Laws Exempt In Kashmir: A Unique Legal Landscape

The Indian government's decision to revoke Article 370, which granted special status to Jammu and Kashmir, has been a highly controversial issue. This article allowed the state a certain degree of autonomy, including its own constitution, a separate flag, and the freedom to make laws, while the central government retained control over foreign affairs, defence, and communications. The revocation of Article 370 has led to the region no longer having a separate constitution and having to abide by the Indian constitution like any other state. This has resulted in all Indian laws being automatically applicable to Kashmiris and people from outside the state being able to buy property.

The right to a separate constitution

Jammu and Kashmir was the only state in India with a separate constitution. This right was granted by Article 370 of the Indian Constitution, which gave special status to Jammu and Kashmir. The region has been the subject of a dispute between India, Pakistan, and China since 1947. Article 370 was drafted in Part XXI of the Indian Constitution, titled "Temporary, Transitional and Special Provisions". It stated that the Constituent Assembly of Jammu and Kashmir would be empowered to recommend the extent to which the Indian Constitution would apply to the state.

The state's politicians decided to form a separate constituent assembly, and the representatives to the Indian Constituent Assembly requested that only those provisions of the Indian Constitution corresponding to the original Instrument of Accession be applied to the state. The state assembly could also abrogate Article 370 altogether, in which case all of the Indian Constitution would have applied to the state. However, the state assembly dissolved itself in 1957 without recommending the abrogation of Article 370, thus making it a permanent feature of the Indian Constitution.

The Jammu and Kashmir Constitution was adopted on November 17, 1956, and came into effect on January 26, 1957. It established the framework for the state government and included Ladakh. It defined the concept of Permanent Residency, which granted special privileges to permanent residents in matters such as residence, property, education, and government jobs.

On August 5, 2019, the President of India issued a presidential order, The Constitution (Application to Jammu and Kashmir) Order, 2019 (C.O. 272), under Article 370, making all the provisions of the Indian Constitution applicable to the state and rendering the separate constitution infructuous. This order was based on a resolution passed in both houses of India's parliament with a two-thirds majority. As a result, the separate constitution of Jammu and Kashmir ceased to exist, and the Indian Constitution became applicable to the state, like all other states and union territories of India.

The right to a separate flag

The flag of Jammu and Kashmir was a symbol used in the former Indian state of Jammu and Kashmir between 1952 and 2019. It was a red-and-white flag with a representation of a plough and three constituent regions of the state: Jammu, Kashmir, and Ladakh. The red colour symbolised workers and labourers, while the white plough in the middle symbolised the peasants. The flag was first adopted by the Jammu & Kashmir National Conference, a political party, in 1939, and then by the Constituent Assembly of Jammu and Kashmir in 1952, making it the official state flag.

The Constitution of Jammu and Kashmir, in force until August 2019, mandated that the state flag be hoisted alongside the Flag of India. However, in 2015, the Bharatiya Janata Party (BJP) ministers refused to do so, stating that the state flag held no importance for them. This sparked controversy, with other parties accusing the BJP of trying to impose its nationalist agenda on a state with special status.

The state flag officially lost its status on 6 August 2019, following the removal of the region's special status through the abrogation of Article 370 of the Constitution of India. The state of Jammu and Kashmir was dissolved on 31 October 2019, and its territory was divided between two new union territories: Jammu and Kashmir, and Ladakh.

The revocation of Article 370 meant that Jammu and Kashmir would no longer have its separate flag, constitution, or special autonomous status. This paved the way for the BJP's long-held belief in "One flag, one Constitution, and one leader" for all of India. The abrogation of Article 370 also had other significant implications, such as allowing any Indian citizen to buy and sell property in Jammu and Kashmir, and the extension of the Right to Information Act to the region.

The right to independence over internal matters

Article 370 of the Indian constitution gave special status to Jammu and Kashmir, a region located in the northern part of the Indian subcontinent. This region has been the subject of a dispute between India, Pakistan and China since 1947.

Article 370 conferred on Jammu and Kashmir the power to have a separate constitution, a state flag, and autonomy of internal administration. Central legislative powers over the State were limited to the three subjects of defence, foreign affairs and communications.

The 'concurrence' was only provisional and had to be ratified by the State's Constituent Assembly. The State Government's authority to give 'concurrence' lasted only until the State Constituent Assembly was convened. Once the State Constituent Assembly finalised the scheme of powers and dispersed, no further extension of powers was possible.

Article 370 could be abrogated or amended only upon the recommendation of the State's Constituent Assembly. When the State's Constituent Assembly was convened, it recommended the provisions of the Indian constitution that should apply to the state.

In 1954, the Presidential order specified that only some articles of the Indian constitution applied to the state. This order was superseded in 2019, when a new order removed all restrictions and meant that the separate Constitution of Jammu and Kashmir stood abrogated.

The right to bar Indians from purchasing property

Article 370 of the Indian Constitution gave special status to Jammu and Kashmir, a region located in the northern part of the Indian subcontinent. This article allowed the state to have its own constitution, a separate flag, and freedom to make its own laws. One of the key provisions of Article 370 was the right of the state to bar Indians from outside the state from purchasing property or settling there. This meant that only permanent residents of Jammu and Kashmir had the right to own and buy property in the state.

The Maharaja of Kashmir, Hari Singh, first passed a law in 1927 to stop the influx of people from the northern state of Punjab into the state. This law was known as Article 35A and was part of Article 370. It allowed the legislature of Indian-administered Kashmir to define the state's "permanent residents" and what distinguished them. All identified permanent residents were issued a permanent resident certificate, which entitled them to special benefits, including the right to own and buy property.

However, in August 2019, the Government of India issued a Presidential Order superseding the 1954 order and making all the provisions of the Indian Constitution applicable to Jammu and Kashmir. This meant that the separate Constitution of Jammu and Kashmir was abrogated, and all Indian laws, including those related to property ownership, would be automatically applicable to Kashmiris. As a result, people from outside the state could buy property in Jammu and Kashmir without any restrictions.

The decision to revoke Article 370 and Article 35A has been a controversial one, with protests both for and against the move. Critics argue that it goes against the Indian government's promise to protect Kashmir's special status and that it will change the demographic character of the Muslim-majority region by allowing non-Kashmiris to buy land. Supporters of the decision, including the Hindu right-wing groups, argue that it will bring development to the region and put Kashmir on the same footing as the rest of India.

The right to prevent non-Kashmiris from settling in the state

Article 35A of the Indian Constitution, which is part of Article 370, allowed the legislature of Indian-administered Kashmir to define the state's "permanent residents" and outline what distinguishes them from non-residents. This law was first passed by the Maharaja of Kashmir, Hari Singh, in 1927 to curb the influx of people from the northern state of Punjab.

Article 35A gave permanent residents of Kashmir special privileges and benefits related to employment, scholarships, property rights, and the ability to buy property in the state. Those living in the state as of May 14, 1954, when the law came into effect, and those who have lived in the state for ten years anytime since, are counted as permanent residents.

The state legislature could also alter the definition of a permanent resident or other aspects of the law by a two-thirds majority. This meant that the state of Jammu and Kashmir could make its own rules relating to permanent residency, ownership of property, and fundamental rights, including barring Indians from outside the state from purchasing property or settling there.

In 2019, the Indian government revoked Article 370 and Article 35A, thereby removing the state's ability to prevent non-Kashmiris from settling in the state. This move was seen as a way to integrate Kashmir and put it on equal footing with the rest of India, but it was met with protests and criticism, especially from those who believed it would change the demographic character of the Muslim-majority region by allowing outsiders to buy land and settle there.

The revocation of these articles also had broader implications for the state's autonomy, as it meant that Kashmir would no longer have a separate constitution and would have to abide by the Indian Constitution like any other state. This marked a significant shift in the relationship between India and Kashmir, which had been fraught for decades due to Kashmir's special status and the region's desire for independence.

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