Rights

The Second Sale Deed of Jammu and Kashmir

Several other states like Himachal Pradesh, Sikkim and Mizoram enjoy similar protections in the form of several constitutional or statutory safeguards.

The recent gazette notification, issued by the Ministry Of Home Affairs (MHA), has in one fell swoop, removed all preconditions for the purchase and sale of land in the Union territory of Jammu and Kashmir.

While the notification has created an uproar in Kashmir, with the Peoples’ Alliance for Gupkar Declaration (PAGD) openly castigating the notification as unacceptable and nefarious in nature, Jammu too has expressed grave concerns about this move by the Centre.

Former chief minister Omar Abdullah in an interview went as far as to say, “This adds to the fear of demographic changes. Today’s order has made it clear that they want to wipe out the character of a Muslim majority state. The people of Jammu would be more unhappy with this land ownership system. Before it impacts the people of Kashmir, it will impact people in Jammu.”

While repealing the J&K Land Alienation Act, 1938 and Big Landed Estate Abolition Act, 1950, the notification makes amendments to the Land Grants Act, 1960 and the Agrarian Reforms Act, 1976 by removing the “Permanent Resident” requirement for the sale and purchase of land in J&K. Repealing the landmark Big Estates Abolition Act was a rather ironic move as the Act, which conferred land rights to the tillers in Jammu and Kashmir, was believed to be one of the most progressive pieces of land reform ever initiated in India.

The prerequisite of being a “state subject” for the sale and purchase of land was the result of a long and pressing demand by the people of Jammu and Kashmir, which the erstwhile maharaja had agreed to, keeping in mind the disadvantaged socio-economic backwardness of the local populace in the region. By scrapping this requirement, the Centre has added insult to the injury already inflicted on the people in the state.

Also read: The New Land Ownership Laws May Unite Kashmiris Across All Territories

How the demand for state subjects arose

The incorporation of these protectionist provisions can be traced back to an agitation led by Kashmiri Pandits, who were far more educated and politically conscious in comparison with the Muslim majority community in the princely state of J&K.

The Kashmiri Pandits were opposed to the hiring of Punjabis in the state administration, a trend which had been initiated by the first maharaja of the state, Gulab Singh, when he had appointed a Punjabi khatri named Dewan Jawala Sahai to an important post in his government. Dewan Sahai later went on to become prime minister under the Dogra rule.

During this time, Jammu and Kashmir recorded a massive influx of Punjabis, who started to occupy almost all the high ranking positions in the Dogra government. As their sway in the administrative setup increased, extensive land grants were extended to the Punjabis as they were placed on important chairs of trusts. Cementing their influence in areas of authority and occupation of land, the Punjabis began to dominate commerce as well.

A shikara in Kashmir’s Dale Lake. Photo: AzmanJumat/Flickr, CC BY 2.0

Concerned by this wave of immigration and fearing relegation to the margins, Kashmiri Pandits raised a banner of revolt. Their agitation was actively supported by the Hindu Dogras of Jammu as they were the first to reap the benefits of modern education, long before Muslims in the Valley became politically conscious.

While in Jammu, the agitation was more forceful and sprouted into a full-fledged Dogra vs Punjabis controversy, in Kashmir, the Kashmiri Pandits managed to acquire subtle assistance from the British officers in their opposition to ‘outsiders’. After a long and arduous agitation, Maharaja Hari Singh introduced the state subject law on April 20, 1927. The definition of the term “state subject” was a broad one, which conferred equal representation to all the sections of the population be it the Kashmiris, Dogras or Punjabis.

It was this state subject law which manifested in the form of ‘permanent residents’ after Jammu and Kashmir’s accession to India and continued to protect the land and labour rights of the local population. The post-independence period also ushered in new challenges for the local populace which found itself caught in a conflict and earned the unwanted sobriquet of being a  “nuclear flashpoint”.

Also read: Anyone From Anywhere Across India Can Now Buy Land in J&K

The prevalence of conflict further buttressed the case for uninterrupted protection of jobs and land rights, as had been granted by the maharaja, keeping in mind the disadvantaged socio-economic position of the state vis-à-vis the rest of the country. The removal of the protection fo land rights that people in the state previously enjoyed might spell doom and the local population will not be able to fend off the big land sharks from outside Jammu and Kashmir.

Constitutional safeguards other states enjoy

Jammu and Kashmir is not the only state which confers protection to the land and jobs of the local populace. Several other states also enjoy similar protections in the form of constitutional or statutory safeguards.

The state of Himachal Pradesh, under several laws, restricts the sale and transfer of land to its ‘bonafide residents’ – those who have resided in the state for a period of 20 years. However certain exceptions can be made by the state while making land transfers to outsiders, considered on a case-by-case basis.

In 2019, the Supreme Court, while deciding a petition on the state of Meghalaya, ruled that the indigenous population have full rights over their land and resources and recognised their sole right to grant permission for mining. Like Meghalaya, several other states, under the Sixth Schedule of the constitution, enjoy similar protections with regard to their land rights.

Similarly, under Article 371-F of the constitution, the people of Sikkim enjoy discretionary powers with regard to the purchase of the property in the state. The laws are even harsher in the tribal areas of Sikkim, where only tribals can purchase the land falling in these belts. Once again, exemptions can be made for the establishment of designated industrial belts for regulated penetration of benefits of industrialisation.

In Nagaland, the people with protections derived from Article 371-A are free to determine the conditions of who can and cannot purchase or transfer land other than its ‘indigenous inhabitants’. Likewise, under Article 371-G of the constitution, the Mizoram legislative assembly is conferred with special privileges to restrict and regulate the ownership and transfer of land rights in the state.

Also read: Modi Govt’s New Land Policy for J&K Overturns 7 Decades of Land Reform

Arunachal Pradesh, Jharkhand and 10 other states falling under the Fifth Schedule of the constitution have been bestowed with discretionary powers with regard to imposing restrictions on the transfer and purchase of the lands in the respective states keeping in view the local tribal populations.

Having said this all, even the newly created Union territory of Ladakh is being considered for special status under the Sixth Schedule, thereby extending constitutional safeguards to its culture, jobs and land ownership rights. All these aforementioned instances provide ample breeding ground for the population of Jammu and Kashmir to be concerned about the selective manner in which the Centre has removed these protections while others continue to enjoy them uninterruptedly.

A jawan stands guard during the shutdown in Srinagar on October 3. Photo: PTI

Backtracking on promises

The Centre has argued that these safeguards were roadblocks for peace, progress and development in Jammu and Kashmir.

The Central government has also maintained that the removal of these “impediments” would encourage investment, this even as it, in the same breath, it continues to support these safeguards in states which enjoy constitutional safeguards under Article 371 and several other provisions.

The Centre had previously, on multiple occasions, assured the people of J&K that their jobs and land rights would be protected at any cost and that the state would have a better domicile policy than anywhere else in the country.

Immediately after Article 370 was revoked, PM Modi promised the people of J&K that they would witness the dawn of a new politics, prosperity and development and every commoner in J&K expected him to stick to his words. Propriety and principled statecraft demand that New Delhi refrain from forcing its vision of development on the newly created Union territory as this might lead to instability again, while all other priorities take a backseat. The Centre should instead conduct legislative assembly elections and let people have a say in their future.

More than two centuries ago, in 1846, Maharaj Gulab Singh executed the Treaty of Amritsar with the British East India Company, whereby Kashmir was sold to him in lieu of seventy five lakh nanakshahi rupees and he carved out the princely state of Jammu and Kashmir. This treaty is infamously remembered as the “Sale Deed” of Kashmir. Let us hope the Centre rethinks what locals will see as the second sale deed of J&K, where the inhabitants of the land have no say in shaping their destinies.

Basit Amin Makhdoomi is a lawyer at the Jammu and Kashmir high court. He tweets at @BasitMakhdoomi.