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Modi did not do his homework, says constitutional expert

A day after the rally of Bharatiya Janata Party's prime ministerial candidate Narendra Modi in Jammu on Sunday, experts in the state took apart his speech, pointing out factual errors. After Modi raised the issue of gender justice by saying women in the state lost their residential rights once married to men from outside the state.

india Updated: Sep 13, 2014 00:33 IST

A day after the rally of Bharatiya Janata Party's prime ministerial candidate Narendra Modi in Jammu on Sunday, experts in the state took apart his speech, pointing out factual errors.

After Modi raised the issue of gender justice by saying women in the state lost their residential rights once married to men from outside the state, the comments were promptly denied by chief minister Omar Abdullah.

"What the speech writers did not tell Modi was that Article 370 is not directly related to the issue of women's inheritance in the state and the 'valid till marriage' provision in the resident certificate has been done away with. After a high court order, women can retain their state subject even if they marry outside the state. The order stands as the review is pending," said Zafar Shah, a senior lawyer and constitutional expert.

Women can inherit the property as well, the judgement said.

"The only grey area is whether the children of the women who marry non-Jammu and Kashmir state subjects can inherit the property or not. It is an issue as our society is patriarchal," Shah added.

After softening his stand on the party's demand for scrapping Article 370, Modi tried to invoke sentiments by hitting straight at Kashmir's unofficial first family.

Attacking the chief minister, the Gujarat CM alleged that Omar Abdullah's sister did not enjoy the same rights he did.

"Development comes when there is integration. Men and women must have same rights. Should there be discrimination against women in J&K? Shouldn't the injustice stop?" Modi said during his rally.

Omar hit back on the micro-blogging website Twitter, saying Modi was "either lying or ill-informed". "He very conveniently used me and my sister as examples to illustrate a point that has no bearing in truth. Either he lies or is ill-informed," he had tweeted.

Constitutional experts in the state agreed that the Gujarat CM had not done his homework before the speech.

"While Article 370 talks about Kashmir's status in India, which came into existence after the country's independence, the Permanent Resident law was introduced by the erstwhile Dogra regime in 1927. The Dogra rulers feared settlement of Punjabis and Afghans in Kashmir, so put a legislation in place for buying and selling property in the state," said Zafar Shah.

"Article 370 and Permanent Resident law are not related to each other directly. Article 370 is a mechanism which says Indian laws will apply to Jammu and Kashmir, but only when president applies that law, and the request has to go through the state government. The Article also says that all our own laws in the constitution of Jammu and Kashmir are duly protected,"' Shah said.

"According to the Dogra law, which was applicable till recently, a Permanent Resident status meant that a Kashmir woman marrying a person from outside will lose her citizenship in the state, while a non-local woman would be a permanent resident of J&K, owing to her marriage with a local boy. No such condition existed for men," he added.

"The second most important thing that Modi missed is the fact that the J&K government had dispensed with the 'valid till marriage' clause in the Permanent Resident Certificate (PRC), thus bringing the women of the state on par with men. The PRC is one of the most important documents in the state, as without it one cannot buy land, get employment or get admission in professional institutions," he said.

The issue of gender inequity had come into focus on October 7, 2002, when the J&K high court struck down the executive order of the state government which stated that the PRC of women of the state was valid only till marriage.

The HC ruled that women would have the same rights as men even if they married outside the state.

"Two of the three-member bench were of the same opinion," Shah said, adding that the review of the judgement was pending, but it was ratified by the assembly in 2006.

"The state appealed to the Supreme Court against the judgment. However, the PDP government in 2004 withdrew the appeal and moved a bill in the legislative assembly seeking disqualification of a woman marrying a non-state subject," he added.

While the bill was passed in the legislative assembly, it hit a roadblock in the legislative council with the then chairman Abdul Rashid Dar adjourning the house sine die without putting the bill to vote. The NC then expelled Dar for 'sabotaging' the passage of the bill.

"The bill was again brought in the Upper House by the PDP in March 2010. The NC-led government did not oppose it. After about 15 days, the chairman of the legislative council said it was a constitutional bill and should be introduced in the assembly. He then dropped the bill, and the court judgement stands," Shah said.

The Article 370 comtroversy

Speaking at the rally, Modi had also asked for a debate on Article 370 which grants special autonomous status to J&K. Similar protection for unique status exists in tribal areas of India, including those in Himachal Pradesh, Arunachal Pradesh, Andaman and Nicobar Islands and Nagaland.
"This is a constitutional link between India and Kashmir. However, it is only for the state of Jammu and Kashmir that the accession of the state to India is still a debate," said Shah.

"Modi's comment that a debate is needed on Article 370 holds no water. The provision cannot be amended by the Parliament. Only a constitutional committee can recommend the amendments, so all this is just a poll plank," alleged Shah.

Modi's comments have not gone down well across party lines. While separatist leader Syed Ali Shah Geelani called Modi a "murderer of Muslims", PDP called him "misinformed".

"Article 370 is a bridge connecting Kashmir with rest of India. If it is scrapped, we will need to renegotiate the accession of Kashmir. It is not the Babri Masjid that can be demolished and forgotten," said PDP leader Mehbooba Mufti.

Underlining that the clock cannot be set back, the interlocutors of the central government in their recommendations last year have upheld Article 370 and recommended the setting up of a Constitutional Committee (CC) to review all Acts and Articles of the Constitution of India extended to J&K after the 1952 Delhi Agreement.

Although the interlocutors said there are growing political, communal and regional wedges across J&K, the report suggests that they found areas of general consensus on the need for dialogue to settle the issues of J&K as a single entity within the Indian Union, the need to uphold the state's distinctive status guaranteed by Article 370, and addressing the diverse aspirations of the Jammu, Kashmir and Ladakh regions.