Kashmir, Kashmir land laws, Kashmir land history

The Union Territory of Jammu and Kashmir Reorganisation (Adaptation of Central Laws) Third Order, 2020, issued on October 26, practically opens up all of Jammu and Kashmir (J-K) to every Indian citizen, removes every restriction that prevented large landholdings, allows the Indian armed forces to take over land wherever they desire, and gives sweeping powers to the government to take over any land and property for “industrial” use and bring in big businesses to set up their shop.

This order repeals 12 state laws and amends 14 to further the agenda behind the abrogation of J-K’s semi-autonomy and its bifurcation into a pair of union territories, ruled directly by New Delhi through its handpicked lieutenant governors.

When India’s parliament abrogated J-K’s special status last August, it also passed the J-K Reorganisation Act, which the Indian government could make changes to within a year of implementation. That window closes on 31 October 2020. Changes proposed to the law after the deadline would have to be ratified by the Indian parliament.

The Third Order comes days ahead of that deadline, and it is unprecedentedly sweeping. It’s designed to create new facts on the ground. To understand its immediate implications, we need to look at the legal changes it brings in.

In 1950, the J-K government of Sheikh Mohammad Abdullah enacted the J-K Big Landed Estate Abolition Act which fixed a ceiling on land ownership—at 182 kanals, or 22.5 acres. All excess land was vested in the government, which distributed it among the tillers. This is why it came to be called the “Land to Tiller” reform. A ceiling was fixed on land owned by the tiller as well, at 160 kanals or 20 acres. In 1976, the J-K government brought in the Agrarian Reforms Act, which further reduced the ceiling on landholding to 100 kanals, or 12.50 acres. The objective of the 1976 law was to end the system of absentee landlordism, make landless tillers owners of the land they cultivated and of their dwellings.

These land reforms were informed by a brutal history of the exploitation and oppression of Kashmir’s Muslim majority by autocratic Hindu Dogra rulers. In 1887, Andrew Wingate, the first Land Revenue Settlement Commissioner appointed by the Dogra rulers, described Kashmiri Muslim peasants who didn’t have proprietary rights to the land they cultivated as “coolies under a management closely approximating to forced labour”. Walter Lawrence, the British civil servant who was made settlement commissioner by Dogra autocrat Pratap Singh, described the pathetic condition of Kashmiri Muslims thus: “When I came to Kashmir in 1889, I found the people sullen, desperate and suspicious. They were serfs without any rights…the system of administration had degraded people and taken all heart out of them”.

In the famine of 1877-79, the death toll among Muslims was enormous, Lawrence writes, very few Kashmiri Pandits died of starvation. Only two-fifths of the population of the valley survived the famine, Lawrence says. Wazir Punnu, a Kashmiri Pandit who was then the Dogra autocracy’s prime minister, is said to have declared that there “was no real distress and that he wished that no Musalman might be left alive from Srinagar to Rambhan [Kashmir Valley]”.

John B Ireland, an American who visited Kashmir in the mid-19 century, detailed the crushing taxes Kashmiri Muslims had to pay the Hindu Dogra autocrats in From Wall Street to Cashmere, Five years In Asia, Africa and Europe: “On the birth of every lamb the owner must pay a tax of one anna, the birth of a calf is four annas. For a marriage one rupee. A fishing boat four annas per day. Walnut trees ten annas a year for the oil, and if the crop fails, must be made up with ghee.”

Edward Frederick Knight observed the devastation caused by the system of forced labour put in place by the Dogras. “They fall on the road to perish of hunger and thirst, and, thinly clad as they are, are destroyed in hundreds at a time by the cold on the snowy passes,” he wrote of Kashmiri Muslims. “When a man is seized for this form of Begar (forced labour), his wife and children hang upon him, weeping, taking it almost for granted that they will never see him again. A gang of these poor creatures, heavily laden with grain toiling along the desert crags between Astor and Gilgit, on a burning summer’s day, urged on by a sepoy guard, is perhaps as pitiable a spectacle as any to be seen on the roads of Siberia. But these are not convicts and criminals; they are Mussulman farmers, harmless subjects of Maharaja.”

In 1922, Tyndale Biscoe wrote that “if we Britishers had to undergo what the Kashmiris have suffered, we might also have lost our manhood”.

In his book Kashmir Then and Now, GN Kaul noted that 90 percent of Muslim households were mortgaged to Hindu moneylenders and “local Muslims were barred from becoming officers in the princely state’s military forces and were almost non-existent in the civil administration”.

In 1929, Sir Albion Bannerji resigned as the princely state’s foreign and political minister after two years in the post.

In an interview to Associated Press, quoted by Sumantra Bose in his book, Sir Bannerji said he had resigned because “Jammu and Kashmir State is labouring under many disadvantages with a large Muhammedan population absolutely illiterate [and] labouring under poverty…and governed like dumb-driven cattle. There is no touch between the Government and the people [and] no opportunity for representing grievances”.

In 1941, Prem Nath Bazaz described the condition of Muslims thus: “The poverty of the Muslim masses is appalling. Dressed in rags and barefoot, a Muslim peasant presents the appearance of a starving beggar. Most are landless labourers, working as serfs for absentee landlords.”

Such bestial treatment of the Muslim majority by the Dogra autocrats, who had bought Kashmir from British imperialists for 75 thousand nanakshahi rupees in 1846, sparked Kashmir’s first popular revolt in 1931. This movement for freedom was entirely Muslim in its complexion, not surprisingly since it was the Muslim majority that was singularly oppressed by the Hindu Dogra rulers. In 1932, the Jammu and Kashmir Muslim Conference was launched to steer this movement. The Kashmiri historian Hafsa Kanjwal notes that “for the Muslim Conference, the problem of Kashmir was one where a Hindu ruler dominated over and oppressed his majority-Muslim Subjects”.

Quoting various scholars, Ms. Kanjwal says that “the exclusion of Muslims from the economic and political resources of the Hindu-led state led to a religious sensibility that informed political mobilization, and so, religious discourses became inseparable from the discourse of rights”.

History, however, would take another turn. Sheikh Abdullah, who had emerged as the leader of this movement, became close with the Indian National Congress, especially Jawahar Lal Nehru, who influenced the Kashmir leader into altering the very character of the struggle against the Hindu Dogra rule. In 1939, Muslim Conference was renamed National Conference, a move that divided the movement, with leaders of Jammu’s Muslims and an influential section of Kashmiris in the valley refusing to follow Abdullah to the “nationalist” camp.

Abdullah, meanwhile, also came under the influence of India’s leftists, and soon the National Conference started portraying the struggle of the oppressed Muslim majority against the Dogra rule as exclusively a class struggle. In 1944, a group of prominent Indian leftists helped the National Conference bring out the “Naya Kashmir” manifesto, which became a blueprint to fight for the rights of peasants, artisans and the working class. This ideological shift laid the foundation for Abdullah and the National Conference backing J-K’s entry into the Indian Union. As part of the bargain, Abdullah sought autonomy for J-K, protection of its demographic complexion through the state subject law, abolition of the feudal system, and a freehand to implement the land to tiller reforms.

Accordingly, the Big Landed Estate Abolition Act was enacted, giving six and a half lakh Muslim tillers and two and a half lakh lower caste Hindu tillers ownership of the land they had been cultivating for generations. Since the Dogra state was a Hindu monarchy, the overwhelming majority of the landlords affected by the 1950 law were Hindu. These aggrieved landlords assembled behind the Praja Parishad, a communal organisation aligned with the RSS, which launched a major agitation in Jammu. In June 1952, Praja Parishad submitted a memorandum to the then Indian president, Rajendra Prasad, demanding that Jammu be brought directly under the Indian constitution.

Mr. Abdullah was deposed by Mr. Nehru’s government in 1953 and jailed. After he returned to power, as chief minister of a state rather than as prime minister of an autonomous region as he had been, he enacted the Agrarian Reforms Act to further rationalise land ownership. All these land reforms contributed hugely to uplifting the Muslim peasantry. In fact, the Muslim peasantry was so grateful to Abdullah’s land to tiller scheme, which had freed them from centuries of misery and inhuman exploitation, that they overlooked the political blunders of National Conference and unconditionally stood behind him until his death.

Hindu supremacist groups such as the Praja Parishad, which merged with the BJP’s precursor Jana Sangh in 1963, were vehemently against these reforms because they empowered the Muslim peasantry and freed them from the oppressive and exploitative clutches of Hindu feudal lords. In this light, the rollback of these land reforms by the BJP government’s Third Order of 26 October fulfils an agenda that the Rashtriya Swayamsevak Sangh has nurtured for the last seven decades. It also belies the last remaining reason put forth by Sheikh Abdullah and National Conference in 1947 to support J-K’s entry into Indian Union. Kashmir has returned to a state that is more challenging than even 1846.

The Third order repeals the Big Landed Estate Abolition Act and changes the Agrarian Reforms Act in a way as to render it inoperative. Simply put, the order removes the ceiling on landholdings, undoing in one stroke the reforms carried out over the last 70 years. It also does away with the restriction that allowed permanent residents of J-K alone to buy, sell and own land and property in the region. This means all of J-K’s land is now open for Indian citizens and entities to buy and use as they wish. The removal of the ceiling on landholdings will pave way for a big businesses from outside J-K to come in and own large chunks of land.

In addition, the Third Order repeals the J-K Alienation of Land Act, which laid down that any land given to tillers couldn’t be sold. It could only be alienated through an elaborate process with a lot of checks and balances. Simply changing the title of the land wasn’t possible; more than 10 officials would check every record from the earliest girdawari before the land could be alienated by the divisional commissioner, the head of the civilian administration in the province. The process was deliberately made cumbersome to prevent the exploitation of the landless tillers empowered through the land reforms.

It is amply clear that this law has been repealed to make selling of land very easy.

The Third order also repeals the J-K Utilization of Land Act and the J-K Prohibition on Conversion of Land and Alienation of Orchards Act. These laws regulated the utilization of land and prevented changes in land use. The prohibition on conversion law didn’t allow for alienation of orchards except with the permission of the revenue minister. A violation of the law would attract penal provisions. Orchards are the backbone of Kashmir’s economy and the law was meant to safeguard them. Its repeal opens up orchard land for any other use.

The J-K Land Revenue Act has been amended to make it far easier to convert agricultural land to non-agricultural use. Such conversion could not take place without the revenue minister’s permission earlier. Now, the deputy commissioner and, in some cases, the tehsildar can grant the permission. Similarly, the “grazing land, arak, kap or kah-i-krisham or which grows fuel or fodder and belongs to such class as is notified by the government can be used for any other purpose after the permission of the district collector”.

The J-K Common Lands (Regulation) Act, 1956 regulated common village lands. It has been repealed. The J-K Consolidation of Holdings Act, 1962, the J-K Prevention of Fragmentation of Agricultural Holdings Act, 1960, and the J-K  Tenancy (Stay of Ejectment Proceedings) Act, 1966 — all part of the land reforms — have been repealed as well. The Tenancy Act safeguarded tenants from ejectment from their tenements.

The Third order also introduces a scheme exactly like the controversial Roshni programme under (now repealed) J-K State Lands (Vesting of Ownership to the Occupants) Act, 2001. “The Government may make rules for regularisation of unauthorised occupation, if any, arising on account of repeal of Acts…Provided that such regularization may be permitted subject to payment of levy or fees to the Government at a rate not less than the fifty percent of the circle rate notified by the Government for such type of land in the particular area.” The scheme runs out on 31 December 2021.

The introduction of this scheme is especially ironic because Roshni Act that also allowed the transfer of ownership rights of state land to its occupants, subject to the payment of a cost, as determined by the government was one of the first state laws repealed by then Governor Satyapal Malik after New Delhi imposed its direct rule in J-K.

The modification of the J-K Development Act has serious consequences. While it removes the restriction that only a permanent resident or state subject can acquire, buy and own land in J-K, the order adds a new provision that any region in J-K can be notified as a Strategic Area and excluded from the purview of the J-K Development Act.

The government can declare a Strategic Area on the written request of an army officer not below the rank of Corps Commander that they need the area for “direct operational and training requirements”. Simultaneously, the J-K Control of Building Operations Act, or BOCA, which regulates all construction activity, has been changed to take away Strategic Areas from its purview. In other words, these Strategic Areas will not be governed by building regulation laws in municipal areas.

What does this mean? Say, the army declared that it needs Lal Chowk, Residency Road and Polo View area in Srinagar for operational purposes. The government can notify it as a Strategic Area and they can carry out any constructions they desire without any hindrance. The modification to the J&K Development Act makes it particularly easy for the army to acquire land in places managed by development authorities such as Srinagar, Gulmarg, Sonmarg, Pahalgam, Yusmarg, Bangus, Kokernag, Verinag, Aharbal, Peer ki Gali, Lolab-Bangus Drangyar, Wullar- Manasbal, and Doodpathri in Kashmir and several similar authorities in Jammu province. The transfer of land with the development authorities is otherwise difficult; the transfer of land to hoteliers under the Roshni scheme in Gulmarg was illegal only because it had already been acquired by the Gulmarg Development Authority.

Another modification to the J-K Development Act portends equally grave consequences. A new provision added to the law allows for levying of land use charges after a master plan or a zonal plan is made operational in an area. “The Government may, by notification in the Official Gazette, notify a scheme for levy of charges for use of land as permitted in the master plan or the zonal plan, the proceeds whereof shall form part of the fund of the Authority and may be used to defray the expenses incurred on acquisition of land that may be required to be acquired,’’ it states. It adds that “the provisions of the Jammu and Kashmir Agrarian Reforms Act, 1976, J-K Land Revenue Act, Samvat 1996 or any other law for the time being in force requiring any permission to change the usage of any land, shall not be applicable to any land so covered”.

What does this mean? It means that even if you own a piece of land and have the right to use it as per your requirements, and once master plan or zonal plan is made operational in the area, the government can charge you for using your own land.

The modifications to the J-K Development Act include the setting up of a new J-K Industrial Development Corporation. The aim of this corporation, the new law states, is “securing and assisting in the rapid and orderly establishment, and organization of industries…and for the purpose of establishing commercial centers”.

The law provides sweeping powers to the government. It is literally Armed Forces Special Powers Act for civil administration. In fact, the industrial corporation is designed to be more powerful than even the East India Company in its heyday. It will have power “to acquire and hold such property, both movable and immovable as the Corporation may deem necessary for the performance of any of its activities, and to lease, sell, exchange or otherwise transfer any property held by it on such conditions as may be deemed proper by the Corporation”. It will also have power “to purchase by agreement or to take on lease or under any form of tenancy any land, to erect such buildings and to execute such other works as may be necessary for the purpose of carrying out its duties and functions”; and “to construct buildings for the housing of the employees of such industries or commercial establishments”.

The corporation will also exercise all the powers under the J-K Town Planning Act, 1963; J-K Municipal Act, 2000; and J-K Municipal Corporation Act, 2000 on the land it has acquired.

The new law lays down that “whenever any land is required by the Corporation for any purpose in furtherance of the objects of this Act, but the Corporation is unable to acquire it by agreement”, the government will order acquisition of the land in the same manner it does if the land was needed for a public purpose.

The corporation’s functioning can’t be scrutinised by the courts. The law governing it states that no court can take cognizance of any offence relating to the corporation’s property without its say-so. That’s not all. No suit, prosecution or other legal proceedings can be initiated against any person (the officials of the corporation and the industries/businesses that function under its order) for anything which is “done or intended to be done in good faith”. And if there is a complaint, no suit can be filed against the corporation’s officials or the industries that function under its order for “anything done or purporting to have been done” under the law governing it without “two months’ previous notice in writing of the intended suit and of the cause thereof and not after six months from the date of the act complained of”.

On the other hand, anybody who “obstructs the entry” of a person authorised by the corporation can be punished with six months of imprisonment and a fine of ten thousand rupees.

What does this mean? Say, the corporation wants to acquire an inhabited area and evict its population for a big company to set up their plant, or decided to take over cultivable land for some purpose. The owners of the land can’t do anything about it. There is no legal recourse available to them to prevent the corporation from acquiring all their private property.

The fresh Order also modifies the J-K Civil Services Decentralization and Recruitment Act to make the “spouse of a Domicile” eligible for government employment. The preceding order restricted government employment in J-K to the domiciles only.

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