[op-ed snap] J&K Resettlement Law

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Mains Paper 2: Polity | Issues and challenges pertaining to the federal structure, devolution of powers and finances up to local levels and challenges therein.

From UPSC perspective, the following things are important:

Prelims level: J&K resettlement act, article 35A etc.

Mains level: Governance challenges in J&K


News

  • A challenge to an Act popularly known as the “Jammu & Kashmir resettlement law” has been listed for hearing by a Supreme Court Bench headed by CJI.

What is the Law ?

  1. The J&K Grant of Permit for Resettlement in the State Act, 1982, was passed to “provide for regulation of procedure for grant of permit for resettlement in or permanent return to the State of the permanent residents”
  2. It envisages grant of permit for resettlement of Pakistani nationals who had migrated to Pakistan from Jammu and Kashmir between 1947 and 1954 after India’s partition.
  3. Mass killing of Muslims in Jammu in 1947 and its ramifications are the main reason why the law was introduced.

The controversy

  1. The Bill was introduced in 1980 and became law on October 6, 1982.
  2. But then President Giani Zail Singh had already sent a presidential reference to the Supreme Court seeking its opinion regarding the law’s constitutional validity.

Constitutionality check

  1. Section 6 of the J&K Constitution has a provision for those who were stuck in areas that became Pakistan in 1947.
  2. They can return under a resettlement law enacted by the state legislature.
  3. There is a provision that those who migrated to Pakistan can return under a law of the legislature.

The challenge

  1. The Supreme Court in 2011 refused to intervene on the presidential reference, saying it has already become law
  2. Through this law, we would be inviting trained Pakistani terrorists.
  3. Apart from this, those people on return will reclaim property including agricultural land allotted to refugees from PoK.
  4. This will have severe implications on law and order.

Where parties stand

  1. Within J&K’s major political parties, there is an apprehension that the Governor’s administration would “dilute” the stance of elected state governments that have defended the law in court.
  2. They look at a precedent in the case relating to the challenge to Article 35A of the Constitution, which empowers the J&K legislature to define “permanent residents”.

Top Court’s Observance

  1. The Supreme Court wondered how “descendants” of those who had moved to Pakistan between 1947 and 1954 could be allowed to resettle.
  2. CJI said “How can it be extended to wives and other persons? It can only be such persons who had migrated. The Constitution does not contemplate return of those descendants.”
  3. If descendants of those who had migrated are allowed to return, “Several lakhs of those born in Pakistan will be able to come to India and this will affect the security of the country”.
  4. Citizenship is a subject in the Union list and hence outside the legislative competence of the state legislature.
J&K – The issues around the state
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