December 11, 2018 3:56:57 am
On Tuesday, a challenge to an Act popularly known as the “Jammu & Kashmir resettlement law” has been listed for hearing by a Supreme Court Bench headed by Chief Justice of India Ranjan Gogoi. What is the law, and why has it been challenged?
The Jammu & Kashmir Grant of Permit for Resettlement in (or Permanent Return to) the State Act, 1982, was passed by the Assembly to “provide for regulation of procedure for grant of permit for resettlement in or permanent return to the State of the permanent residents” and their descendants who had migrated to Pakistan between March 1, 1947 and May 14, 1954.
Mass killing of Muslims in Jammu in 1947 and its ramifications are the main reason why the law was introduced. While there are no official figures, British historian Alex von Tunzelmann writes in Indian Summer that “more or less the entire Muslim population of Jammu, amounting to half a million people, was displaced” by then. In Being the Other, Syed Naqvi quotes The Statesman editor Ian Stephens on the massacre of Muslims in Jammu; Horace Alexander’s 1948 article in in The Spectator puts the number killed at 200,000; a 1948 report in The Times of London states “2,37,000 Muslims were systematically exterminated — unless they escaped to Pakistan along the border — by the forces of the Dogra State headed by the Maharaja”.
The Bill was introduced on March 8, 1980 by National Conference leader Abdul Rahim Rather and became law on October 6, 1982. It pitted the NC government against the then Congress government at the Centre. Both Houses of the state legislature passed the Bill in April 1982 but Governor B K Nehru returned it for reconsideration that September. Amid the Congress’s opposition, the Bill was again passed by both Houses, and this time the Governor gave assent.
But then President Giani Zail Singh had already sent a presidential reference to the Supreme Court seeking its opinion regarding the law’s constitutional validity. The case remained pending for almost two decades until November 8, 2001, when a five-member Constitution Bench led by then CJI S P Barocha returned it unanswered. Later, Jammu-based Panthers Party challenged the law in the SC.
Rather, who moved the Bill during Sheikh Mohd Abdullah’s tenure, said about the challenge: “How is it unconstitutional? Section 6 of the J&K Constitution has a provision for those who were stuck in areas that became Pakistan in 1947, saying they can return under a resettlement law enacted by the state legislature. The Indian Constitution’s Articles 5 and 7 too permit it. There is a provision that those who migrated to Pakistan can return under a law of the legislature. The only condition was to pass a law, so we did that.”
Pathers Party founder Bhim Singh, a lawyer, has represented the party challenge in the SC since 2002. Formerly a Congress MLA, he said he was the only party member who voted against the Bill. It was after he met Governor Nehru and apprised him of a security threat the state would face if he cleared the Bill, Singh said, that the Governor sent the Bill to President with a note citing his reasons for refusing to give assent. When the Supreme Court in 2011 refused to intervene on the presidential reference, saying it has already become law, Singh got it challenged through then Panthers Party general secretary Harsh Dev Singh, an MLA. “I told the court that in Pakistan, it is mandatory for everybody to undergo two months’ military training before taking up any job. Through this law, we will be inviting trained Pakistani soldiers,” he said. “Apart from this, those people on return will reclaim property including agricultural land allotted to refugees from Pakistan-occupied Kashmir. This will lead to law and order problems,” he said.
Where parties stand
While NC and PDP support the law, the BJP and Congress oppose it. BJP chief spokesperson in J&K Sunil Sethi said “it will open the floodgates for people coming from across the border and will be a security threat”. “While the Centre too has opposed the Bill in the Supreme Court, the state government was supporting it because you had a state government headed by Kashmir-centric parties and it suited them,’’ he said. The state is now under Governor’s rule. When it was pointed out that the Governor is a nominee of the BJP-led Centre, Sethi said, “The party is not ruling the state. Governor is a constitutional head and he has to take decisions…. take decisions in a pragmatic manner, keeping the security of the state in mind, so the state government should also oppose it.”
Within J&K’s major political parties, there is an apprehension that the Governor’s administration would “dilute” the stance of elected state governments that have defended the law in court. They look at a precedent. In the case relating to the challenge to Article 35A of the Constitution, which empowers the J&K legislature to define “permanent residents”, an all-party meeting in Srinagar in September questioned the stance taken by the Governor’s administration before the Supreme Court and sought the replacement of then additional Solicitor General (now Solicitor General) Tushar Mehta who had taken the same line as the Centre while representing the state government in the case. Subsequently, NC and PDP boycotted local body polls in protest. These parties are apprehensive whether the Governor’s administration will again take the Centre’s line. They argue that, as J&K is under direct central rule, the Governor’s administration cannot change the stance of earlier elected governments and must leave such a decision to next elected state government.
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