Article 370 Abrogation: Many central laws still not implemented in Jammu & Kashmir

Three years ago, on this day, the Government of India abrogated Article 370. With this, the government scrapped the special status of Jammu and Kashmir. 

On August 5, 2019, the Union Home Minister Amit Shah introduced the Jammu and Kashmir Reorganisation Bill, 2019 in the Rajya Sabha and eventually, the status of Jammu and Kashmir as a state was converted into two separate union territories. The two UTs - the union territory of Jammu and Kashmir and the union territory of Ladakh came into existence on 31 October the same year, and the day was marked as the National Unity Day. It is also a day celebrated to mark the birth anniversary of Sardar Vallabhai Patel, who played a major role in the integration of India. 

​​Three years have passed since the abrogation of Article 370. Still, the ordinary resident of J&K continues to fight long and arduous legal battles to avail the rights they ought to have under the central laws of the government of India. 

During our investigation, we met with many people whose access to the central laws was cut and old and archaic laws were imposed on them. Let's take a look at Bashir Ahmed Bhat’s story. Bashir runs a small grocery store in Srinagar’s New Theed (Haripora) village. Bashir, who comes from a poor lower middle-class family, did not have the means to get an education. But he wanted to get his children educated. The proceeds from the grocery store helped Bashir and his wife Mumtaz to provide quality education to their three children. 

His elder son Irfan Hashim completed his PHD in Journalism a few months ago from Kashmir University, and his second son Umar Bashir is a doctor with an MD in Medical Oncology. Bashir's daughter Saima was married a few years back and is a postgraduate in Environmental Science. 

For many years Bashir had been planning to renovate his grocery store and expand his small business, but he spent all his savings on his children's education. Kashmir is a small valley surrounded by mountains with very small patches of agricultural land. An average farming family owns just about half an acre of land, but Bashir owns just a tiny piece of land (33 marlas or 9000 square feet) where his wife grows vegetables and fruits for their family's consumption. 

Now, to the crux of the matter. Bashir's land is located just outside the village, which happens to be a commercial area given its proximity to the local bus stand and Harwan garden, a famous tourist hub. Some years back, the Power Department of J&K constructed a power grid station in the New Theed area, which is around 100 meters from Bashir's land. According to Bashir, the department forcibly acquired his land early this year without following the due process of law.

Bashir Ahmed Bhat at his grocery store in Srinagar | Pic courtesy: Raja Muzaffar Bhat

The department then got a concrete base for the towers constructed on 12 marlas of land, i.e. 6000 square feet area. Bashir was initially reluctant to give up his land as he planned to expand his business by setting up a departmental store and a clinic for his son on the premises. But he was assured a fair compensation for his land by the land acquisition collector and the power department officers. Bashir claims that he was under the impression that the Central Land Acquisition Act was operational in J&K post article 370 abrogation, which would fetch him three to four times more compensation than the market value of the land. But the government did not invoke the law and used force to acquire it, and Bashir and Mumtaz's apple & cherry trees were axed. According to Bashir's son Irfan Hashim, their garden of vegetables was ruthlessly destroyed. 

"My father was asked to accept compensation which was much lesser than even the market value of the land. The market value of our land is around Rs 1.20 crores per Kanal (20 marlas or 5445 square feet). We are being asked to accept Rs 25 to 27 lakhs only, which is a non-commercial rate. How can we accept it? If the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act has been extended to J&K post article 370 abrogation, why isn't this law being applied on the ground even after three years? This Act, in fact, guarantees three to four times more compensation than the market value of the land, plus it has provisions for the rehabilitation and resettlement of affected people, but we are being deprived of our rights," says Irfan.

The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, also known as the Land Acquisition Act, 2013 or LARR Act, regulates matters related to land acquisition and has many provisions for granting fair compensation to those people whose lands get acquired by the government. The Act also has adequate provisions for rehabilitation and resettlement of the families affected.

Many people like Bashir, who have faced similar issues, ask why central laws like this are not applied in J&K even when the government says that the idea behind the abrogation of Article 370 was to implement the vision of one nation, one law. 

Irfan goes on to narrate how the land acquisition has affected his family's finances and the community in general. "The adjoining lands close to our land have also become useless now as they have lost their commercial value. As per the government rules, no construction is allowed under the power transmission lines. Initially, when the government wanted to acquire our land, they issued a notification under the RFCTLARR Act 2013, but its copy was not given to us. I somehow managed to get the copy a few days later. But, eventually, when the land acquisition process concluded, we realised that the provisions of this law were not used. This is so strange as these local government officers are making a mockery of central laws in J&K."

Bashir Ahmed Bhat's son Irfan Hashim | Pic courtesy: Raja Muzaffar Bhat

In April this year, JCBs were brought to Bashir's land, and the power department started its work related to the erection of transmission towers by force. "Our apple and cherry trees were uprooted in such a haste and cruel-hearted manner that they did not even give us time to replant them in another place. My whole family was helpless that day as there was police deployment at the site. Was Article 370 repealed for this? Why have we been denied the benefits of central laws?" asks Irfan. 

Irfan has now moved J&K High Court with a writ petition, and he hopes to get relief from the court. In the past, the court has given favourable orders in similar cases, and Irfan says the judiciary is their last hope. His matter is listed for hearing on September 12. Meanwhile, Irfan and his father are still resisting the power department and are not allowing further construction of the power transmission towers. Since many months, this author has been approaching the land acquisition collector to put in place effective mechanisms to apply central laws in J&K so that people like Bashir don't fall victims to obsolete laws. So far, there has been no positive response or action from the district administration.

NOT THE FIRST, WON'T BE THE LAST

Forcible Land Acquisition in Pulwama 

During our investigation we also spoke to many villagers in Pulwama district. Khalid Jahangir Bhat, Ghulam Mohammed and many others say they too have been the victims of the same indifference. 

In the Awantipura area of Pulwama District, an indent for land acquisition was issued by the Registrar of Islamic University of Sciences and Technology (IUST) to expand its university campus. IUST is a government-owned university. A notification under Section 4 (1) of the erstwhile J&K Land Acquisition Act 1934 (samvat 1990) was issued by the land acquisition collector of Pulwama on May 2, 2017, for acquiring 46 Kanals, 12 Marlas of land (over seven acres) which belonged to Khalid Jahangir Bhat, Ali Mohammad Rather, Raja Bano, Ghulam Mohammad and others - all local villagers.

The declaration under Section 6 of the Act was issued, but the award of compensation was not done within the prescribed time. It is important to note that section 11-B of the repealed J&K Land Acquisition Act 1934 (samvat 1990) and even the RFCTLARR Act 2013 clearly prescribes that the Collector should make an award within a period of two years from the date of the publication of the declaration and if no award is made within that period, the entire proceedings for the acquisition of land shall lapse. Section 11-B notes: "Provided that in the case where the said declaration has been published before the commencement of the State Land Acquisition (Amendment) Act, 1997, the award shall be made within a period of two years from such commencement."

Therefore, the rules stipulate that the awards must be prepared within two years, and if it is not done, a fresh notification has to be issued. Even the erstwhile Land Acquisition Act of 1894, which was applicable across the country until 2013, also had this provision. In the above-mentioned case, the villagers told us that the government asked them to accept the compensation of the land as per the old Act, to which they disagreed.

Under the old law of J&K, only circle rate plus 15 percent solatium is given as compensation to the affected parties, whereas under RFCTLARR Act 2013, the solatium amount is 100 per cent and over and above that, the land owners get a price that is three to four times the market value of the acquired land. In this case, too, the villagers went to the High Court and the division bench, on October 28, 2021, pronounced a detailed judgement directing the government to give the petitioners compensation as per the new Act that has been extended to J&K post the abrogation of Article 370. 

While pronouncing the verdict, the division bench of Chief Justice Pankaj Mittal and Justice Vinod Chatterji Koul stated: "As only the notifications to acquire the land were issued by Government under the provisions of J&K Land Acquisition Act 1934, (samvat 1990) in 2017 and then no award were prepared (compensation) under Section 11 of the Act; therefore, the compensation was liable to be determined in accordance with the provisions of the new Act (Right to Fair Compensation Act 2013) as the same became applicable to the UT of J&K with effect from October 31, 2019."

But instead of implementing the order, the Jammu & Kashmir Government went to the Supreme Court with an appeal. 

CENTRAL LAWS THAT ARE NOT IMPLEMENTED IN J&K

Non-implementation of FRA & other laws 

It is not only the RFCTLARR Act 2013, which is not being made operational, but many other central laws like the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act 2006, also known as the Forest Rights Act - FRA 2006 has not been enforced on the ground. This is an important law that recognises the rights of the forest-dwelling tribal communities and many other traditional forest dwellers to forest resources. The law recognises that these community members were dependent on the forest resources for eons and the law within its ambit has provisions to equip people with more resources so that their rights are not deprived. One of the main objectives of this Act was to undo the historical injustice perpetrated upon the forest-dwelling communities and to ensure land tenure, livelihood and food security of the forest-dwelling Scheduled Tribes and other traditional forest dwellers.

We met Abdul Rasheed Gorsi from Branwar in the Peer Panjal forest division. Gorsi is a forest-dwelling middle-aged man belonging to the Scheduled Tribe community from the Zilsidara Branwar village. He says he had been staying in the forest for almost 53 years but very recently an eviction notice was issued to him by the forest department in December 2020.

The FRA was extended to J&K soon after Article 370 was scrapped. Instead of rolling out this law, the Government of J&K started issuing eviction notices to forest-dwelling Scheduled Tribes and Other Traditional Forest Dwellers (OTFDs) in many districts of J&K using the obsolete Indian Forest Act, 1927. In Budgam district, not only were the notices served to poor tribals and forest dwellers, but hundreds of apples and other trees were axed in many villages located in the Pir Panjal forest division.

When the local residents resisted, and there were protests by activists and political parties, the Forest Rights Act 2006 was finally rolled out around January 2021. Had people not resisted, the FRA would not have been operational on the ground in J&K, and people would have been evicted. There is a complete lack of awareness amongst the government officials at the local level, and they have not been able to make a transition toward central laws. 

In Jammu and Kashmir, we also witnessed strange ways in which laws get implemented, throwing the rule book to the wind. For instance, the government has made the forest department the nodal agency for FRA, while in other states tribal affairs department is responsible for operationalising this law. The law is implemented at a snail's pace here. During the course of this investigation, we spoke to many locals and lawmakers. More than 800 central laws have been made applicable in J&K after the special status of J&K was revoked, but we are told people are still unable to reap the benefits of many of these legislations like citizens in the rest of the country

"The Transgenders Protection Act applies in J&K after article 370 was abrogated, but hardly any transgender person has received an identity card under this law. Right to Education (RTE) is not operational. The Fair Compensation Act isn't being made applicable on the ground, and farmers' land is being taken by force for highways and road projects, as in the case of the Srinagar Ring Road project. The Forest Rights Act, 2006 was made operational only when people raised their voices against evictions undertaken under Indian Forest Act, 1927, which is subservient to FRA 2006. The youth are protesting daily against nepotism and corruption. A recruitment scam has been exposed in the J&K Services Selection Board (JKSSB) during the recent selection of police Sub Inspectors. I appreciate that the matter has been handed over to the CBI by LG Manoj Sinha, but so many promises were made to us on August 5, 2019, from the floor of the Parliament, but it has not been kept," says Badrul Dujja, a Srinagar-based Public Interest lawyer. 

People in Jammu and Kashmir have been victims of unrest, terror and misgovernance for years. The abrogation of Article 370 shook several residents, but many others hoped that this would herald a new beginning for the people of J&K where they would get equal rights just like the citizens in the rest of India. But the non-implementation of progressive central laws is a complete letdown to the people. 

The credibility of recruitment agencies is being questioned today; illegal riverbed mining is taking place unhindered, and centrally sponsored schemes like PM Ujjwala Yojana are marred by corruption. Whose fault is this? The power centres in New Delhi, which are far disconnected from the goings-on in J&K, probably are unaware of the gravity of the situation on the ground. 

As a first step, the union government must conduct an exercise to understand how many central laws are not implemented on the ground level in J&K. The centre must create awareness amongst the local administration in J&K on the need for such enforcement and also the consequences for non-compliance. 

The larger issues remain: democratic institutions like state assembly are still dysfunctional, free and fair elections are not held in J&K, and bureaucrats and babus rule the roost - all of which is further creating a wedge between New Delhi and Srinagar. But a good start would be to go back to the basics and implement central laws uniformly across the country. One nation, one law can't be a reality when J&K, the crown of India, is cast aside and its people deprived of their constitutional rights.