Kashmir – Myth and Reality

By Ashwin Tombat
18 August 2019 07:37 IST

There is so much misinformation being spread in the wake of the recent revocation of the special status of Jammu and Kashmir. So let us separate myth from reality.

Myth: Article 370 of the Constitution of India, which grants special status to Jammu and Kashmir, prevents Indians from buying land in the state.
Reality: Wrong. Article 370 gives the state ‘special status’, but it says nothing about land. It is Article 35A of the Constitution that empowers the J&K government to define the state's ‘permanent residents’, who get employment, scholarships and other privileges. Only they have the right to own and, therefore, buy property in the state.

Myth: Kashmir is the only place in India where Indians cannot buy land, though Kashmiris are free to buy land anywhere in India.
Reality:  False. Article 371 of the Constitution gives special rights: 371A to Nagaland; 371C to Manipur; 371F to Sikkim; 371G to Mizoram; and 371H to Arunachal Pradesh. In all the above states, outsiders are not allowed to buy land in most areas. Under the HP Tenancy and Land Reforms Act, 1972, outsiders cannot buy agricultural land in Himachal Pradesh. Outsiders are allowed to buy only 250 sq metres of agricultural land in Uttarakhand. However, residents of all these places are free to buy land anywhere in India.

Myth: If a woman from J&K marries a non-Kashmiri, she loses state citizenship and her right to own property in J&K.
Reality: Untrue. A Kashmiri woman who marries a non-Kashmiri continues to be a 'Kashmir citizen'. Article 35-A of the Constitution did say that she loses property rights and that her children are not considered 'permanent residents' if their father is not one. However, a full bench of the Jammu and Kashmir High Court struck down this proviso of the state subject (permanent residency) law in October 2002, in the case State and Others vs Dr Susheela Sawhney and Others. Since then, Kashmiri women marrying outsiders retain their permanent resident status and property rights.

Myth: Article 370 has been scrapped.
Reality: Incorrect. Article 370 is still in force. The Constitution (Application to Jammu and Kashmir) Order, 2019, issued by President Ram Nath Kovind, is “in exercise of the powers conferred by Clause (1) of Article 370 of the Constitution”. In effect, the central government has used Article 370 to withdraw the special status of Jammu and Kashmir.

Myth: Article 370 was a temporary provision, and had to go.
Reality: Very misleading. It is true that Article 370 was intended to be temporary. But that was until Kashmir’s Constitution was drafted and adopted, after which the Constituent Assembly of Kashmir would recommend the abrogation of Article 370 to the President. The Constituent Assembly of Kashmir, however, dissolved itself in 1957 without making any recommendation for amendment or abrogation of Article 370. Between 1955 and 2016, the Supreme Court of India has ruled on many occasions that Article 370 is now a permanent part of the Indian Constitution.

Myth: Article 35A was a conspiracy hatched in 1954 – long after Independence.
Reality: The ban on outsiders buying land in Kashmir was introduced long before Independence, on demands by the Hindu Dogras, who feared that wealthy Punjabis would grab all the land and jobs in the kingdom. In 1927, Maharaja Hari Singh issued a Royal Decree defining ‘State Subjects’, saying only they had the right to jobs and benefits, and to own land. This law was incorporated as Article 35A of the Constitution, with ‘State Subject’ (a feudal term) renamed as ‘Permanent Resident’.

In fact, former Prime Minister Jawaharlal Nehru said in the Lok Sabha during a debate on the subject in 1963: “That is an old rule coming on, not a new thing, and I think that it is a very good rule which should continue, because Kashmir is such a delectable place that moneyed people will buy up all the land there…”

Still have doubts that this is a demand of Hindus as well? On Monday, just a week after the central government scrapped J&K’s special status and Article 35A, none other than former J&K Dy Chief Minister and the seniormost BJP leader in the state Nirmal Singh demanded that “restrictions” be placed in the state on the purchase of land by “outsiders”, as well as on their appointment in government jobs. He wanted a safeguard like a “domicile certificate”, so as to “protect the interests of locals in respect to land and state jobs”!

Disclaimer: Views expressed above are the author's own.

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Ashwin Tombat

Ashwin Tombat has been the Editor of Gomantak Times and Herald. Worked as an Associate Editor of national magazine Gentleman in Mumbai, before shifting to Goa. Loves sailing, also participates in Marathons. Has worked as an activist in students's union and trade unions in Maharashtra. Also an artist of Street Theatre during student days.

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बेस्ट आर्टिकल

- Kashinath Mayekar, Maye | 18 th August 2019 09:53


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