February 2002 News

SC stays J&K resettlement act

1 February 2002
The Daily Excelsior

New Delhi: Taking note of the cross-border terrorism in Jammu and Kashmir, the Supreme Court today stayed implementation of a controversial Act passed by the State providing for resettlement of people migrated to Pakistan after partition and threatening those who had been allotted their properties. Giving two weeks time to the State Government to file a reply in a case known as J&K Resettlement Act, a bench comprising Justice G B Pattanaik and Justice S N Phukan granted stay on two writ petitions after senior advocate K K Venugopal submitted that the Act would become a ''tool'' for entry of terrorists in the State where over 50,000 people have fallen victim to militant activities. Questioning the validity of the J&K grant of permit for Resettlement Act, 1982, Venugopal said ''prima facie it is ultra vires of the constitution.'' The petitions filed by Panther’s Party president Bhim Singh and another petitioner Harshdev Singh’s counsel Ranjit Kumar, challenged the legislation on the ground that its implementation threatened the unity and integrity of the country as under this Act any person, who had migrated to Pakistan could claim legal right to settle here. The Act, which has been in limbo since its enactment in 1982, became a centre of controversy as the J&K Government on November six last year decided to implement it. The State took the decision after a five-judge constitution bench of the Apex Court returned a Presidential reference on the Act unanswered. ''The implementation of the Act can bring more than two lakh Pakistanis including descendants of those who were born in that country and many of them trained under Taliban. Even Taliban with fraudulent certificates as descendants of any one can settle anywhere in India and the consequences are obvious,'' the petitioners said. Supporting the stay on the implementation of the controversial Act, the Centre said its implementation would result in large number of aliens returning to India which was not permissible under the Citizenship Act. Appearing for the Centre, Additional Solicitor General R N Trivedi submitted that under section 6 of the Jammu and Kashmir constitution, the Legislative powers of the State was excluded in respect of matters over which Parliament was competent to legislate. Thus, in view of the citizenship and return of aliens being matters within the exclusive legislative competence of Parliament, the State Migrants Act was not in conformity with the Constitution. The Additional Solicitor General further said that conferment and deprivation of citizenship was an attribute of sovereignty which could be exercised by the Government of India and none else. He argued that persons who migrated in 1947 could not be conferred citizenship except by authority of law made by Parliament and added that under Article 11 of the Constitution it was Parliament which could regulate matters relating to citizenship. Jammu and Kashmir Government counsel Anis Suhrawardy wanted four weeks time to submit the affidavit but the court said the reply of the State must come within two weeks. Panthers party in its petition said the State neither had the competence nor jurisdiction to legislate with respect to citizenship rights as it came under the sole jurisdiction of Parliament. Requesting the court to strike down the Act, the petitioners said it was in this regard that the President had referred the matter to the Supreme Court in 1982 to determine the Legislative competence of the State to enact such a law. On the Act, the party said ''thousands of infiltrator claiming to be ‘Kashmiris’ had crossed to the Indian side of J&K in the past 13 years and caused death and destruction resulting in the killing of nearly 50,000 innocent people as well as the security forces. ''The impugned act cannot be allowed to be implemented in the greater national interest and the security of the country being totally violative of the constitution,'' the petition said adding all major political parties had opposed it. The Bill for the enactment of the controversial Act was returned to the Assembly in 1982 by the then Governor B K Nehru citing inconsistencies. In September 1982, the then President Giani Zail Singh referred the Bill to the Supreme Court seeking an opinion about its constitutional validity. However, the Assembly had passed the Bill without any change. But the Act came into limelight after the Supreme Court returned the presidential reference without giving an opinion. The Act was not only contrary to the provisions of the constitution, but also to the Indian Citizenship Act as well as the constitution of J&K, the petitioners said.


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