A case challenging the constitutional validity of J&K’s Resettlement Law, which comes up for hearing in the Supreme Court on Tuesday, will be closely watched for the stand taken by Governor Satyapal Malik’s administration. The law has been pending before the Supreme Court for over three decades. A bench of Chief Justice Ranjan Gogoi and Justice S K Kaul heard the case on Friday, during which the J&K government sought an adjournment.
The reason for the focus on the Resettlement Law case is the apprehension among J&K’s political parties that, like in the case related to Article 35A (the provision that empowers the J&K legislature to define “permanent residents”), the Governor’s administration would “dilute” the stance of successive state governments in the court.
The J&K Resettlement Bill, introduced on March 8, 1980 by senior National Conference leader Abdul Rahim Rather, had pitted the then NC government against the Congress government at the Centre. While both houses of the J&K legislature passed the Bill in April 1982, then governor B K Nehru returned it for reconsideration. When the Bill was passed again by both houses (by now Farooq Abdullah was CM), the Governor had to give his assent.
However, then president Giani Zail Singh sent this law for a presidential reference to the Supreme Court to seek the court’s opinion regarding its constitutional validity. The case remained pending with the court for almost two decades. Finally, a five-member constitutional bench led by then CJI S P Barocha returned it unanswered on November 8, 2001. Subsequently, the Jammu-based Panthers Party challenged the law before the SC. It’s this case that is coming up for hearing Tuesday.
The Jammu and Kashmir Grant of Permit for Resettlement in (or Permanent Return to) the State Act, 1982, provides “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.
“Lots of people were forced to migrate and take shelter across the border because of the communal violence, especially in Jammu. Don’t they have right to return to their homes,” Rather, who had moved a private member’s Bill under the Sheikh Abdullah government in 1980, told The Sunday Express.
Panthers Party’s Bhim Singh, who is challenging the law in court, says he was in the Congress when the Bill was passed and he was the “only MLA to vote against it”.
“The matter again got public attention in 2001, when the Supreme Court refused to intervene. Subsequently, I got it challenged in SC. I told the court that in Pakistan, (for those who fled) it is mandatory to go through two months’ arms training. We will be inviting trained Pakistani soldiers to kill us all,’’ he said. “Besides, people who return will reclaim property. This will lead to serious law and order problems,” he said.
Rather, however, said the law is based on provisions of the Indian Constitution and the J&K Constitution. “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. Similarly, the Indian Constitution’s Articles 5 and 7 have a proviso that people who migrated to Pakistan can return under a law of the legislature. The only condition was that it needed a law and we did that.”
“It took the Supreme Court 19 years to take a decision on the presidential reference. And when it did, another PIL was filed against this law immediately. The case has been hanging for almost 36 years now,’’ he said, adding that successive governments at the Centre “unnecessarily politicised it”.
“In the 1983 (Assembly) polls, Indira Gandhi turned it into such a communal issue that the Congress swept Jammu, winning 26 seats… in the same manner as the BJP in the last elections,’’ Rather said, adding that the Governor’s administration would do a “huge disservice to the state” if it changed the stand taken by successive state governments in Supreme Court. “In fact, they shouldn’t involve themselves in such major issues and rather wait for the new government to be elected,” he said.
BJP’s chief spokesperson in J&K, Sunil Sethi, however, said the law would “open the floodgates of people coming from across the border and pose a real security threat”.
“Successive governments in the state have been supporting the law because the state was headed by Kashmir-centric parties and it suited them,’’ he said.
On the Governor-led administration’s position, Sethi said, “The Governor is a constitutional head and he has to take decisions… in a pragmatic manner, keeping the security of the state in mind.”
Explained: Why this case will be closely watched
The J-K government’s stand in the Supreme Court on the Resettlement Law case, which has been pending in the apex court for over three decades, will be closely watched since the regime has taken several sensitive decisions since Governor Satya Pal Malik dissolved the Assembly last month. Earlier, the state administration had ordered the takeover of the J&K Bank to make it a PSU; repealed the Roshni Act, a decision expected to affect Gujjar and Bakerwal communities in Jammu province; and cleared an amendment of the J&K Protection of Human Rights Act.