There are many commonalities between Triple Talaq and Article 35A. First and foremost, both smack of gender inequality.

India is among a handful countries where a Muslim man can divorce his wife by saying the word ‘talaq’ (divorce) three times, not necessarily consecutively, at any time and through any medium. including over a telephone call, text message, or a social media post.

Also Read: Key 1954 Legal File on Article 35A Goes Missing From Home Ministry

Triple Talaq and Article 35A Discriminate Against Women

Many affected Muslim women and activists say the practice of instant Triple Talaq is discriminatory. Interestingly, most Islamic countries, more than 20, including Pakistan, Iran, Indonesia, Afghanistan, Bangladesh, Turkey, UAE, Qatar, and Saudi Arabia, have banned Triple Talaq. But, it thrives in India as it has the second largest Muslim population in the world.

If Triple Talaq (instant divorce) is discriminatory against the Muslim daughters of India, Article 35A discriminates against the daughters of Jammu and Kashmir.

It amounts to violation of the right of women to ‘marry a man of their choice’ by not giving their heir any right to property if they marry men not holding the PRC (permanent resident certificate).

If a male permanent resident of Jammu and Kashmir marries anywhere outside the state, including Pakistan, his wife and children get permanent residency. But, until 2002, if a daughter of the soil chose a life partner from any other state, her permanent residency was cancelled. Post 2002, in the Susheela Sawhney vs state of Jammu and Kashmir case, the J&K High Court struck down this practice.

Also Read: Article 35A Debate: How BJP’s Stand Puts PDP in the Dock in J&K

Susheela Sawhney Case

The Court ruled:

In view of the majority opinion, we hold that a daughter of a permanent resident marrying a non-permanent resident will not lose the status of permanent resident of the state of Jammu and Kashmir.

The decision was widely welcomed but both the regional parties (prompted by the Hurriyat) opposed it and delayed its implementation.

When in power, these parties, rather than honouring the court’s judgement, tried to adopt the legislative route to amend the definition of permanent resident by introducing the Permanent Resident (Disqualification) Bill which could not see the light of the day due to stiff opposition from the Jammu region.

However, the issue still remains to be resolved fully as the children out of this marriage are not deemed permanent residents until and unless a female child born out of this marriage is married to a permanent resident of the state, once again violating her right of “marrying a man of own choice.”

Will the Supreme Court Redefine ‘State Subject’?

Other similarities between Article 35A and Triple Talaq is that the doors of the Supreme Court have been knocked by affected women, indicating the awareness among them and their quest for gender equality.

Even though it has been practised for decades, the unilateral instant Triple Talaq finds no mention in Shariah or the Quran. Islamic scholars say the Quran clearly spells out how to issue a divorce – it has to be spread over three months which gives a couple time to reflect and reconcile.

While Triple Talaq is not included in the Sharia, gender discrimination also does not form part either of the State Subject Law of 1927 promulgated by the Maharaja or the Jammu and Kashmir Constitution whose part III deals with permanent residents.

Note III of the 1927 law has been ruled inapplicable by the High Court to the daughters of the soil, which said that it was applicable only to those wives or widows who acquired the state subject by virtue of their marriage to a state subject and decided to reside outside the state thereafter.

In fact, even during the Maharaja’s time in 1939, the state subject of Ghulam Kabra and her right to inherit property was challenged in the High Court on the grounds that though a state subject by birth, she had lost that status by marrying a non-state subject.

The court then held that Kabra was legal heir of the property which she could inherit on the plea that there was no provision in the state subject law to cancel a state subject once granted. Similarly, the provision made in rule 8 of the Jammu and Kashmir Grant of Permanent Resident Certificate (Procedure) Rules of 1968 does not provide any ground for cancellation.

Misuse of Executive Order

To quote  Balraj Puri, an eminent writer of Jammu and Kashmir, “It was in the mid-sixties when the then Revenue Minister issued an executive order directing all deputy commissioners to issue certificate of permanent residence to women with the proviso ‘valid till marriage’.” Even this order, which lacked the force of law, was differently interpreted.

When daughter of a senior bureaucrat, SAS Qadri, of the state married Mehmood-ul-Rehman, an IAS officer from outside the state, in 1973, her status as a permanent resident of the state and her right to inherit property of her father under that was declared valid by the Revenue Minister on the ground that “the Constitution of Jammu and Kashmir or any other law does not provide for deprivation of a permanent resident of the state of his or her status.”

The provision of the Act, thus, has been used selectively and arbitrarily by Kashmiri politicians. Like the Triple Talaq, this also does not have any legal or moral sanctity.

Also Read: 7 Years After Banning Triple Talaq, MP’s Sharia Court Reacts to SC

Will Article 35A Case Also Take a Leap of Faith?

Both Triple Talaq and Article 35A have also been marred by controversies. While a section of the Muslim society, particularly the Muslim Personal Law Board and the clergy, are vehemently opposed to the case being heard by the Supreme Court on the grounds that it was a matter of faith and personal law and courts do not have the jurisdiction to interfere in the same, activists termed it as exploitation of women and sought prohibition.

Similarly, the Kashmiri power brokers, whose tunnel vision is confined to the Kashmir Valley and their handful of party cadre in the other two regions of the state, vehemently oppose any tampering with Article 35A, terming it as a guarantee of their ‘special status’; the majority population in Jammu and Ladakh hopes that the Supreme Court will strike down or amend the provisions of the article in its present form as it is highly-discriminatory and gender biased.

The Triple Talaq judgment has set India on the path of achieving the dream of New India – an India free of terror, hate, and discrimination. Hopefully, the verdict on 35A will take the nation a step closer to the same.

Also Read: My Kashmir is “Almost Matriarchal”– Our Inheritance Laws Are Proof

(Brigadier (R) Anil Gupta is BJP spokesperson (J&K), political commentator, columnist, security and strategic analyst. He can be reached @BrigadierAnil. This is a personal blog and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)

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