December 2001 News

Unsettling settlement

10 December 2001
Hindustan Times
Balraj Puri

New Delhi: What does the J&K Resettlement Act mean? A dispassionate debate is crucial before the current controversy explodes into a communal conflagration that may be fanned by vested interests and fanatics. The Supreme Court ‘respectfully returned’ the presidential reference on the J&K Resettlement Act on November 8. The reference was made by the then President Giani Zail Singh in 1982 when its enactment by the state assembly had generated communal passions. The act sought resettlement of the persons who were state subjects before May 15, 1954 and who had migrated after March 1, 1947 to the territory now included in Pakistan. It authorised the state government to issue permits to those persons who wanted to return after verifying their antecedents. The return of the reference means that the law stands as it was originally passed. The delay of 19 years in getting judicial verdict, though inexplicable, would have served some purpose if this period was used to evolve a political agreement on the issues involved. Besides, the political situation in the state is far more explosive today then it was in 1982. Some unnecessary heat may be avoided if the act is objectively examined: It applies to people who migrated to Pakistan and not to the PoK. It is wrongly argued that it would reunite families divided by the LoC. The humanitarian problem that the law proposes to deal with is similar to the families divided by partition of the country and is in no way specific to the state. As far as residents of PoK are concerned, they are legally Indian citizens because under the Indian Constitution, the whole undivided state is part of India. But travelling across the LoC is restricted under the Ingress and Egress Act. If under the proposed law, some erstwhile residents of the state, now in Pakistan, are allowed to return and claim property they had left behind, the worst sufferers will be displaced Hindus and Sikhs from PoK to whom evacuee property has been allotted. When the resettlement bill was passed, Sheikh Abdullah had accepted my suggestion to pass a supplementary legislation to implement his verbal assurance that the interests of Hindu and Sikh allottees on the evacuee property would not be affected. If the present National Conference government could implement the assurance given by the late Sheikh, the area of disagreement between opponents and supporters of the Resettlement Act would be reduced. The job of verification of the antecedents of the present residents of Pakistan who want to return is beyond the means of the state government. Would the government consider formally handing it over to the central intelligence agencies before issuing the required permit? The state law draws its constitutional sanction from Section 6 of Article 7 of the Indian Constitution. It authorises the state assembly to enact a law to grant Indian citizenship to permanent residents of the state who after migration to Pakistan return under a permit issued by the state authority. But this authority is not absolute. According to entry 17 in the seventh schedule of the Constitution, citizenship is a Union subject. Article 11 makes power of Parliament to enact laws on citizenship on this subject absolute. Parliament passed the Citizenship Act in 1955 which is applicable to J&K state also. It also deals with the grant of citizenship to non-citizens including those residents of the state who migrated to Pakistan. For they became citizens of that country and ceased to be citizens of India. Article 7 was incorporated in the Constitution in 1949 to honour the commitment of plebiscite in the state which required that all residents who left the state would be allowed to return to take part in it. It is nobody’s case that the present law is needed to honour the commitment of plebiscite. Nor have its supporters ever argued that it was needed or would be used to reverse the entire process of evacuation of Muslims from the state to Pakistan during the communal disturbances in 1947. It is just not possible. Those who have been socially, economically and emotionally integrated with Pakistan for the last five decades, they are unlikely to return to restart an uncertain life in the state. It was not unsurprising that the migrants from the state to Pakistan had greeted the new law in 1982 with hostility and suspicion as an “Indian conspiracy to close the Kashmir issue unilaterally”. The assurance of the then chief minister that no refugee allottee on evacuee property would be displaced on the return of evacuees was a further disincentive for their return. Meanwhile, the Supreme Court had, in a judgment, directed the J&K government not to entertain any more claims for properties left behind by those who migrated to Pakistan in 1947 as the 12-year limitation period prescribed under the Evacuees (Administration Property) Act, 1949, was long over. What then is the need of the Act? No law can be justified simply because the Constitution empowers its enactment. If the grant of citizenship is exclusively the constitutional right of the Centre, the only advantage of the present law is that the state can recommend such cases to the central government which alone has the means to verify the antecedents of the migrants to Pakistan who apply for return to the state. In case the state asserts its right to take action independently under Article 7 of the Constitution, it would conflict with the Indian citizenship law enacted under Article 11. Normally, in the event of such a conflict, central law prevails over state law. But the conflict should be resolved in a court of law rather than through polemics. While the effectiveness of the law to change ground realities is doubtful on account of its legal and operational implications, the exaggerated fears regarding the possible influx of hordes of Muslims from across the border, including saboteurs and spies, the change in the demographic composition of the Jammu region (from where the migration took place in 1947), and that events of 1947 might revisit it, need to be corrected through a dispassionate debate at the political, intellectual and legal fora. This is crucial before the current controversy explodes into communal conflagration which may be fanned by vested interests from across the border and fanatics on this side.

 

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