The politicians of Jammu and Kashmir, who are crying on the grave of the special status of the now downgraded state, did nothing to rationalise the land laws and remove misgivings, argues SAKAL BHUSHAN
Land laws in Jammu and Kashmir have always been an epitome of confusion. “Land” is a matter of State List in the 7th Schedule of the Constitution of India. All State Legislatures of the Indian Union can enact laws with respect to the subject-matter entry “land” in their respective States. J&K was no exception. But the land laws in the erstwhile State of J&K were very restrictive in nature and mired with sheer confusion (a cause of grave corruption in the Revenue Department, especially). This restriction and confusion had nothing to do with Article 370 but this was marketed by certain elements to vilify and malign Article 370. An impression was created in the whole country that Article 370 (which only defined federal relations between the Union and the erstwhile State) is the root cause of all the restrictions in the land laws in Jammu and Kashmir, and this led to its ultimate abrogation in essence on August 5 and 6, 2019. The short-sighted politicians of the erstwhile State of Jammu and Kashmir could not read between the lines and did not take any effective measures to rationalise these laws in tune with the changing times and defeat the nefarious agenda of certain elements bent upon to destroy the special status of the State by blaming these laws. These politicians, who are now crying on the grave of special status, remained busy in making mere statements on protection of Article 370 without addressing the core issues. To add fuel to the fire, they kept on issuing provocative statements challenging the Union government and asking it not to dare to touch Article 370 lest it results in spilling of blood in the streets.
As a result, not only Article 370 became the casualty divesting the erstwhile State of its special status in its federal relations with the Indian Union, but the erstwhile State was also demoted in its status and further bifurcated into two Union Territories with effect from October 31, 2019. It was the Union government’s reply to the cocooned politicians of the erstwhile State who could not visualise the writing on the wall and take corrective steps in time.
With the coming into force of the J&K Reorganisation Act on October 31, 2019, Section 4 of the Jammu and Kashmir Alienation of Land Act, 1995 Svt. prohibiting the transfer of agricultural land to a non-State Subject of J&K stood repealed. And now with the issuance of the Union Territory of J&K Reorganisation (Adaptation of State Laws) Fifth Order, 2020 on 26.10.2020, the whole of the J&K Alienation of Land Act, 1995 Svt. stood repealed, and a new Section 133-H has been inserted in the J&K Land Revenue Act, 1996 Svt. This Section enables the Government to include from time to time any category of persons (even from outside Jammu and Kashmir) in the definition of agriculturist who can acquire agricultural land in Jammu and Kashmir. A non-agriculturist (even from outside J&K) can also acquire agricultural land with permission of the Government. And there is even no requirement of permission for lease in favour of a non-agriculturist. This newly inserted Section is in fact more liberal than Section 118 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972. In Himachal Pradesh an agriculturist has necessarily to be a Himachal resident. And there is bar on even lease of land in favour of a non-agriculturist for which a special permission of the Government is required.
As far as property, other than agricultural land is concerned, the supposed bar against non-State Subjects of Jammu and Kashmir had been contained in various ailans, hidayats, irshads, orders, etc. referred to in Section 139 of the Jammu and Kashmir Transfer of Property Act, 1977 Svt. which were though not scheduled in the Act. Even an attempt made by me to obtain the same through an RTI application had failed in the past.
In Jammu and Kashmir, there have always been ‘word of mouth’ restrictions like ‘valid till marriage’ endorsement stamp on the State Subject Certificates of the J&K females which was found to be without any legal sanction by the Full Bench of J&K High Court in Susheela Sawhney case in 2002 when the then Government could not cite or produce before the court despite numerous opportunities granted to it any legal provision in support of sanctioning the said endorsement stamp. The then Government had appealed against the verdict before the Supreme Court which had to be later withdrawn by it when it could not produce any supporting provision of the law there also. In 2004, the Peoples Democratic Party-Congress Government had tried to bring legislation in the Assembly to grant sanction to such an endorsement which was an implied admission of the fact that there was in fact no such law in existence which only existed in sheer imagination and memorised in the words of mouth. Even this attempt of the then Government had failed on account of no support from the Congress legislators for fear of being perceived as anti-women. Due to numbers, the law could not have been passed without their support at the relevant time. That has been the state of affairs in Jammu and Kashmir.
Anyhow, coming back to the current topic, Section 139 of the J&K Transfer of Property Act, 1977 Svt. (with whatever obscure and mostly ‘word of mouth’ restrictions) stood repealed with the coming into force of the J&K Reorganisation Act on October 31, 2019. This paved the way for the non-State Subjects of Jammu and Kashmir including non-agriculturists to acquire such property in Jammu and Kashmir without any restriction. This is more liberal than the position in Himachal Pradesh where there is a bar on acquiring even such property by a non-agriculturist for which too a special permission of Government is required.
These changes in the law in Jammu and Kashmir have opened up the opportunities to the entire population of the country and even the foreigners (barring from a few countries) to acquire land and property in the Union Territory of Jammu and Kashmir. But the million-dollar question is: Why would anybody from other parts of the country like to purchase any property in Jammu and Kashmir? Why would anyone decide to unsettle himself from his place of settled residence and decide to settle in Jammu and Kashmir? This would be like unsettling for a settled person. What is so special here? Unless these changes are supplemented by the large scale development of J&K creating tremendous scope for employment, no one will feel the need to come and settle here. And since J&K is high on corruption which has rather become systemic and endemic in governance over the years unless this menace is tackled, no significant development can take place in J&K. It is high time for the Government of the day to come out of the rhetoric and symbolic actions and honestly speed up the development attracting investment, generating jobs, harnessing its tourism potential especially, making this place the first choice of domestic and international tourists and restoring its lost reputation of being known as the Switzerland of the East. Only then the wounded emotions of the local population of J&K (irrespective of Kashmiri and non-Kashmiri/Hindu and Muslim narrative) who have lost the special status of their erstwhile State can be healed and the meaningful objective of the legal changes can be accomplished in a true sense.
Sakal Bhushan is an advocate practicing in Delhi High Court and the Supreme Court of India