Mon. Jan 20th, 2020

J&K’s most controversial law buried during re-organisation of erstwhile State

‘37-year-old Resettlement Act was enacted to facilitate return of PR’s who migrated to Pakistan in 1947’

Srinagar: Jammu and Kashmir’s most discussed and debated law- Grant of Permit for Resettlement in (or Permanent Return to) the State Act-  has been silently buried during re-organisation of the erstwhile state of J&K.

According to wire service—Kashmir News Observer (KNO), the 37-year-old law was enacted by the J&K legislature to facilitate dignified return of those who migrated to Pakistan in 1947 due to disturbances or in fear of them.

The Jammu & Kashmir Grant of Permit for Resettlement in (or Permanent Return to) the State Act, figures in the list of 164 statues scrapped by the Parliament during re-organisation of J&K on August 5. “The law is no more applicable,” says BJP spokesman and prominent lawyer Sunil Sethi.

He said the BJP was ideologically opposed to the law “because once the person ceases to be an Indian national, he cannot be permanent resident of Jammu & Kashmir”.

He said “the constitutional validity of the law has gone with applicability of the Indian constitution to Jammu and Kashmir”.

The BJP-led Centre government also opposed the law before Supreme Court (SC) earlier this year. Appearing on behalf of the Centre, Tushar Mehta, Additional Solicitor General, told the Apex Court that permitting resettlement of descendants of those who migrated to Pakistan in 1947 from Jammu and Kashmir was fraught with serious security implications.

As per KNO, enacted in 1982, the law was cleared by J&K legislature to ensure dignified return of survivors of the partition who fled to Pakistan. During the turbulent times of 1947, thousands of Muslims from Jammu region migrated to Pakistan.

Under the law, any person who was a state subject before May 1954 and had migrated to Pakistan after March 01, 1947 or is a descendant, wife or widow of such State subject could be considered for resettlement in the state on inquiry by a competent authority.

The law also provided that returnees had to swear allegiance to the Constitution of India.

Defending the law in 1982, J&K’s then Chief Minister Sheikh Muhammad Abdullah had said they cannot deny the right of return to those who have left the State. “In any case many of them would not come back. Only 117 persons have returned since 1947. But we cannot deny them their rights. They are free to return to their home any time,” he had said.

In January this year, the J&K government disclosed before the Supreme Court that competent authority to be set-up under the law was never notified by it. “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 submitted.

The competent authority would be responsible for its overall implementation.

History of law:

The origin of the law can be traced back to 1948 when New Delhi and J&K Government began discussions to work out constitutional relationship between them.

In 1953, J&K Constituent Assembly’s advisory committee on citizenship and fundamental rights recommended necessary modification in Part second of the Constitution of India to enable permanent return of these subjects.

Subsequently, a proviso was added to Article 7 of the Constitution of India through Constitution Application Order 1954.

The proviso exempts application of the Article 7 on such subjects and also confers them citizenship of India. Under the Article 7, the citizens of India who migrated to Pakistan in 1947 lose their citizenship rights.

In 1980, National Conference legislator Abdul Rahim Rather introduced a bill for enacting a law for defining procedure for permanent return of such citizens from Pakistan.

Subsequently, the bill was cleared by both Houses of the state legislature in April 1982. However, the bill was returned by Raj Bhavan, urging the House to reconsider it. Again in October 1982, the bill was cleared by the House leaving Governer BK Nehru with no option than to approve the bill on October 6 , 1982.

But before the bill became a law, the President of India Giani Zail Singh on September 30, 1982 had sent a Presidential reference to the Supreme seeking its advisory opinion on constitutional validity of the bill.

On November 8, 2011, the Supreme Court returned the bill unanswered.

“……… Having regard to the facts that the bill became an Act as far back as in 1982, it appears to us inexpedient to answer the question posed to us in the Reference. Even if we were to answer the question in the affirmative, we would be unable to strike down the Act in this proceeding,” a five-judge bench headed by then Chief Justice of India S P Barocha observed.

Later, Jammu-based Panthers Party challenged the law in the Supreme Court. (KNO)

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