The Specter of Gender Discrimination in the Removal of Kashmir’s Autonomy

By: Ather Zia

This piece is part of APLA’s newest Speaking Justice to Power Series, which focuses on Kashmir and marks the one-year anniversary of the abrogation of Articles 370 and 35A of the constitution (August 5, 2019). The Series page is available here

On August 5, 2019, the quasi-autonomy of Indian administered Kashmir (also Jammu and Kashmir or J&K for short) was removed militarily without consulting the Kashmiri legislature or the people. This move was decried as illegal (Parthasathy 2019) and deemed an unconstitutional deed accomplished by deceitful means (Deshmane 2019). The Indian government justified its action by saying autonomy had impeded the region’s development and gave a host of arguments to support it. One amongst them stood out that of gender discrimination which the ruling part indeed had long honed as an important concern.

The Rashtriya Swayam Sewak Sangh (RSS) is a Hindu militant organization that was founded on ideals of Hindu supremacy, drawing from fascist and Nazi ideology. It is the ideological associate of the Bharatiya Janata Party (BJP), a right-wing Hindu ethnonationalist party currently in power in India. In 2014, the RSS backed the first public interest litigation (PIL) in the Supreme Court seeking to repeal Article 35A of the Indian constitution that protected the territorial sovereignty of the region and gave the Kashmiri legislature authority to define the state’s permanent residents. The residents of Kashmir were issued a permanent resident certificate which ensured the indigenous population received their right to property, franchise, employment, scholarships, and other privileges. However, the PIL alleged that the article was discriminatory to Indians who wanted to settle in the region and restricted the right to property of Kashmiri women who married men not holding a permanent residency certificate in J&K (See Bansal 2019). The petition challenged the validity of constitutional orders that limited the powers of Indian Parliament to make laws for J&K and allowing provisions for permanent residentship. In 2017, the second litigation against 35A was filed in the Supreme Court by a lawyer and former member of the Indian National Commission for Women Charu Wali Khanna, and along with Seema Razdan Bhargav, a biochemist. Wali claimed that the Kashmir government refused to identify her as a permanent resident because she didn’t have any documentary evidence to prove her claim (Ganai 2018). Wali challenged Article 35A on the grounds of “blatant gender discrimination” stating:

My family had migrated from Kashmir two generations ago but we had a family house there. But the way things started getting bad was very sad. I last went to Kashmir 10 years ago with much pride; I had taken my husband to that place. I have settled down in Delhi, but there is so much pollution and when you are relatively well settled you want to have a second home where you can go for a holiday and relax. My husband then said he wanted to go to the hills and then he told me why not Kashmir. And then I came to know that as I had married a non-Kashmiri, I would not be able to buy a house. I could not believe that. I tried for two years and nobody supported me. I then tried to find out from other people the solution for my problem (Ashraf 2019).

The BJP government ensured that gender angle became a sort of rallying cry against Kashmir’s special status. Earlier in 2013, when Modi was still campaigning as a Prime Ministerial candidate he had said, “Men and women must have same rights. Should there be discrimination against women in J&K? Shouldn’t the injustice stop” (Yasir 2013). Modi had used the example of the then J&K’s Chief Minister Omar Abdullah’s sister, who is married to a non-Kashmiri, saying: “..does his sister Sara Pilot enjoy the same rights? No, because she married outside the state” (Ibid).

The gender discrimination angle went unchallenged amongst the Indian masses even when Kashmiris of all shades – legal experts, local politicians, activists, journalists, and scholars deemed the argument to be dubious and strawman at best. The former chief minister of J&K whose sister Modi had referred to went on record saying that she had not lost any rights or property. In the 1960’s there had indeed been a bureaucratic decree in place but without any basis in law – which had been introduced by the then Revenue Ministry and did not allow Kashmiri women who married non-residents to renew their residency status. In a landmark case filed by a Kashmiri woman Sushila Sawhney who had married a non-Kashmiri, in 2002 J&K’s High Court had given a ruling that Kashmiri women who married non-Kashmiris did not lose their  permanent residency and thus retained all rights as a citizen. The only caveat was, that while the rights of such women were protected, the rights of their heirs were not specified and needed to be adjudicated on a case-by-case basis. Nonetheless, a committee had already been appointed by the subsequent administration to devise a lasting solution for this lacuna. The new policy had not yet been finalized due to the interminable slowness of bureaucratic red tape.

Yet the narrative of gender discrimination was received uncritically and in the long run garnered an unquestioning support from the masses. This was especially true for Indian women including those who identify as feminists and gender advocates. It was clear that BJP appropriated sympathies that gender issues often invoke towards unilaterally erasing the autonomy of a sovereign people. The Indian state blatantly projected itself as the protector of women’s rights in Kashmir while its record of human rights abuses and sexual violence is internationally documented and denounced. Gender discrimination in Kashmir was made to appear as a natural outcome of the stereotype of Kashmiri Muslim patriarchy which in the common Indian narrative is portrayed as violent and oppressive to women. Kashmiri men are often demonized as the stereotypes of “Islamists,” “terrorists” and “orthodox.” Kashmiri women are often patronized and seen as subjects that need rescuing from their men (Bhat 2017; Associated Press 2007). In this context, Kashmir’s autonomous status was framed as creating a shield for an oppressive patriarchal structure which perpetrated gender injustice as exemplified by the women who married non-Kashmiris.

The gender discrimination argument fit the established stereotype of Kashmiri patriarchy in the Indian imagination, of which autonomy was constructed as a virulent manifestation; and thus to be dismantled. The laxity in implementing and revisiting a law did not warrant dismantling an entire state; unless dismantling the state and its autonomy at all costs was the real intention. Most Indians supported the erasure of Kashmir’s autonomy and disagreed only with the brazen indiscretion of the undertaking.  A pertinent question around solidarity with Kashmiris arises around the role (or lack) thereof from Indian feminists. This is not an arbitrary question but a crucial one considering the centrality of gender. Where does Indian feminism stand vis a vis the Indian military occupation of Kashmir? After the removal of autonomy, the government of India imposed a months long curfew, shut down phones and internet facilities; arrested and detained pro-India politicians, resistance leaders and civilians including children. Several citizens groups visited Kashmir including a few women’s groups to document the human rights abuses and the humanitarian crisis unfolding in the valley. Historically, the solidarity that rights groups (which include Indian women and those identifying as feminists) have given Kashmiris (or Kashmiri women specifically) is limited to framing Kashmir as a tragedy of human rights abuse to be solved within the framework of Indian constitution. This analysis was reiterated by feminist scholars who work on South Asia in their statement on how relations of solidarity exist between South Asian feminism, nationalism, and transnationalism. The statement highlighted that the solidarity Indian feminists offer to Kashmiri women is within the myopic frame of “human rights issue” while a deliberate silence is maintained on Kashmir’s disputed political status. The feminist silence ends up contributing to the Indian nationalist project. Thus, solidarity appears as mere tokenism when it stops short of challenging Indian colonialism in Kashmir.  The mere improvement of the human rights record of the Indian forces is not the end goal of Kashmiri demands. If anything, the grave human rights abuses by the Indian military are a symptom of the occupation and repression of the real demand of the Kashmiris for liberation and right to self-determination.

Following the removal of autonomy, many Indian politicians and citizens publicly celebrated the military conquest of Kashmir. Social media was flooded with misogynistic songs where Kashmiri women were objectified as the spoils of war to be sexually harassed, kidnapped, or forcibly married. There was little to none protest on behalf of Kashmiri women; least from Indian feminists individuals or groups or the government. Thus, gender discrimination which the government of India had propped up as a reason for the removal of autonomy seemed even more a ruse, deployed in propagating the Indian religious ethnonationalist project. And in which Indian feminists seemed complicit.

Many Kashmiris fear impending demographic changes will pave the way for settler colonialism or the region will become another Xingjian. Currently under the Covid19 pandemic quarantine measures Kashmir is under a double lockdown. Even during this fraught time the Indian government has unilaterally amended the domicile act allowing non-Kashmiris fulfilling a certain criteria to gain rights to property and franchise. But the legal ramifications around property rights of Kashmiri women and descendants of women who married non-Kashmiris; those whose concerns were made pivotal in the removal of autonomy are not yet clear. Since the erasure of autonomy does not automatically grant any retrospective redress, the petitioners are awaiting further rulings and clarity.

Ather Zia is a political anthropologist, poet, and short fiction writer. She teaches at the University of Northern Colorado Greeley. She is the author of Resisting Disappearances: Military Occupation and Women’s Activism in Kashmir (University of Washington Press, 2019) and co-editor of Resisting Occupation in Kashmir (University of Pennsylvania Press, 2018) and A Desolation called Peace: Voices from Kashmir (HarperCollins, 2019) and Can you Hear Kashmiri Women Speak (Women Unlimited, 2020). She has published a poetry collection “The Frame” (J&K Cultural Academy of Arts and Languages, 1999) and another collection is forthcoming. Her ethnographic poetry on Kashmir has won an award from the Society for Humanistic Anthropology. She is the founder-editor of Kashmir Lit and is the co-founder of Critical Kashmir Studies Collective, an interdisciplinary network of scholars working on the Kashmir region. An ex-journalist she continues to write for mainstream journals. Find her on Twitter @aziakashmir 

References Cited:

Deshmane, A. 2019. Kashmir: Scrapping Article 370 “Unconstitutional”, “Deceitful,” Says Legal Expert A.G. Noorani. Huffington Post India. August.

Bansal, Anchal & Sharma, Nidhi. 2019. Petitioners who challenged Article 35A happy over changes in property rights. August 8. The Economic Times.

Bhat Adil. 2017. Oppressed by Religion, Kashmiri Women Are Forgetting How to Sing. August 17.  The Wire.  

Associated Press. 2007. Sonia Gandhi Visits Women’s Empowerment Conference in Kashmir. September 11. Feminist News.

Ganai Naseer. 2018. No Woman Loses Property Right In J&K If She Marries A Non-State Subject. August 7. Outlook India.

Parthasathy, S. 2019. An exercise of executive whim: Negation of Article 370 in J&K doesn’t stand up to constitutional test, strikes at federalism. The Times of India. August 7.

Syed Firdous Ashraf. 2019. ‘Modi govt has undone a historic wrong on Article 370‘. August 5. Rediff

Yasir Sameer. 2013. Modi’s ‘lalkar’ rally: New stand on Article 370, hints at new ally. First Post. Dec 2. The First Post

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