The Hindu : An emotive issue

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Sunday, Mar 14, 2004

Opinion

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An emotive issue

By Inder Malhotra

There can be no two opinions that the gross violation of the fundamental principle of gender equality, inherent in the Jammu and Kashmir Bill denying permanent resident status to Kashmiri women marrying outside the State, is totally unacceptable. It is, in any case, almost certain to be thrown out by courts of law. In fact, it was because of an adverse judgment of the Jammu and Kashmir High Court that the controversial Bill was considered necessary.

On the other hand, the protagonists of this legislation — based on an archaic executive order issued by Maharaja Hari Singh in 1927 and incorporated in the Jammu and Kashmir Constitution adopted in 1952 — are playing on the highly emotive issue of Kashmir's identity and autonomy. Guaranteed under the famous Article 370 of the republic's Constitution, the autonomy, many Kashmiris allege, with some reason, has been "eroded" over the years. They want this process reversed and this matter is on the agenda of the talks between the Deputy Prime Minister, L. K. Advani, and the Hurriyat leaders. It could also crop up during the India-Pakistan dialogue.

Given the sensitivity of the situation, the ruling coalition in the State — consisting of the Congress and the People's Democratic Party of the Chief Minister, Mufti Mohammed Sayeed — was expected to act with exemplary care and caution. But sadly, it has done precisely the opposite. Driven by crass calculations of electoral advantage in the ongoing parliamentary poll, the Mufti Government rushed through the ill-considered measure, ironically, on the eve of International Women's Day.

In the midst of the storm created by the Bill nobody has cared to explain how it could be passed by the State Assembly — meeting in the winter capital, Jammu — unanimously and without any debate in six minutes flat. Only after there was a chorus of protests in the rest of the country did the curious twists and turns in the State Legislative Council follow.

By abruptly adjourning the Council sine die, its Chairman, Abdul Rashid Dar, may have postponed the day of decision but his action has only aggravated the bitter conflict among the rival parties and further inflamed an issue that was divisive enough to begin with. This is indeed a classic case of falling from the frying pan into the fire.

Nothing happens in Jammu and Kashmir that is not infinitely complex. Mr. Dar is a member not of the PDP but of the National Conference, led by Omar Abdullah, son of the former Chief Minister, Farooq Abdullah. The younger Mr. Abdullah is screaming against Mr. Dar, whom he has expelled from the National Conference for having been a ``party'' to a ``conspiracy'' — between the Mufti, on the one hand, and both the Congress and the BJP-led Central Government on the other — to ``sabotage'' the Bill.

Remarkably, Mr. Dar is defending himself by claiming that had he not resorted to his stratagem, the Bill would have ``fallen'' for want of a two-thirds majority. By keeping it ``alive,'' he adds, he has proved himself to be a ``better Kashmiri than Omar Sahib.'' That is where the rub really lies.

All sections of Kashmiris in the legislature have rallied behind the Bill in its present obscurantist form, though it is open to them to extend the Bill's provisions also to men marrying outside the State. On the other hand, non-Muslim members from the Jammu region, who had voted for the Bill in the Assembly, have turned against it. The least they want is that it should be sent to a select committee.

The Abdullahs, father and son, are in no mood to oblige. Confident that they have already turned the tables on the Mufti, they are taunting him to either summon the Council immediately to pass the Bill, or be ``exposed'' as a ``stooge'' of the Centre. To make matters worse, no one has supported the Bill more vehemently than the Mufti's daughter and the PDP chairperson, Mehbooba. She has not bothered to mention, however, how many Kashmiri women have married outsiders and how far this has diminished the ``Kashmiriyat.'' Interestingly, it was the marriage to an outsider of the granddaughter of Bakshi Ghulam Mohammed, a redoubtable former Chief Minister that had led to the court case that had in 2002 invalidated the 1927 executive order. Having sensibly appealed to the Supreme Court, the State Government had withdrawn the appeal and rushed in with the introduction of the Bill in the Assembly. Why? For fear that the apex court would reject it? If so, can't that happen after the Bill has been enacted and legally challenged?

In fairness, one point must be made. Autonomy for Kashmir, given the State's exceptional circumstances, is surely desirable. But only for as long as it promotes democratic values and is not used to either foster obscurantism or to create a local oligarchy exempt from all constitutional restraints and unaccountable to anybody. It should not be overlooked that many Kashmiri champions of autonomy want to exclude from the State the jurisdictions of the Election Commission, the Comptroller and Auditor-General and even the Supreme Court.

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