With the scrapping of the controversial Article-370 by the Government of India on August 5, 2019, the women would no longer be deprived of their property rights in J&K if they get married to a non-resident. Article 35A, which emanated from Article 370, prohibited them, till the abrogation of the article, to be property owners if they marry an outsider. Article 35A also empowered the J&K government to decide who could be a ‘permanent resident.’ Only a permanent resident could acquire land, get a government job and settle in the state.
Putting restrictions on the choices of the residents of a state is patently illiberal; and putting restrictions on the basis of gender is anti-women to boot. Article 35A and Article 370, thus, were blatantly against the ethos of our constitution and the principles of justice, liberty, equality, and fraternity that it espouses.
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Introducing the abrogation Bills on August 5, 2019, Home Minister Amit Shah had said in Parliament, “Daughters of the state marrying outside the state lose their rights to property. It is so discriminatory to the women and their children. SC and ST [Scheduled Castes and Tribes] people have been discriminated against and have been deprived of reservation to political offices. Despite knowing this a few people have been perpetuating this article only for their political gains.”The next day, Shah said that those who favour Article 370,oppose the Prevention of Child Marriage Act which could not be applied to J&K due to Article 370. Similarly, other laws like the Right to Education, the Land Acquisition Act, the Multiple Disability Act, the Senior Citizens Act, the Delimitation Act, and the Whistle Blower Protection Act could not be applied to J&K.
In his address to the nation on August 8, 2019, Prime Minister Narendra Modi also stressed the discrimination against women, “The daughters of Jammu & Kashmir were deprived of the right that our daughters had in rest of the states.”
Article 370 itself is gender neutral, but the way permanent residents were defined in the state constitution based on the notifications issued in April 1927 and June 1932 during the Maharaja’s rule – seems biased against women. The 1927 notification included an explanatory note said “The wife or a widow of the state subject … 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.” This was widely interpreted as also suggesting that a woman from Jammu and Kashmir who marries outside the state would lose her status as a state subject.
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With the abrogation of the Article-370 and with it Article 35A, women in Jammu and Kashmir (J&K) can now buy real estate and transfer property to children, even if they get married to a non-resident as Article 35A has automatically become void with the scrapping of Article 370.
On August 5, 2020, the Union territory of Jammu and Kashmir completes one year since the abrogation of the Article-370. These have been numerous stories where women from remote and backward areas have risen to fame. While the grit and hard work of these female champions has been on the major drivers of their success, it is also believed that the annulment of the Article-370 has also allowed them greater access to the opportunities and resources to excel in their fields.
(Aaryan Sharma is former student of JK Public School Kunjwani and presently studying law at Bennett University, Noida)