Jammu & Kashmir: From a State with autonomy to two Union Territories

Fact check: What is true and what isn’t on J&K, Article 370

Speaking out: Students and others protesting at Parliament Street here on Monday against the Centre’s move to amend Article 370.  

A President's Order abrogating certain provisions on Article 370, bifurcation of Jammu and Kashmir into two union territories, and a Bill extending 10 per cent reservation to the economically backward section to the State as well, was widely discussed on social media on Monday.

Opinions and arguments aside, the online discussions mentioned a number of claims regarding the new legislation and the status of Jammu and Kashmir. Here is a fact check on such claims.

Claim: Article 370 has been scrapped.

Not yet. President Ram Nath Kovind promulgated Constitution (Application to Jammu and Kashmir) Order, 2019, which states that provisions of the Indian Constitution are applicable in the State. This effectively takes away the autonomy of the State. However, Article 370 is still in force. In fact, the Presidential Order exercises the powers conferred by clause (1) of Article 370 of the Constitution.

So far, the Parliament had only residuary powers of legislation in J&K such as enacting laws related to anti-terror, taxation on foreign and inland travel, and communication. Now every law enacted by Parliament is applicable in Jammu and Kashmir and Ladakh as well.

Claim: The State had a separate flag

True. Jammu and Kashmir had its own flag since 1952. The protocol mandates unfurling both the national flag as well as the State flag at all public events. After the presidential order, only the national flag will have to be hoisted.

Claim: Jammu and Kashmir had a separate Constitution.

True. Article 370 allowed the state of Jammu and Kashmir to have its own Constitution. Laws passed by the Parliament were applicable in the State, only after the State government gives its concurrence.

In fact, the landmark indirect tax reform, GST, was rolled out on July 1, 2017, across the country, except Jammu and Kashmir. This is because that State Assembly cleared the GST Bill only on July 7, 2017, after a Presidential Order that “…the powers of the State of J&K as per Section 5 of the Constitution of J&K, shall remain intact,” was adopted.

Claim: Kashmiris have dual citizenship. They could visit Pakistan.

Misleading. Kashmiris is a term referred to the ethnic group native to the Kashmir Valley. Over generations, ethnic Kashmiris have migrated to several parts of the world, including Pakistan. India does not allow dual citizenship, including to Indian Kashmiris.

The 'dual citizenship' of Kashmiris is with reference to Article 370 under which they are considered as citizens of India as well as citizens of Kashmir. A non-Kashmiri residing in Kashmir, however, is considered only a citizen of India and the J&K Constitution refers to them as "permanent residents".

As for visiting Pakistan, any Indian with a valid visa can visit the neighbouring country.

Claim: Kashmir is the only place where non-Kashmiris couldn't own land.

False. Article 35A prohibited non-Kashmiris from owning land in the region. However, Jammu and Kashmir is not the only State to have this law. Land laws vary from State to State. For example, in Karnataka, only an agriculturist can purchase agricultural land.

Parts of Assam, Tripura, Himachal Pradesh, Arunachal Pradesh, Nagaland, and Andaman & Nicobar Islands have restrictions on outsiders buying land.

Claim: RTI Act was not applicable in Kashmir

False. Jammu and Kashmir has had a Right to Information Act since 2004, a year before the Central RTI Act came into existence. However, the State didn't approve the Central legislation for a long time. In 2007, the State's RTI Act was amended on the lines of the Central Act; however, activists crticised it for not having the High Court and private bodies under its ambit.

Claim: People of Ladakh cannot elect MLAs anymore

True. With the bifurcation, Ladakh will cease to be a part of Jammu and Kashmir. The region will now be a Union Territory without legislature like Lakshadweep, Dadra and Nagar Haveli, Daman and Diu, Chandigarh, and Andaman and Nicobar Islands. So the Jammu and Kashmir Legislative Assembly will be four seats less. Ladakh will continue to vote in parliamentary elections.

Claim: Duration of J&K Assembly has been curtailed.

True. As per the J&K Constitution, Assembly elections are held in the State once every six years. Now, Assembly elections will be held once in five years, like the rest of India.

Claim: J&K cannot enact separate laws now

False. The presidential order only eliminates the need to pass every Indian law once again in the Jammu and Kashmir Assembly. However, the Assembly can pass Bills and subject to the approval of the Lt. Governor of the Union Territory, it will become a law. Just like other States, the J&K Assembly too can override a Central law by amending it, subject to the approval. For example, Puducherry amended the Prevention of Cruelty to Animals Act, 1960, to allow bullfighting sport Jallikattu in its region.

Claim: Reservations were not applicable in Kashmir.

Misleading. Reservations in the State are governed by the Jammu and Kashmir Reservation Act, 2004. It is this Act that had to be amended to provide 10 per cent reservation to the economically backward class. Unlike the rest of India, reservation is provided only in appointment and admission in professional institutions, to SC, ST and socially-backward classes. There is no reservation for minorities. A recent Ordinance extended the benefits of reservation to people living in Pakistan-occupied Kashmir as well.

Claim: If a woman from J&K marries out of the State, she loses citizenship of the State.

False. According to Article 35-A, a Kashmiri woman loses property rights if she marries a non-Kashmiri. She continues to be a 'Kashmir citizen.' The issue gets complicated with her children. Her children are not considered 'permanent residents', if their father is not one. Even if they live in Kashmir, it is left to the discretion of the Jammu and Kashmir government to grant the 'permanent residents' status.

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Printable version | Feb 17, 2021 12:00:42 PM | https://www.thehindu.com/news/national/fact-check-what-is-true-and-what-isnt-on-jk-article-370/article28835918.ece

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