Busting the myths about Article 370
Guest Blog by Ratul Das – Studying LL.M. at the West Bengal National University of Juridical Sciences. Interests: philosophy,tracking political and social issues and sports.
I have seen this post doing the rounds on social media for quite some time now. Am pained to say this ‘awareness campaign’ is full of misinformation.
Propaganda machine of the BJP at work
Let us examine the allegations point by point:
1. There is nothing like ‘dual citizenship’ in Jammu & Kashmir. The closest thing to it is the status of ‘permanent resident’ as defined under the Constitution of Jammu & Kashmir. A cognate allegation goes that a Pakistani citizen attains Kashmiri ‘citizenship’ (or residential status) if he marries a Kashmiri ‘citizen’/resident. There is nothing in Article 6 of the Constitution of J&K to support this.
2. Disrespecting Indian national symbols and integrity are criminal offences under the Jammu & Kashmir State Ranbir Penal Code, Samvat 1989 (which closely mirror the provisions of the Indian Penal Code, 1860).
3. The Supreme Court and institutions like the Comptroller and Auditor General have jurisdiction over J&K. By virtue of the Presidential Orders (as authorized by Article 370) the basic structure of the Indian Constitution applies to J&K. Further, to clarify, while the right to education has not yet been applied to J&K, right to information does apply.
4. There was once some confusion over whether a female resident of J&K loses her rights as a permanent resident if she marries someone resident outside the State. A landmark judgement, in October 2002, the full bench of J&K High Court, with one judge dissenting, held that the daughter of a permanent resident of the State will not lose her permanent resident status on marrying a person who is not a permanent resident, and will enjoy all rights, including property rights.
5. The State of Jammu & Kashmir does not recognize sharia law as applicable in courts of law.
6. The Parliament of India has a good role in making laws for the J&K. Till 1963, the Parliament could legislate only on subjects contained in the Union List, and had no jurisdiction in case of subjects covered by the Concurrent List under the Seventh Schedule of the Constitution. Since then, the Union has been progressively acquiring competence to legislate on more and more subjects. On July 30, 1986, the President made an order under Article 370, extending to Kashmir Article 249 of the Constitution in order to empower Parliament to legislate even on a matter in the State List on the strength of a Rajya Sabha resolution. The Union Legislature now has the power to legislate not just on subjects contained in the Union List, but also on all of the subjects in the Concurrent List, and the State List. In this respect, the J&K is, in fact, worse off than any other state today.
7. Restriction over property acquisition cannot be directly attributed to Article 370. Anyway, such restrictions are not peculiar to J&K only. It applies to numerous tribal regions.
8. The State of Jammu & Kashmir is not the only one that enjoys ‘special status’ under the Indian Constitution. Part XXI includes special provisions for a number of States.