Kashmir Land Ownership
Ashok Chowgule, Mumbai, India, July 1998

ABSTRACT - The provisions of Article 370 of the Constitution of India are
cited as posing a particular problem in the governance and effective
protection of the State of Kashmir. According to provisions of Article 370
adopted when the State became part of India in 1947, non-Kashmiris are not
allowed to buy land in Kashmir and Kashmiri women who marry non-Kashmiris
also lose the right to land ownership there. Other restrictive provisions of
Article 370 are cited that are clearly damaging to the principle of
federalism in this time of crisis and dispute over the Kashmir territory.
Kashmiri landowners are being terrorized and brutally evicted, making any
proposed self-determination or plebiscite an oxymoron.


Non-Kashmiris are not allowed to buy land in Kashmir, according to a peculiar
law in the State of Kashmir that was passed in the early 1930's. According to
this law, if a Kashmiri woman marries a non-Kashmiri, she loses the right to
land ownership in Kashmir also. When India became independent in 1947, the
Constitution adopted Article 370, which gives special privileges to the State
of Kashmir as a temporary measure -- it was conceived of as temporary because
of a complicated Deed of Accession which the then-Maharaja signed when the
State became part of India. There was not any opportunity to deal with the
issue in the Constitutional Assembly at that time because of other pressing
matters.

The proposed self-determination or plebiscite of Kashmir is an oxymoron when
legal landowners have been forced to leave the State.
Article 370 has today become a bone of contention in the name of secularism.
Although many provisions of the Article have been done away with, the
provision that says that any law passed by the Lok Sabha (the central
legislative body of India) becomes applicable to Kashmir only if the State
assembly accepts it in effect gives the assembly veto rights over the central
legislative body. This privilege is available only to the State of Kashmir,
which obviously goes against the basic principle of federalism. Article 370
thus prevents the restrictive land ownership law from being repealed, because
it is in the interest of the local politicians to maintain their hegemony.

At one time, Article 370 provisions required any non-Kashmiri visiting the
State to get special permission to do so. Article 370 has thus created a
feeling of separateness among Kashmiris, which is encouraged by the local
politicians. Article 370 has also been a source of extensive corruption that
has profited a few prominent families. The amount of central government
assistance that the State has received is enormous, yet there is very little
development activity in the State. The special status and privileges of the
State of Kashmir prevent its meaningful governance and protection by the
federal government of India.

Self-styled Indian intellectuals continually strive to authenticate the
earlier policies of Kashmir's special privileges and are vehemently opposed
to the repeal of Article 370. They refuse to address the issue of the
temporary nature of the Article as originally written, and some actually
insist that the earlier provisions of the Article should be reinstated. They
also do not want to yield any special privileges still provided by Article
370, which are clearly damaging to the principle of federalism. They claim
that the land ownership provision of Article 370 is good, since it appears to
protect the beauty of the Kashmir environment, even though zoning laws and
other means of federal jurisdiction could accomplish this objective more
effectively.

Article 370 issues thus present both a crisis and an opportunity in the
present situation of dispute over Kashmir. The special status and privileges
of the State of Kashmir prevent its meaningful governance and effective
protection by the federal government of India at a time when its land,
beauty, and citizens are being terrorized and brutally evicted. The proposed
self-determination of Kashmir is an oxymoron when legal landowners have been
forced to leave the State and others are forbidden to buy the land or even to
safely visit their homeland.



Copyright © Ashok Chowgule, 1998

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