After the Jammu and Kashmir High Court declared the State Land Vesting Ownership to the Occupants Act of 2001 unconstitutional on October 9, leaders of the Bharatiya Janata Party castigated Kashmir’s unionist politicians for “brightening their own homes while pushing the poor into darkness” – wordplay on the name by which the law is popularly, Roshni Act.

Going a step further, the BJP leaders sought to ascribe criminal intentions to the unionists by calling the court’s order a “surgical strike” against “land jihad”, a conspiracy theory peddled by the Hindutva ecosystem that Muslims have forcibly taken over land belonging to Hindus, especially in Jammu region. Kavinder Gupta, the state’s former deputy chief minister, outlandishly alleged that the law and its implementation were a “well-knit plan” hatched with Pakistan’s “overt or covert supporters”.

The J&K administration was also quick to announce that it would “work out the modalities and plan to evict encroachers from such state land and retrieve the state land within a period of six months”, assigning the job to principal secretary, revenue. It soon published partial lists of the Roshni scheme’s beneficiaries which unsurprisingly included top unionists and their family members. But then the administration, and even the BJP, suddenly stopped using the issue as a beating stick to further discredit Kashmiri unionists.

While the BJP went silent on the matter, the administration on December 4 filed a petition in the high court seeking a review of its October 9 verdict on the grounds that “a large number of common people would suffer unintentionally” and the CBI inquiry ordered by it “may go on endlessly”.

Four days later, it asked the court to advance the hearing on the review petition. The court scheduled it for December 16.

Why the urgency?

Seemingly, there are two reasons for the turnaround by the BJP and the administration: the majority of the lands transferred under the Roshni scheme have gone to people in Hindu majority Jammu, where the BJP gets its support from, and the fear of the CBI investigation among the bureaucrats.

Disquiet in administration

Aseem Sawhney, J&K’s additional advocate general, told Newslaundry that the administration sought to prevent the CBI from questioning government officials because it would cause “disquiet in the entire revenue department”.

Already, Sawhney noted, the inquiry had “caused a lot of anxiety and chaos in the entire system” and the state machinery would “come to a halt” if it continued. “Every officer who is expected to work will hesitate thinking the CBI would summon them,” he explained.

The administration wasn’t opposed to the investigation as such, Sawhney emphasised, but it felt the agency should “start with big sharks” and steer clear of cases already under investigation by the Anti-Corruption Bureau. In such cases, he claimed, chargesheets had been filed or the investigation was in the “last stages”.

In its verdict, the high court said the erstwhile state assembly had acted with criminal culpability by enacting the Roshni Act, Sawhney argued, but “we are saying it’s too harsh to say of the legislature”. Government officials who facilitated regularisation of lands under the Roshni Act were protected by the doctrine of legitimate expectations, he said. For example, were the Supreme Court to restore Article 370 in future, it still wouldn’t hold the central government criminally culpable for abrogating it.

“The presumption of correctness is always attached to law, not criminal culpability. The legislature does not make law with criminal intention. This is what the doctrine of separation of power is, that’s where we are trying to draw a line,” Sawhney said, adding that a legislature’s actions can be ultra vires, meaning beyond its powers, or illegal, but not criminal.

For now though, the CBI will continue its investigation as per the high court’s direction “unless there are directions otherwise”, the agency’s counsel, Monika Kohli, said. “We have already filed one status report before the court.”

Hiding behind the poor?

In its review petition the administration argued that common citizens who had benefited from the Roshni scheme were being clubbed “with rich and wealthy land grabbers who have obtained a title over state land through the provisions of the now struck down Act”.

“There is a need to distinguish between these two classes of people”, the petition added while informing the court that “the fact of being either a landless cultivator or householder with at the most one dwelling house in personal use would be the primary criteria for differentiating between two classes”.

Sheikh Shakeel, the lawyer for SK Bhalla, who has petitioned the court to investigate “land grab” by powerful individuals, wasn’t moved by this line of argument. He maintained that the administration, led by a lieutenant governor appointed by the BJP government in New Delhi, had turned around merely “because their vote bank was being disturbed” as “the maximum beneficiaries in Jammu are our Hindu brothers” and Jammu is the BJP’s “fertile constituency”.

Contrary to political rhetoric whipped up after partial lists of the Roshni scheme beneficiaries were released, people in Jammu received most of the lands. Of the over six lakh kanals approved for regularisation before the scheme was junked by the high court, 57,1210 kanals had actually been transferred to the beneficiaries – 31,4820 kanals in Jammu, just 33,345 kanals in the Kashmir valley.

The government committee tasked with approving transfer of lands had valued the lands approved for transfer in Jammu at Rs 194 crore, of which only Rs 22.4 crore was recovered from the beneficiaries. In the valley, Rs 54 of the total value of Rs 123 crore was recovered.

People in Jammu wouldn’t spare the BJP electorally were they to lose the lands obtained under the Roshni scheme, Shakeel argued. “This is why they have started to say they don’t want to touch the poor or the farmers, but basically they don’t want to lose their constituency,” he said, referring to the BJP.

Government officials were feeling the heat as well. “The bureaucracy has been intimidated by the CBI and it’s a big worry for them,” he explained. So “they want to return the cases to the ACB. They think that it is their own agency, with their own people, a telephone call from the secretariat would work”, he said, implying that the ACB could be influenced to go easy on the officials accused of misusing the Roshni Act to their benefit.

If the administration was actually serious about securing the interests of the poor and the farmers, they should implement the Agrarian Reforms Act instead of asking the high court to review its verdict on the Roshni Act, said Ankur Sharma, a lawyer in Jammu who has challenged the law’s constitutional validity.

“No holds barred action should have been taken against the remaining encroachers,” he added, alleging that encroached lands in Jammu were being divided up and built on “to pass them off” as small landholdings.

He also alleged that there was “a lobby in the bureaucracy, sitting in important positions, who are themselves land grabbers and property dealers” that was trying to scuttle the CBI investigation. “They convinced the government to file the review petition,” he claimed, adding that these senior bureaucrats believed “the ACB can be controlled but not the CBI”.

Sharma is a founding member of the Hindu supremacist political party IkkJutt Jammu. He claims to have coined the term “land jihad” and led the campaign against what his party calls the “demographic invasion” of Jammu by Muslims, a narrative fueled by projecting the regularisation of government lands under the Roshni scheme as some sinister plot against the region’s Hindus.

Shakeel had earlier, at a press conference held by Muslim community leaders in Jammu, said the administration was “selectively leaking names” to imply that the main beneficiaries of the scheme were Muslims in order to “vitiate peace and harmony in Jammu” ahead of the District Development Council elections. And this blatant communalisation had created a “fear psychosis” among the Muslim minority in Jammu region.

Deeply involved bureaucracy

In 2014, Subhash Chander Pandey, then the principal accountant general, said an audit of the scheme had been scuttled by “non-cooperation of the officers” of J&K administration.

“We wanted to know under what legal authority the officers had changed land use and category, gifted away the agriculture category of the grabbed state lands free of cost and granted huge rebates to the commercial category,” he explained. “We were keen to see who waived the stamp duty and under what legal authority. But almost the entire information was concealed, and we were told that the Comptroller and Auditor General could not interfere with the matters of the cabinet.”

The high court too, in its judgement, raised questions about the conduct of government officials and extensively detailed the Jammu Development Authority’s complacency and collusion. “We have strong apprehension that the JDA and the revenue authorities have now commenced a huge cover up exercise now,” the court said.

Noting that the Vigilance Organisation, now rechristened the ACB, “shielded those guilty” of violations, the court said it had prima facie found “adequate material” to support the petitioners’ apprehensions of “collusion of the concerned authorities with law breakers”.

Responding to questions about the ACB’s conduct, Sawhney said it was “not under a political dispensation” anymore but “under control and command of the lieutenant governor” after J&K’s reorganisation as a union territory.

Among the government officials accused of violating the Roshni Act is Baseer Khan, a former divisional commissioner of Kashmir and now an advisor to the lieutenant governor, Manoj Sinha. The ACB has once again indicted Khan for the illegal transfer of state lands in Gulmarg, along with six other officials. On December 15, an anti-corruption court adjourned the hearing on the matter saying it lacked the power to hear it, pending an order from the law department.

From the outset, in retrospect

Interestingly, the high court struck down the Roshni Act nearly two years after it was repealed by the then governor Satya Pal Malik’s administration. Stating that the law had not served its purpose, the court observed that it was enacted “without any analysis or evaluation of the cost benefit or conducting any impact assessment and has been worked in a malafide manner”.

“The Roshni Act and the Rules prescribe a mode of dispossession of valuable public property in a most arbitrary manner not known by law. The Act and the Rules are in the teeth of binding law down by the Supreme Court,” the court said in its October 9 judgement. “The vesting of several lakhs of kanals of public land to private ownership has resulted in such land not being available for public projects and infrastructure including hospitals, schools, parks, etc.”

The court, however, didn’t give the affected parties a chance to be part of the proceedings, said Shariq Jan, a lawyer based in Srinagar whose firm is preparing to represent, in the J&K High Court and the Supreme Court, some of the people affected by the verdict.

“That is a flaw in the judgement, it prejudices the rights of people without even hearing them,” he argued. “This clearly has no precedent.”

There are other problems. “The judgement is neither here nor there,” Jan said, adding that there were “very limited grounds on which an Act can be declared unconstitutional”. “What the high court has unfortunately done is that it has not struck it down on any of the grounds. It has gone on a completely different tangent, it has picked up bits and pieces of the Act.”

For one, Jan explained, the court “picked the rules of 2007 and stated that they did not have the necessary legislative approval”. The 2007 rules under the Roshni Act – allowing for land prices to be statutorily determined and not specifying the required period of occupation for non-agriculture lands to be transferred to applicants – were not ratified by J&K’s legislature. However, Jan pointed out, once a law is passed, “the legislature is well within its rights to say the framing of rules under it can be done by the executive”.

For the sake of argument, Jan said, even if the 2007 rules were bad because they did not have the legislature’s approval “then only the rules could have been struck down, the whole Act can’t be declared unconstitutional”. “What they have done is that they have thrown the baby out with the bathwater,” he concluded. “All the arguments of the high court, as far as the constitutionality of the Act is concerned, are misplaced. A government is well within its rights to come up with an Act which gives ownership rights to citizens…The main problem is that the ground on which the Act has been declared unconstitutional is no ground at all.”

Jan also questioned the J&K administration’s response to the verdict. “An Act of the government was struck down. They should have challenged the judgement,” he said.

The Roshni Act, he pointed out, deployed similar legislative and executive powers as used for similar regularisations in New Delhi, Maharashtra and Gujarat. Recent regularisations in New Delhi were, in fact, owned up by none other than prime minister Narendra Modi.

Yet, the J&K administration, at least so far, has not challenged the high court’s judgement. Since the Indian government dismantled J&K’s autonomy and downgraded it to a pair of union territories with little resistance, it’s unlikely the administration, now run directly by New Delhi through the lieutenant governor, will do much to placate the public by tackling the communalisation of the issue and putting to rest the anxieties borne of speculation that the ongoing dispossession, including of the Gujjar and Bakerwal community, is aimed at paving the way for Indian businesses and settlers.

At the time of repealing the Roshni Act, Sawhney said, the administration “kept the saving clause that no one will benefit from Roshni in future but those who had will not be disturbed”. The high court did away with this protection. “Basically, we did not want to cause disquiet and chaos at that time. By virtue of the court judgement it has happened now.”

Challenging this, Sawhney said, “was up to the government.”