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Article 35A: Why Women Have No Share in J&K Conflict or Resolution

Why must women in J&K have to choose between a husband of their liking and a house on the hills?

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Why must women in J&K have to choose between a husband of their liking and a house on the hills?

Feminist inquiries in the legal domain are often about transgressions. It becomes essential, therefore, to comprehend how theories of existence, like citizenship law and property, are gendered.

Article 35A of the Indian Constitution, inserted by the presidential order of 1954, allows the state of Jammu and Kashmir to define its own citizens. This transgresses the commitment towards gender equality by allowing the state to define its ‘permanent citizens’.

The modern state, with its sacrosanct constitutionality and legal legitimacy, often criminally disenfranchises female citizens by reducing them to the status of secondary and non-ideal citizens, worthy only of conditional welfare.

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Precedent from the Sushila Sawhney Judgment Ignored

The case, State of Jammu and Kashmir versus Dr Sushila Sawhney and Ors (2002) stated that the daughter of a permanent resident marrying a person outside the state would not lose the status of permanent resident of Jammu and Kashmir.

However, after the Sushila Sawhney case, neither did the Parliament make an effort to explicitly change the language of the provision, nor did any organ of the government issue a clarification on the same.

Moreover, the Sushila Sawhney judgment talks about women’s permanent status in the state but leaves out the fate of her children, and the present case seeks to do just that, and as an illogical and sexist extension allows the violation of the right to property of the female citizens who choose to marry ‘non-state subjects’.

While the lawful descendants of such matrimony are absolutely denied the right to inherit property from the state or apply for scholarships or any other welfare schemes, the male members who choose to marry outside the state are granted with naturalised citizenship for their spouses and children, thus highlighting the patriarchal notions of this law.

Feminist Perspective of Property

The complex interaction between the domain of marriage in patrilocal and patrilineal societies, and property and land rights further embeds the female body in a realm of dislocation and dispossession. Underlying this disinheritance is the oversimplified notion that infantilises women and refuses to acknowledge the female desire of property or possession. Hence, it is imperative that a feminist perspective of property is worked upon.

Legality is a matter of perspective, one that is changed with a shift in power and whenever the law announces itself as a cul-de-sac, the oppressed get trapped. Gender violence committed by such laws is definitely a matter of academic and political inquiry, apart from being a tale of oppression.

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Women’s Autonomy Trampled

The state of Jammu and Kashmir, which has preserved the feudal law of dispossessing women post marriage to ‘outsider’ men, infantilises these women, obliterates their right to marriage and subsumes their autonomy within the logic of protection.

Article 35A, when read with the draconian AFSPA Act, which literally justifies violence on women because of larger security concerns, further ensures that there is no escape. The women from Jammu and Kashmir demanding the revision of article 35A to include their marriage rights might be pitted against the call for autonomy.

The women in Kashmir are threatened of rape and extinction. There is no right to grieve the dead or mourn the loss. There is no right to go and look for the disappeared. Worse, there is no right to run away from all this. The women from Jammu & Kashmir have been entrusted to become the guardians of culture, ‘respectfully empowered’ beings who will not demand property, for those are the demands of the vile, the divorced and worse yet, the promiscuous and the vulgar.

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Policy of Dispossession

The women from Jammu & Kashmir have no share in the conflict or its resolution even if they swallow an undue share of the damage.

I don’t speak for everyone else but if the autonomy for Jammu and Kashmir necessarily is premised upon the deduction of my rights, if I cannot be respected enough to marry who I want to, then this sure isn’t my autonomy.

I will not take a colourful cage, I’m done with the sacrifices. I remember Iris Marion Young in this regard who said that ‘it is not merely that dissent is dangerous, worse yet, it is ungrateful’.

Therefore what becomes essential to note is that such policies of dispossession work primarily because the system in Jammu and Kashmir has definitely considered women as lesser subjects which is why policies like the Armed Forces Special Protection Act continue to violate the female body and mind in the name of defence.

Whose defense is it if as a woman, I’m dying anyway during the act of that defence? Why is raping my body considered a secondary crime compared to violating the idea of an abstract nation state?

Iris Marion Young, in fact, further explains that the feminine woman, rather on this construction, adores her protector and happily defers to his judgment in return for the promise of security offered. Masculinist protection is more like pastoral power than dominative power that exploits those it rules for its own aggrandisement.

States often justify their expectations of obedience and loyalty – their establishment of surveillance, police, intimidation, detention and the repression of criticism and dissent – by appeal to their role as protectors.
Iris Marion Young
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Subordination of Women’s Rights

I would take this argument further and highlight that this is true even in conflict states like Jammu and Kashmir, ones that might not be living in a state of heightened war but reserve the potential of escalation.

The binary of inside and outside, or as it is called ‘ithe de log (locals) and ‘bahar de log (outsiders)’ in Dogri is often employed to create an illusion of emergency and threat from outside, to legitimise authoritarian power. The women from Jammu and Kashmir are rooted in an international conflict that feeds off their flesh.

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It wouldn’t be incorrect to mention here that the autonomy of Jammu and Kashmir with the Indian nation state, largely preserved by a joint reading of Article 35A and Article 370 is foundationally a sexual contract (Pateman’s term) based on the reciprocation of respect for autonomous status but conditional upon subordination of women’s rights.

The exclusion of the women of Jammu and Kashmir, from active performance in public sphere or realisation of their citizenship status as ‘full members’ is not incidental but critical to Jammu and Kashmir’s negotiation with the Indian state.

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Obligation of the State

The discourse of rights and justice cannot function in an abstract isolated space and hence, a citizen is created as an embodiment of a claimant for the rights, a seeker of the justice and a petitioner of any violation. Although modern nation states guarantee the status of a citizen based on the reciprocation of territorial loyalties, the performance of an ideal citizen is of course regulated not just by simplistic conditions of residence but also essential obligations in the sphere of economy, civil society and politics.

However, sometimes, the process of creating an ideal citizenry has been premised upon the exclusion of those who have legally been included out of an unexplainable compulsion.

The maintenance and subordination of this sphere of passive citizens serves as a spectacle to the ones wholly included, reminding them of what could happen if the nation state were to leave them behind.

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Women’s Relationship to Property

Why is the female desire of property so under analysed as if women have neither material concerns and aspirations nor creative abilities and investor confidence?

While the female body in itself considered an object worthy of possessing, showing off and later dismantling at the male accord, women’s relationship to property and how its possession or dispossession is not just culturally regulated but further regulates their social and political status has often been ignored.

Margaret Davies reiterates that property is a multi faceted, sometimes self contradictory and internally irreconcilable notion which is variously manifested in plural cultural discourses – economic, ethical, legal, popular, religious etc.

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One is reminded of Locke’s declaration of property as an inalienable right. It is this notion of property as an intrinsic right, born within the body of the liberal citizen, that property becomes central to the constitution of citizen as a political actor.

In liberal discourse, the ownership of material objects provides a sense of self to the citizen, whose status now becomes proportional to property.

As Davies mentions, property is seen as delineating the private sphere as separate zone from the public and it protects citizens from state interference, providing a space for private resistance against a potentially antagonistic and intrusive state. Property thus provides a sense of belonging and rootedness, a sense of home, a sense of infrastructural safety.

I believe that even the political and legal infrastructures, our rights and claims from the modern nation state which are built around our bodies/identities/expressions, are a different form of property and complete us by not just allowing us to be free in an abstract sense but also by allowing the realization of our capacities to their fullest.

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Discrimination on the Basis of Gender

There is no shrinking away that any debate on Article 35A will lead to paranoia on both sides, autonomy is ‘feared’ to be gone once the state is flooded with people from outside. Leaders from chief political parties across the spectre have announced their comic solidarities (obviously not with women) and warned that any meddling with the autonomy of Jammu and Kashmir will lead to chaos and violence. What they have forgotten is that a peace that is premised upon the suppression of cries is no peace in the first place.

The demands of women to lead lives of dignity cannot be arbitrarily suspended for a later discussion or because of more essential, ‘primary’ concerns at the moment.

If the men from Jammu and Kashmir can be entrusted with the responsibility of not marrying manipulative vile partners who are eyeing just the property and will discard the man soon after marriage, well then there is no reason this confidence cannot be placed in the women of Jammu and Kashmir. There is absolutely no reason why they must have to choose between a husband of their liking and a house on the hills.

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(Simple Rajrah graduated in Politics with specialisation in international relations from Jawaharlal Nehru University. This article is a part of a broader paper on the same topic that was presented at the National Workshop on Feminist Methodology 2017, University of Delhi. 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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