On Wednesday, 8 December, the Jammu and Kashmir government filed an application in the J&K High Court, asking it to bring forward its hearing of a review petition against a decision by its own division bench regarding the controversial ‘Roshni Act’.
The request for an early hearing is in sync with a marked change in the stance of the J&K government (which remains under the control of the Centre, as a Union Territory, following Governor/President’s Rule previously).
After all, it was former Governor Satya Pal Malik who had repealed the Roshni Act in 2018 and then ordered an anti-corruption investigation into dealings under it.
However following the high court’s decision in October 2020 to declare the Act “unconstitutional” and order a CBI probe into the transfers of land ownership under it, it was the J&K government which asked for a review of the decision.
The request for an early hearing is a little strange given the matter was scheduled to be heard on 16 December by the high court anyway.
But what exactly is this Roshni Act?
Why was the J&K high court so concerned about it?
And why has the J&K government performed this u-turn?
The Quint explains.
Explained: The J&K Government’s Sudden Love for the ‘Roshni Act’
1. WHAT WAS THE 'ROSHNI ACT'?
In 2001, the then-J&K government passed the Jammu and Kashmir State Land (Vesting Ownership to Occupants) Act – which came to be commonly known as the ‘Roshni Act’, because the funds raised from the scheme under the Act were supposed to be used to fund hydroelectric power projects in the then-state.
While the Act was initially introduced by Farooq Abdullah’s National Conference government, it also had the support of other parties, including the PDP and INC, whose subsequent governments, in fact, expanded on it.
The idea was simple: under the original Act, people who were in possession of state-owned land from 1990 onwards, would get ownership of that land for a rate decided by the government based on market rates.
The cut-off date was extended to 2004 by Mufti Mohammad Sayeed’s government and then to 2007 by Ghulam Nabi Azad’s.
The scheme also allowed for transfer of ownership rights on agricultural land to farmers occupying it for a nominal documentation fee, according to The Indian Express.
Expand2. WHY DID THE HIGH COURT ORDER A CBI PROBE INTO THE ACT?
Red flags were raised about the Roshni Act in 2014 by the Comptroller and Auditor General of India. When the Act had been passed, the objective was to bring in Rs 25,000 crore worth of money for the public exchequer, by selling around 20.46 lakh kanals of state land (16.02 lakhs in Jammu and 4.44 lakh in Kashmir).
When the CAG examined records for 2007 to 2013, however, they found that only Rs 76 crore were recovered for deals for 33,000 kanals in Kashmir and 3.14 lakh kanals of land in Jammu – even though the price fixed for this land was around Rs 317 crore. Another 2.57 lakh kanals of land were supposed to be regularised in Jammu, but this had not taken place.
The CAG noted in its report that there were irregularities in the allotment of land and that prices had been arbitrarily lowered by a standing committee for the benefit of politicians (including those from the ruling political parties) and other influential people in the state.
Despite the filing of cases for violation of the Act by the state’s vigilance commission equivalent, including the Gulmarg scam (where senior bureaucrats were accused of facilitating transfers to private parties), no action was taken for years.
In September 2019, nearly a year after he had repealed the Roshni Act, Satya Pal Malik ordered a probe by the J&K Anti-Corruption Bureau into dealings under the scheme. And this was when the J&K High Court got pulled into the issue, after a plea was filed there asking for a transfer of the probe to the CBI.
A division bench of the high court delivered its judgment on 9 October, in which it did order a CBI probe into transfers under the Act – but instead of just focusing on influential persons, it held that all transfers of land under the Act were void ab initio as the Act was “unconstitutional, contrary to law and unsustainable”.
In addition to the CBI probe, it also directed the J&K government to publicly state the names of beneficiaries under the Act.
The J&K government then announced that all transfers under the Act were to be cancelled and began to work on a plan to retrieve the erstwhile state land.
Expand3. WHY HAS THE J&K GOVT SOUGHT A REVIEW OF THIS DECISION?
When the high court’s decision was announced, the BJP initially declared it to be a “surgical strike against land jihad”, according to The Indian Express, based on the narrative that had been created among right-wing Hindu groups in Jammu that the point and purpose of the Act had been to change the demographic nature of Jammu by giving land to Muslim owners.
Under the guise of the court’s directions to disclose the names of beneficiaries under the Act, the J&K government put up lists with names of Kashmiri politicians who had obtained land using the scheme prior to the recent local elections – in which some of those local right-wing groups, which had made the brouhaha about ‘land jihad’, contested for the first time.
The BJP also made a song and dance about land grabs in its campaign for those local elections.
However, since then, as the reality of the impact of the high court order dawned on people in Jammu and Kashmir, given its sweeping nature, opposition now grew to its implementation, even in Jammu. According to The Print, feedback from Jammu, Kathua and Udhampur played a key role in the decision.
This is likely to have been because in reality, most of the land regularised in Jammu went to Hindu applicants, as Scroll reports, rather than Muslims as the popular narrative had led people to believe.
The Wire indicates that, for instance, only 1,180 kanals of the land regularised in Jammu city was under occupation by Muslims, out of a total of 44,915 kanals.
On paper, the J&K government’s decision to file the review is for two reasons:
- The court should have drawn a distinction between “landless cultivators and individuals residing in dwellings on small areas” and “rich and wealthy land grabbers”. The effects of striking down the law, they argue, should only apply to the latter, not the former. The distinction can be made, they claim, by setting a ceiling on the amount of land transferred to an owner, so that the poor ones are not left landless and destitute.
- There is a need to prevent a “roving inquiry by the CBI” into the transfers of land, which is possible at this point, as under the current order any land transfer under the act can be probed. This, they argue, would run contrary to the results sought by the J&K HC, and so the probe should be restricted to cases where fraud and criminal intent existed. They also asked for the cases already registered by the J&K Anti-Corruption Bureau to not be transferred to the CBI.
The high court is expected to hear the matter on 11 December next.
(At The Quint, we question everything. Play an active role in shaping our journalism by becoming a member today.)
Expand
WHAT WAS THE 'ROSHNI ACT'?
In 2001, the then-J&K government passed the Jammu and Kashmir State Land (Vesting Ownership to Occupants) Act – which came to be commonly known as the ‘Roshni Act’, because the funds raised from the scheme under the Act were supposed to be used to fund hydroelectric power projects in the then-state.
While the Act was initially introduced by Farooq Abdullah’s National Conference government, it also had the support of other parties, including the PDP and INC, whose subsequent governments, in fact, expanded on it.
The idea was simple: under the original Act, people who were in possession of state-owned land from 1990 onwards, would get ownership of that land for a rate decided by the government based on market rates.
The cut-off date was extended to 2004 by Mufti Mohammad Sayeed’s government and then to 2007 by Ghulam Nabi Azad’s.
The scheme also allowed for transfer of ownership rights on agricultural land to farmers occupying it for a nominal documentation fee, according to The Indian Express.
WHY DID THE HIGH COURT ORDER A CBI PROBE INTO THE ACT?
Red flags were raised about the Roshni Act in 2014 by the Comptroller and Auditor General of India. When the Act had been passed, the objective was to bring in Rs 25,000 crore worth of money for the public exchequer, by selling around 20.46 lakh kanals of state land (16.02 lakhs in Jammu and 4.44 lakh in Kashmir).
When the CAG examined records for 2007 to 2013, however, they found that only Rs 76 crore were recovered for deals for 33,000 kanals in Kashmir and 3.14 lakh kanals of land in Jammu – even though the price fixed for this land was around Rs 317 crore. Another 2.57 lakh kanals of land were supposed to be regularised in Jammu, but this had not taken place.
The CAG noted in its report that there were irregularities in the allotment of land and that prices had been arbitrarily lowered by a standing committee for the benefit of politicians (including those from the ruling political parties) and other influential people in the state.
Despite the filing of cases for violation of the Act by the state’s vigilance commission equivalent, including the Gulmarg scam (where senior bureaucrats were accused of facilitating transfers to private parties), no action was taken for years.
In September 2019, nearly a year after he had repealed the Roshni Act, Satya Pal Malik ordered a probe by the J&K Anti-Corruption Bureau into dealings under the scheme. And this was when the J&K High Court got pulled into the issue, after a plea was filed there asking for a transfer of the probe to the CBI.
A division bench of the high court delivered its judgment on 9 October, in which it did order a CBI probe into transfers under the Act – but instead of just focusing on influential persons, it held that all transfers of land under the Act were void ab initio as the Act was “unconstitutional, contrary to law and unsustainable”.
In addition to the CBI probe, it also directed the J&K government to publicly state the names of beneficiaries under the Act.
The J&K government then announced that all transfers under the Act were to be cancelled and began to work on a plan to retrieve the erstwhile state land.
WHY HAS THE J&K GOVT SOUGHT A REVIEW OF THIS DECISION?
When the high court’s decision was announced, the BJP initially declared it to be a “surgical strike against land jihad”, according to The Indian Express, based on the narrative that had been created among right-wing Hindu groups in Jammu that the point and purpose of the Act had been to change the demographic nature of Jammu by giving land to Muslim owners.
Under the guise of the court’s directions to disclose the names of beneficiaries under the Act, the J&K government put up lists with names of Kashmiri politicians who had obtained land using the scheme prior to the recent local elections – in which some of those local right-wing groups, which had made the brouhaha about ‘land jihad’, contested for the first time.
The BJP also made a song and dance about land grabs in its campaign for those local elections.
However, since then, as the reality of the impact of the high court order dawned on people in Jammu and Kashmir, given its sweeping nature, opposition now grew to its implementation, even in Jammu. According to The Print, feedback from Jammu, Kathua and Udhampur played a key role in the decision.
This is likely to have been because in reality, most of the land regularised in Jammu went to Hindu applicants, as Scroll reports, rather than Muslims as the popular narrative had led people to believe.
The Wire indicates that, for instance, only 1,180 kanals of the land regularised in Jammu city was under occupation by Muslims, out of a total of 44,915 kanals.
On paper, the J&K government’s decision to file the review is for two reasons:
- The court should have drawn a distinction between “landless cultivators and individuals residing in dwellings on small areas” and “rich and wealthy land grabbers”. The effects of striking down the law, they argue, should only apply to the latter, not the former. The distinction can be made, they claim, by setting a ceiling on the amount of land transferred to an owner, so that the poor ones are not left landless and destitute.
- There is a need to prevent a “roving inquiry by the CBI” into the transfers of land, which is possible at this point, as under the current order any land transfer under the act can be probed. This, they argue, would run contrary to the results sought by the J&K HC, and so the probe should be restricted to cases where fraud and criminal intent existed. They also asked for the cases already registered by the J&K Anti-Corruption Bureau to not be transferred to the CBI.
The high court is expected to hear the matter on 11 December next.
(At The Quint, we question everything. Play an active role in shaping our journalism by becoming a member today.)