The Kashmir Conundrum is like Abhimanyu's Chakravyuh

Laws  not applicable to J&K

1. Indian Penal Code. Instead of IPC the State has RPC i.e. Ranbir Penal Code. Note that RPC does not permit cow slaughter.
2. Prevention of Corruption Act 1989.
3. The Religious Institutions (Prevention of Misuse) Act, 1988. This law prohibits religious institutions from allowing their premises for the promotion of political activity and their storing of arms and ammunition.
4. The Delhi Special Police Establishment Act, 1946. The legal powers of the CBI are derived from this Act. It means that J&K is outside the purview of CBI.
5. The Right of Children to Free and Compulsory Education (RTE) Act, 2009.
6. Political Reservation for Scheduled Tribes is not there in J & K inspite of their being 10.9% of the State’s population (2001 Census).

The  State has refused to accept the 42 nd  Constitutional Amendment by which the word ‘Secular’ became part  of the Preamble in the Indian Constitution.

Some  key Parliament Acts that are applicable to J&K in part only.
1. Section 13D of The Representation of People Act, 1950 does not apply to J&K. It provides that ‘the electoral roll of every parliamentary constituency shall consist of the electoral rolls of all assembly constituencies comprised within that parliamentary constituency’. The exception is required because Refugees from West Punjab who crossed over to J&K during partition are in electoral rolls for Lok Sabha but Not State elections since they are not ‘Permanent Residents’.
2. The Unlawful Activities (Prevention) Act, 1967 empowers the Central Government to ban any combination or body of individuals that act in a manner intended to bring about cession or secession of Indian Territory or to disrupt the sovereignty and territorial integrity of India etc. Any activity under section 153-A (promoting enmity between different groups on grounds of religion etc or 153-B (refers      to ‘Imputations, assertions prejudicial to national integration’) of the IPC is defined as unlawful. However, activities falling under these two Sections are excluded from the purview of this Act since IPC is not applicable to J&K.

Key  Articles of the Indian Constitution which are not applicable to J&K
1. Art 31 C with respect to Directive Principles of State Policy.
2. Art 36-51 relates to Uniform Civil Code.
3. Art 51A lays down fundamental duties of every citizen of India.
4. Art 219 that stipulates the text of the oath or affirmation by High Court judges before assuming office.
5. Art 332 deals with reservation of Scheduled Castes/Tribes seats in the State Legislature.
6. Art 360-Empowers the President of India to make a Proclamation of Financial Emergency, if the situation so warrants.
7. Art 365-Failure of any State to comply with directions given by the Centre makes it lawful for the President of India to believe that a situation has arisen in which the State cannot be administered out in accordance with the provisions of the Indian Constitution.

‘The  beneficial laws such as Wealth Tax, Gift Tax and Urban Land Ceiling  Act and intermarriage with other Indian nationals do not operate in  J&K State’. The Service Tax Act is not applicable; J&K  levies its own Service Tax.

The  Assembly is for six years (per 16 th  Amendment Act 1977) unlike the rest of India where it is for five.  Also a Constitutional Amendment of 2003 that puts a ceiling on the  strength of the  Council  of ministers in states at 15% is 30% for J&K.

Every  legislator and judge including the Chief Minister and Chief Justice  is required to swear by the Constitution of the State and not that of  India.

‘No  part of the State of J&K can be disposed of as a result of an  international agreement without the prior consent of the State  Government’.  1 pg148  It  implies that the Central Government’s hands are tied in case a  settlement with China involves ceding of Aksai Chin.

There  are many anomalies  like the Chief Election Commissioner of India is appointed by the  President under  Article  324  of  the Constitution. His appointment for J&K and exercise of  jurisdiction must be under the laws of the State.

Note  that J&K members of Parliament can express opinion on  Parliamentary laws introduced relating to India but the laws  exempted, fully or partly, from application to J&K are not  amenable to discussion by Parliament.

Lt  Gen N S Malik wrote that Article 370 had made ‘J&K  psychologically and physically different and separate, thus hindering  its effective integration into the Indian Union’.10

So  what these provisions have done is to create a State i.e. heavily  dependent on the Centre for funds where Parliament is unable to pass  laws as it can do for other States.

In  1950 the situation was a bit complicated, J&K was facing the heat  of war supported and abetted by Pakistan who had forcefully occupied  vast territory of the State. We were entangled in the UN and promise  of plebiscite was made there.  But sixty-four years later the  situation has changed!  OR  is instability in and non-integration of J&K with India supported  by those powers who want India to be on the edge and keep its Army  perpetually under pressure.

Q.  Does Article 370 prevent anyone from buying property in the State?

A .  Restrictions to buy property flow from the authority that Article 370  gives to the issuance of executive orders exempting or modifying  provisions of Parliament’s laws or the Indian Constitution in  respect of J&K. Armed  with the provisions of Article 35A, the State Constitution confers  certain benefits to Permanent Residents one of which is the exclusive  right to buy immovable property. The definition of permanent  residents is restrictive, will be discussed later.

Some  seek to justify this restriction by saying the State  government is following a law laid down by the Maharaja, in 1921,  that was introduced to prevent Punjabi Muslims, of what eventually  became Pakistan, from buying property in the Valley. The reason is  irrelevant today. Others argue the neighboring state of Himachal Pradesh too has restrictions on  outsiders buying land. However, the provisions  are nowhere near the breadth and scope of what exists in J&K.

Some suggest that if  the J&K Government continues with restrictions on purchase of  property similar restrictions should be imposed on citizens of J&K  who own property and business in India for eg Sahil Peerzeda whose  fiancé was allegedly involved in a 2012 IPL scandal is a Kashmiri  businessman based in Mumbai with interest in real estate and  apparels. According to Times  of India (23/5/2012)  the family has a net worth of Rs 3,000 crs. To read more

Women’s  Rights

Article  370 has also indirectly provided a means to violate the social, legal  and property rights of local permanent resident woman.

Women  from out of J&K who do not hold a permanent resident certificate  get one on marrying men from the State. Children born from such a  marriage get full citizenship rights in J&K. The opposite is not  true. When a woman marries a man who does not hold a PR certificate  she is no longer a Permanent Resident, if employed with the State  Government her services are terminated.

Women  approached the Courts for justice. A three judge Bench passed an  order on 7/10/2002, ‘daughter  of a permanent resident of the State of J&K will not lose status  as a permanent resident of the State of J&K on her marriage with  a person, who is not a permanent resident of the State of J&K’.

Interestingly,  there is no provision in the Notification I-L, dated April 20, 1927,  or in the Constitution of J&K that on marriage with a  non-permanent resident, the daughter of a permanent resident will  lose her status as a permanent resident of the State.

Today,  women of the State marrying outsiders continue to be State Subjects  after marriage, retain property in their names but the same cannot be  transferred to their heirs. The late Sunanda Pushkar had recently  lamented that State Laws did not allow property owned by her to be  transferred to her son.

How  long will J&K continue to deprive its women of equal rights?

Post  the 2012 Delhi gang-rape case Parliament passed the Criminal Law  (Amendment) Act, 2013 which excludes J&K. It is not known if the  draft Bill, 'Jammu and Kashmir Criminal Laws (Amendment) Bill, 2013  is passed by the State Legislature and notified in the Official  Gazette.

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