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Above: The then Prime Minister, Dr Manmohan Singh flagging off the Srinagar-Muzaffarabad Bus in Srinagar on April 7, 2005. The then Chairperson, National Advisory Council, Sonia Gandhi, the then Union External Affairs Minister, K Natwar Singh, the then Union Minister for Parliamentary Affairs and Urban Development, Ghulam Nabi Azad and the then Chief Minister of Jammu & Kashmir, Mufti Mohammad Sayeed also joined in the flagging off the Bus/Photo: PIB

Resettlement Act of 1982 paves the way for the “resettlement or permanent return” to the state of those who had migrated after 1947. This benefits Muslims, but what about others?

By Pushp Saraf

When a nearly two-decade-old petition challenging the Jammu and Kashmir Grant of Permit for Resettlement in (or Permanent Return to) the State Act, 1982, came up for hearing in the Sup­reme Court on December 11, there was a dramatic turn of events. The J&K government sought adjournment, pleading that the “matter be listed” after “the challenge” to Article 35-A of the Constitution protecting special rights and privileges of permanent residents of the state “is decided”. The standing cou­n­sel of J&K, M Shoeb Alam, in a brief three-paragraph letter, presented to the Court claimed the “case involves issues which are connected to Article 35-A”.

Senior advocate Bhim Singh, who filed the petition, opposed the adjournment and pleaded that the petition be taken up on priority. Chief Justice Ranjan Gogoi told him: “There’s a letter from the respondent requesting for ad­journment, get the other side tomorrow and we will hear you.” However, the case has now been postponed to January.

Bhim Singh told India Legal that the J&K government’s plea was “irrelevant” to the subject matter and amounted to beating about the bush. According to him, Article 35-A was a presidential order, while the Resettlement Act “is the creation of the state legislature” concerning a citizenship issue. Incidentally, J&K’s two main regional parties—the National Conference (NC) and the People’s Democratic Party (PDP) had boycotted the recent municipal polls, asking the central government to clear its stand on Article 35-A concerning rights and privileges of citizens of the state and take “effective steps” to protect them.

The fate of the Resettlement Act, commonly known as the Resettlement Bill, thus continues to hang in the balance even 36 years after its enactment. The legislation has assumed highly controversial dimensions because of its provision paving the way for the “resettlement in or permanent return” to J&K of a permanent resident who has migrated to the “territory now included in Pakistan” after March 1, 1947, or his “descendant, wife or widow”. It has raised questions whether an original resident of the state who has accepted Pakistan’s nationality can be permitted to easily resume Indian citizenship on the strength of a state law. Also, is this privilege extended to his descendants who have grown up as Pakistani citizens or wife who may have actually been a Pakistani citizen?

In the context of J&K, a sensitive matter is that while the law benefits Muslims uprooted from the Jammu region in 1947, it shows no consideration for Hindus, Sikhs and other non-Muslims uprooted from towns such as Mirpur and Muzaffarabad which are at present under the illegal occupation of Pakistan. The migration in both instances took place in identical circumstances—savage massacres triggered by communal violence.

 

At least on two occasions, this writer has been exposed to the social and political dimensions of the Bill. In 1983, there was virtually a no-holds-barred contest between Indira Gandhi and Farooq Abdullah in the assembly elections in J&K. It was the first such poll after the enactment of the Act by the legislature. Personally spearheading the campaign for her party, Indira Gandhi played on the fears of the people of Jammu region about the demographic changes the law, if allowed, wou­ld usher.

In 2004, during an interaction with civil society in Mirpur, the prosperous town of PoK, it was revealed that Pakistan had usurped the immovable assets of all non-Muslims who had to flee, unlike those of Jammu’s Muslim migrants which continue to be protected in J&K.

Sheikh Abdullah, who returned to mainstream politics after his 1975 Accord with Indira Gandhi, had moved the Resettlement Bill on March 8, 1980. Both Houses of the legislature gave their approval to it. However, then Governor BK Nehru returned the Bill on September 18, 1982 for “reconsideration” on account of, among many, the following “constitutional and other defects and deficiencies”: “Persons who may have deliberately and voluntarily migrated to Pakistan, settled there, taken Pakistani citizenship, appropriated evacuee property, served in the Pakistani civil or armed forces, fought against India or committed other treasonable acts against the country can, at any time of their choosing, return to India (and to the State) and settle here as a matter of right….not only the migrant, his wives, widows or descendants who may have been born, or may thereafter be born in Pakistan and who may never have been Indian citizens (and therefore never been ‘State subjects’—for, in order to be a State subject, one has first to be an Indian citizen) will have the right for all time to come to settle in our State.”

He added that “the Bill makes no provision for checking the antecedents of an applicant, nor, indeed, prescribes that his antecedents should be such as to satisfy competent authority that he is not likely to be a security risk, it makes it possible for spies, saboteurs and foreign agents to come and settle in our State as a matter of legal right”.

The thrust of the governor’s argument was that “the State cannot confer Indian citizenship on those who are now Pakistani citizens”. Both the Houses of the state legislature, however, again passed the Bill without any change, leaving the governor with little choice but to give his assent on October 6, 1982. Farooq Abdullah had then become the chief minister following his father’s death on September 8, 1982.

In the intervening period, President Zail Singh sent the legislation as a presidential reference to the Supreme Court for determining “as to whether the bill or any of the provision thereof, if enacted, would be constitutionally invalid”. On November 8, 2001, a five-member constitution bench headed by Chief Justice Sam Piroj Bharucha returned the bill “respectfully unanswered”.

It was following this that a petition was filed on November 27, 2001, challenging the Act, and the Supreme Court stayed it. Bhim Singh’s petition is broadly along the lines on which Nehru had returned the Bill in the first place. The NC, as the author of the bill, has always defended it as being “constitutional”. The People’s Democratic Party (PDP) too backs it to the hilt.

Nizamuddin Bhat, lawyer-turned-journalist-turned-top PDP leader, told India Legal: “This law was required and is required. One can’t deny the birth rights of people on the basis of considerations like religion. By virtue of being state subjects, they are entitled to homecoming and acquiring their property, which in any case is being looked after by the Custodian Department. Wherever rent is collected, it is deposited in the name of the original owners. Where is the problem if they come back to their own property?” Asked about the discriminatory nature of the Act as it spares no thought for those dislodged from home and hearth in the occupied territory, he opined: “We have to go by our law, our Constitution (Jammu and Kashmir Constitution).”

On the other hand, the chief spokespersons of the BJP and the Congress in J&K, senior advocate Sunil Sethi and lawyer-turned-politician Ravinder Sharma, respectively, maintain that the issue would be settled once the Parliament resolution of February 22, 1994 calling upon Pakistan “to vacate all areas of the Indian state of Jammu and Kashmir, which they have occupied through aggression” is implemented. “Once the territory is back with us, the entire issue would be solved,” Sethi argued. Sharma too says that there is “no change in the party’s stance for the time being” recalling “we had opposed the bill under the leadership of Indira Gandhi in the 1983 elections”. The two main political parties seem to sympathise with those who migrated in 1947 “against their choice”, but are unwilling to accommodate their descendants who have grown up in a different milieu under a political and administrative dispensation which has been hostile to the extent of encouraging terrorist activities against India.

There is genuine concern for migrants from Jammu. There is a Department of Evacuee Property in J&K, which is the only one of its kind in the country, looking after their immovable assets. There has been no corresponding arrangement in PoK for non-Muslims. Within J&K, the entire evacuee property is in Jammu division, one of the two administrative divisions of J&K, the other being Kashmir which was free of communal violence in 1947.

The fact that it is mainly the leaders of the Valley who are in the forefront of enacting and supporting the Resettlement Act which would affect the current demography of Jammu fuels regional tension and revives memories of the bitter past.

Like BK Nehru, another former governor, Jagmohan, had also raised questions in his best-seller, My Frozen Turbulence in Kashmir, first published in 1991. He had asked: “Could the fact of three wars—1947, 1965 and 1971—be ignored? Would not the return of the so-called Kashmiri families cause social and economic disruption and also pose a serious threat to the security of the country? Who would guarantee that spies and saboteurs do not move in? How could a Bill, which basically related to the grant of citizenship rights, be enacted by the State Legislature? How could the children of the migrants, born and brought up in Pakistan, be given Indian nationality?”

What, then, would heal the wounds of 1947? Territory first or people?

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