Srinagar: Using the J&K Reorganisation Act, 2019, the BJP-led government at the Centre has scrapped a 37-year-old law that permitted the return of J&K residents who fled to Pakistan from 1947 to 1954.
The Jammu and Kashmir Grant of Permit for Resettlement in (or Permanent Return to) the State Act, 1982, which gave legal cover allowing J&K residents and their descendants who had moved to Pakistan from March 1, 1947 to May 14, 1954 to return to India, was one of the 153 state laws and Governors’ Acts abolished under the J&K Reorganisation Act.
The Act was passed by parliament on August 5, after the Government of India read down Article 370 of the Constitution.
The mass killing of Muslims in Jammu in 1947 and its ramifications were the main reason why the original law was introduced when the J&K government was led by Sheikh Muhammad Abdullah. Though there are no official figures, many media reports from 1948 put the number of Muslims killed at 2-2.5 lakh.
According to The Times of London, “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 … This happened in October 1947, five days before the Pathan invasion and nine days before the Maharaja’s accession to india.”
“Since the Resettlement Act has been abolished, the doors have been shut for the return of these J&K refugees from Pakistan,” said Abdur Rahim Rather, senior National Conference (NC) leader and former J&K law minister. “It is a closed chapter now.”
Rather had in March 1980 introduced a private member Bill in the J&K assembly which laid out a comprehensive roadmap for the return of these J&K residents from Pakistan. The Bill was, however, sent to a nine-member select committee of the J&K assembly after opposition from some parties. Following the committee’s nod, it was cleared by the legislature.
The then-governor, B.K. Nehru, however, returned it on September 18, 1982, seeking “reconsideration”. Both the houses of the legislature again passed the Act, which came to be commonly known as the “Jammu & Kashmir resettlement law” on October 6, 1982, without any change, despite opposition from the Congress at the Centre.
Though the governor gave his mandatory ascent on the second occasion, the legislation was sent under a presidential reference to the Supreme Court under provisions of Article 142 (1) of the Constitution by the then-President Giani Zail Singh, seeking opinion “as to whether the Bill or any of the provision thereof, if enacted, would be constitutionally invalid”.
As per the contents of the Act, any person who, before May 14, 1954 was a J&K state subject of class I or class II, and who had migrated after March 1, 1947 to the territory now included in Pakistan, may himself or by his relative who is a permanent resident of the state, make an application before the “competent authority” with an expression of a desire to return to J&K.
The authority, if satisfied that the person desirous of resettlement in or permanent return to the state has a bona fide intention for such resettlement or permanent return to the state and was a state subject of class I or class II before May 14, 1954 and had migrated after March 1, 1947 or is a descendant, wife or widow of such state subject as the case may be, shall recommend such person to the government for grant of a permit for resettlement in or permanent return to the state.
The prospective returnees were also required to fill a form of “Oath of Allegiance” to the Constitution of India and the J&K Constitution.
NC’s defence and challenge in top court
The Act led to a deepening of political faultlines in J&K. While the Bhartiya Janta Party (BJP), Congress and the J&K National Panthers Party (J&KNPP) opposed it tooth and nail, the NC, Peoples Democratic Party (PDP) and other smaller Kashmir-based parties supported the return of the J&K migrants.
The NC defended the Act on the grounds that it was in pursuance of section 6 of the J&K Constitution and the second proviso to Article 7 of the Indian Constitution. It also cited the Delhi Agreement of 1948 wherein a “specific the provision” was included for “ensuring rights and privileges of citizenship to those Kashmiris who went to Pakistan in wake of the disturbances of 1947 or in fear of them”.
“There is clear mention about the return of these J&K residents in the Delhi Agreement. A provision was also kept in the Constitution of J&K and Constitution of India to pave way for their return,” Rather told The Wire. “Both the Constitutions had empowered the J&K Assembly to make a law for the return of these migrants. There is also a provision in the Constitution of India which says that upon their return, these migrants will get rights of Indian citizens and, under the J&K Constitution, they will get rights of J&K citizens,” said Rather.
The Act was challenged by the JKNPP in the Supreme Court in 1982. Atal Bihari Vajpayee, who was the BJP’s president then, also challenged the Act in court. The case remained pending for the next 19 years until the JKNPP’s Harshdev Singh filed a petition again.
The case was considered by the constitution bench of the apex court, but it returned the reference to the president with three words: “Returned, respectfully, unanswered”.
The same year, the apex court, however, ordered a stay on the operation of the Act.
During the hearing on August 16, 2016, the top court indicated that it may refer the matter to a constitution bench if it finds that some issues needed interpretation of the Constitution. But the court observed that people of Jammu and Kashmir who migrated to Pakistan from 1947 could be considered for their return but not their descendants.
Not a single application
As the case went on, in December 2018, the apex court asked the J&K government to furnish details of the number of applications it received from original migrants from J&K to Pakistan, expressing their intent to resettle in India.
The J&K government told the court on January 7 this year that it had not received any application for resettlement under the Act from any state subject who migrated to Pakistan between 1947 and 1954.
“The ‘Competent Authority’ envisaged under Section (2(a) of the J&K Grant of Permit for Resettlement (or Permanent Return to) the State Act, 1982 was never notified by the state government. As such, no application could be received under the Act,” the government said in an affidavit filed in the court.
The Centre, too, opposed the Act in the court saying the decision was “fraught with serious security implications and would go against the Citizenship Act.”