Expecting stiff resistance from the dissidents, successive state governments exiled thousands of persons since October 1947. The detested process stopped in early 70s. Massive migration was witnessed in the Jammu region following the November 6, 1947 massacre.
Realizing his mistake, Sher-e-Kashmir introduced legislation in the assembly in 1980 which was later passed. The legislation came to be known as Re-settlement Act. Sensing the gravity of the legislation, the government of India referred it to the Supreme Court for opinion which returned it after twenty-years without any changes or comments. However, the communal forces expressed serious reservations and one among them approached the Supreme Court. The apex court stayed the implementation of the Act. The petition has not come up for hearing for the past seven years and the state government, which is duty bound to defend the legislation is watching like a mute spectator.
When the Supreme Court returned the legislation in 2002, people holding evacuee property in Jammu came out on the streets. The government had to assure them of their comfortable stay in the property which they hold but do not own. The legislation has far reaching political consequences. As per the provisions of the Delhi Agreement of 1952 all those people who, prior to partition, were permanent residents of the state and migrated to areas which come under Pakistan will be considered state subjects, if they want to return. This is reflected even in the Kashmir constitution and in the Indian Constitution. This means that the people who choose to come back will not only claim their property but will also exercise their right to vote if at all a referendum is ever held for Kashmir resolution. It will also change the demographic complexion of Jammu region–something which vested interests do not want to happen at this crucial juncture of state’s history.
The Act evoked severe reaction from communal elements when the then Chief Minister, Dr Farooq Abdullah announced that he will implement the legislation. The state government also contested the petition in the Supreme Court strongly thus sending wrong signals to concerned quarters. A legal battle ensued.
The petitioners submitted that the Chief Minister’s announcement had caused apprehensions in the minds of the people of the State that the Act would be misused by militants and terrorists to settle here permanently. If implemented, more than two lakh Pakistanis might enter the State and settle here. Even Taliban who had been driven out of Afghanistan with fraudulent certificates could settle in the State. Hence the Act should be declared illegal and ultra vires the basic structure of the Constitution.
The state government in its counter submitted that the Act only provided for a mechanism for the settlement of permanent residents of the State of Jammu and Kashmir who were deemed to be citizens of India upon their return from Pakistan.
It further said that though Kashmir remained an integral part of India and the people of Jammu and Kashmir were governed by citizenship rules on a par with the rest of the country, the Act did not infringe or abridge any citizenship law of the country.
The Act would not threaten the unity of the country in any manner and it was a reflection of the genuine aspirations of the people of the State, the counter said and sought vacation of the interim stay.
The Bench granted two weeks time to the petitioners to file its counter and adjourned the proceedings. Since then nothing has moved.
The Act also created a political storm in the state. Mahbooba Mufti, president of the ruling People’s Democratic Party, while talking to news men tried to play it safe by shifting the responsibility to New Delhi. Mahbooba issued this statement when her party ruled the state.
‘‘The Resettlement Act does not deal with property but with citizenship rights. So anybody who wants his or her property back needs to have their citizenship first,’’ she says. ‘‘We don’t have any say in it because the matter is with the centre.’’
According to JK High Court Bar Association chairman Mian Abdul Qayoom, the Supreme Court, under Article 32 of the Indian Constitution, has the power to scrap the law if it thinks it violates the fundamental rights of people.
‘‘But the right to life also says that one should be allowed to live in his own land. Even if Supreme Court decides in favour of the PIL, we can’t deny property rights to its rightful owners,’’ he said. ‘‘This is property held under trust. How can you deprive its rightful owners of it? Under the JK constitution, the right to property is a fundamental right. This right is available even to foreigners.’’
The response of the government of India and the communal elements has forced the people, once again, to question the credibility and image of the state legislature. If a law passed twice by the JK Legislative Assembly could not be implemented, the legislators need to do some serious thinking.
The petition is pending adjudication in the apex court. The state government seems in no mood to contest the petition any more. The state government has to bear in mind that it shall not do any favour to the people by pursuing the petition. By implementing the Act, it shall wash off some of its sins. And last but not the least, very few people migrated in the post-partition era voluntary. The migration has been overwhelmingly enforced and involuntary.
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