The argument that the new laws are intended to spur investment and boost growth is spurious; more so after special rights and privileges were revoked, the state was downgraded to union territories and its people and political leaders were shut out of democratic space
Prasanna Mohanty | November 2, 2020 | Updated 20:18 IST
With the gazette notification of October 26, 2020 - "Union Territory of Jammu and Kashmir Reorganisation (Adaptation of State Laws) Fifth Order, 2020" - the ministry of home affairs (MHA) has drastically changed land laws in the union territory of J&K, allowing outsiders to own land and automatic change in land use. Apparently, this is to push investment and growth in the embattled region.
It was, however, a unilateral, undemocratic, and sudden move that is more likely to breed mistrust and intensify conflict. Had the central government been honest and serious about its intent to bring prosperity to the region, it would have consulted the stakeholders - mainly the people and political parties of J&K. There was no debate inside or outside the Parliament either.
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It is a grim reminder of the sudden revocation of Article 370 and Article 35A in August 2019 that granted special rights and privileges to the erstwhile princely state of J&K, which had spurned Pakistan and merged with India 73 years ago, and its downgradation into two union territories. Neither had happened before. Every time a state was bifurcated new states were created (Chhattisgarh, Jharkhand, Uttarakhand, and Telangana).
These moves were followed up by shutting down the entire territory, forcing people into their homes for most part of the day and night, and arresting non-BJP political leaders (some charged under stringent Public Safety Act). When a year later, some of the arrested leaders were released, it did create a flicker of hope for the restoration of democracy only to be dashed by this October 26 notification.
The move raises many questions, not the least because the constitutionality of revoking Article 370 and Article 35A is pending before the Supreme Court (SC), but before that, here is what the October 26 notification changed.
Allowing outsiders to own land in J&K
With one stroke, the gazette notification amends several land-related laws of the erstwhile state and repeals a lot more, the full implication of which will take time to become clearer. What is obvious is that the amendments will allow outsiders to access J&K's land, both agricultural and non-agricultural, which was meant only for permanent residents earlier.
One set of amendments has been made to The J&K Development Act XIX of 1970 to make outsiders eligible for land allocation under "economically weaker sections" and "low-income group" categories by deleting "permanent residents" from the definition of these categories of beneficiaries (Section 2). The same has been done for disposing of government land (acquired for industrial and commercial purposes, but not used) by deleting "permanent residents" from the beneficiaries in Section 17.
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The amendments allow acquisition of land declared "strategic areas" for military purposes and extend the central law governing land acquisitions - The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act of 2013 - for industrial and other developmental projects.
The amendments also allow automatic change in land use (in Section 11 introduced) once the "master plan" and "zonal plan" are finalised. The need for approval under the J&K Agrarian Reforms Act, 1976 and J&K Land Revenue Act, Samvat 1996, or any other such law for change in land use has been dispensed with.
These amendments will impact land in both urban and rural areas.
Allowing outsiders access to agricultural land in J&K
Another set of amendments to The J&K Land Revenue Act XII of 1996 throws open agricultural land to outsiders.
Section 133 H, introduced through amendment, bars transfer of agricultural land to "non-agriculturist" except on grounds of sale in decree of courts, mortgage, gift, etc., but provides many exceptions.
It allows land transfer: (i) to agriculturists, inside or outside the territory (ii) to any "category of persons as may be notified by the Government from time to time" as "agriculturist" (iii) to any government, a company or a corporation or a Board "established by or under a statute and owned and controlled by the Government or a Government Company" and (iv) to non-agriculturist "by way of sale, gift, exchange or mortgage or for such agreement on such conditions as may be prescribed" and also for "lease of land or any other arrangement for entering into a farming or production agreement...for...promotion of agriculture and improvement of land".
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There are many other such provisions: (a) Section 133 I allows agriculture land transfer to public trusts for charitable purpose (b) Section 113 J allows agriculture transfer for promotion of health and education purposes and (c) Section 113 K allows agriculture for industrial, commercial or housing agricultural purpose "or any other public purpose".
Outside of these laws, The J&K Agrarian Reforms Act XVII of 1976 has been amended. Section 28A allows transfer of land ownership only be to "Government or its agencies and instrumentalities". ("Government" in these cases means the central government.) It also says there is no bar on entering into contract farming under the Land Revenue Act, Samvat, 1996 (Act No. XII of Samvat 1996).
Any illusion that these changes in land ownership and use are meant for the development of J&K or bring prosperity to the people of the union territory were dashed by Uttar Pradesh Chief Minister Yogi Adityanath on October 22 when he told an election rally in Patna that, "Earlier, a person from this part of Bihar could not even think of owning property in Kashmir. The Congress had put such a system in place. But Narendra Modi and Amit Shah changed all that. Article 370 has been scrapped and people now have a license to purchase and own property in any part of Kashmir".
This is not something new. Social media and public conversations reverberated with "marry Kashmiri girls" and "buy land in Kashmir" soon after Article 370 was revoked, with a BJP legislator publicly declaring his help in realising such aspirations.
Such frivolity on part of the ruling dispensation is more likely to breed mistrust and endanger national security, rather than bring development and prosperity to the people of the region.
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Many states enjoy special rights and privileges
There is nothing extraordinary about Article 370 or Article 35A.
Contrary to popular belief, special rights and privileges on land ownership exist across India to protect communities, mainly tribals and non-tribals living in forests and hilly areas to prevent their land alienation. No outsider, not even a non-tribal of the same state, is allowed to buy their land.
Article 244 bestows special rights and privileges on the Fifth and Sixth Schedule areas by giving extensive powers to village, district, and regional councils to decide ownership of land, use and transfer of land and collect land revenue. Such rights privileges go beyond land to include all natural resources like forests, forest produce, and minor minerals in their areas.
There are special statutes too. For example, for the Fifth Schedule areas, The Provisions of the Panchayats (Extension to the Scheduled Areas) Act of 1996 (PESA) and the Forest Rights of 2006 give overriding powers to village councils over all other laws of the land. Such areas are spread across the tribal belts of Gujarat, Jharkhand, Chhattisgarh, Himachal Pradesh, Madhya Pradesh, Maharashtra, Odisha, Rajasthan, and Telangana.
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While the PESA of 1996 gives a host of rights to tribals to manage their life and natural resources without any administrative and legal interference from outside, the Forest Rights Act of 2006 bars land alienation under any law unless the rights of forest-dwelling communities (both tribals and non-tribals) over their forests and forest land are decided first. No emergency power under any land acquisition law of the Centre or state is applicable in these areas.
Ironically, these laws were brought in response to Left-wing militancy as a part of a two-pronged strategy to fight it: (i) sustained security operations to flush out Maoists and (ii) effective governance and rapid development. Similar strategies have been adopted in the Sixth Schedule area as well.
The Sixth Schedule gives extensive powers to constitute autonomous district and regional councils in Assam, Meghalaya, Tripura, and Mizoram with powers to decide on land, forests, and other natural resources.
The Constitution also has Article 370 like provisions for some of these states in the northeast region. Article 371A gives all powers relating "ownership and transfer of land and its resources" to the state of Nagaland and no central law is applicable here unless the state legislature decides so.
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Article 371G gives similar power to Mizoram to decide "ownership and transfer of land".
It may come as a shock that no outsider, even if Indian, can even enter Arunachal Pradesh, Nagaland, and Mizoram without written permission from these states. This permission is better known as Inner Line Permit (ILP), which allows entry for a specified period, not beyond that.
The special status granted to the erstwhile state of J&K under Article 370 and Article 35A is no match to all these rights and privileges in the Fifth and Sixth Schedule Areas.
Wonky approach to security
The entire official approach to militancy, which the J&K has witnessed for many years, has been wonky in recent decades; marked by a lack of long-term strategies, clear vision, and consistency in approach.
Chhattisgarh, under the BJP leader Raman Singh, outsourced the fight against Left-wing extremism to tribals, which led to a civil war, massive internal displacement, and a movement called Salwa Judum (peace march or people's resistance to Maoists). Tribal youths belonging to the Koya community were armed and allowed to fight the Maoists.
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In 2011, the Supreme Court (SC) strongly indicted the state government for abdicating its constitutional responsibility, violating constitutional principles by outsourcing its job, and disbanded the Koya Commandos.
The approach to the decades' long Naga insurgency is different. The latest chain of events begins with the 1997 ceasefire and subsequent talks with leading rebel Naga group NSCN (I-M). It did not achieve much but peace prevailed. All of a sudden, in 2015 the Centre sprang a surprise, declaring that a Framework Agreement had been signed for "final settlement" but its content was kept secret. It remains secret even now.
A Parliamentary Standing Committee examined the issue and its report was tabled in the Parliament in July 2018. It throws some light on it: "In 2015, the government reached an understanding with the NSCN (I-M), which agreed for a settlement within Indian federation, with a special status...that boundaries of states will not be touched. Instead, some special arrangements would be made for the Nagas where they are."
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The Parliamentary panel observed that since any final agreement would impact the Naga-inhabited areas of Manipur, Arunachal Pradesh, and Assam "any agreement that may be finally arrived at must allay the fears of the stakeholders in these States and the State Governments must be kept abreast with the emerging dynamics of the talks".
Clearly, that has never been the case. Manipur was the first to erupt in protest when the 2015 Framework Agreement was announced. The central government's obsession with secrecy, so uncharacteristic of a democratic polity, endures.
As negotiations with the Naga rebels began to fall apart in the past few months, the NSCN (I-M) leader and main negotiator of the Naga rebels Thuingaleng Muivah threatened in October 2020 to leave peace negotiations and also leave the country. In a TV interview, he insisted that the Nagas would never become a part of the Indian union nor would they accept India's constitution.
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Thuingaleng Muivah is the 'M' of the NSCN (I-M); the 'I', Isak Chisi Swu, died in 2016. Both broke away from the parent National Socialist Council of Nagaland (NSCN) in 1988.
The approach to J&K is very different even though until June 2018, the central government and the BJP had no qualms about running the state as a junior partner of the Mehbooba Mufti-led People's Democratic Party (PDP) for two years.
Then all of a sudden, the BJP pulled out without a warning, leading to fall of the state government and imposition of the President's Rule. A year later, in August 2019, the MHA dropped the bombshell to deny special rights and privileges to the very same people.
However, the drastic change in land laws, notified on October 26, 2020, is not applicable to Ladakh, the second union territory carved out of J&K. Given the fact that J&K has been at the centre of seven decades of proxy war with Pakistan, it would be wiser to desist from moves that are more likely to aggravate conflicts and endanger national security.
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