J&K high court

Contempt Case: J&K IAS Officer Shyambir Singh Tenders Apology to HC

The high court, however, sought more demonstration of remorse by the IAS officer, Shyambir Singh, who is posted as deputy commissioner in Ganderbal district, by asking him to voluntarily approach the chief judicial magistrate (CJM) of Ganderbal.

Srinagar: Facing legal trouble for criminal contempt of court, a 2018 batch Indian Administrative Service (IAS) officer posted in Jammu and Kashmir on Monday, August 12, apologised for his behaviour before a bench of the Jammu and Kashmir high court.

“If you are sincere, go to the CJM Ganderbal and tender your apology there. Your apology may be considered then,” a high court bench of Justice Atul Sreedharan and Justice Sanjeev Kumar observed, while adjourning the case to Wednesday, August 14.

The bench, however, didn’t pass any order for the DC to appear before the CJM but insisted that he does so voluntarily.

Singh, who is the son-in-law of former Union minister and senior BJP leader Prahlad Singh Patel, had “illegally” initiated proceedings to demarcate the land of Fayaz Ahmad Qureshi, a judge who had ordered his salary to be stopped due to alleged non-compliance with a court order issued nearly 18 months ago.

Singh had reportedly ordered the constitution of a committee headed by assistant commissioner revenue (Ganderbal), M Altaf Bhat, a Kashmir Administrative Service (KAS) officer, which was tasked to demarcate the land owned by the judge Qureshi.

Last month, the judge had initiated suo moto contempt proceedings against the DC and issued a notice to him before referring the matter to the high court. On August 1, the court observed that it had given “sufficient opportunities” to Singh to respond to the notice who “neither bothered to appear before the court nor he has furnished his reply”.

“Accordingly, this court deems it appropriate to proceed in accordance with The Contempt of Courts Act, 1971 r/w rules framed by Hon’ble High Court of J&K for regulating the procedure of contempt of itself and of the subordinate courts dated 23rd October 2023,” the court ruled, adding that it was referring the matter to the high court for initiating criminal contempt proceedings against Singh.

The court had also recommended that the chief secretary of Jammu and Kashmir take administrative action under the Government Conduct Rules, 1971, against the DC, describing him as a “constant potential threat” to the judiciary.

The high court bench said on Monday that the judiciary doesn’t interfere in the working of the executive, “We (courts) never tell you how to do your work. How can you do this? There are higher courts. If you think some order is wrong, you could have approached the high court.”

While appearing personally before the bench following the court’s direction, Singh, a 2018 IAS officer from Madhya Pradesh, said that his intention was not to disrespect the court. “It was because of unforeseen circumstances. I would never dream of disrespecting the court. I apologise,” Singh said, according to a report in a local news agency.

The Wire was among the first news outlets to report about the contempt proceedings against the IAS officer which came at a time when tensions between the local administration, which is run directly by the Bhartiya Janta Party-led Union government, and the judiciary, are running high over the former’s reluctance to implement the latter’s orders.

Earlier this month, the high court observed that a “sorry state of affairs” prevailed in Jammu and Kashmir as the administration acted “consistently with utter contempt” for the judiciary and the judicial system had become a “cruel joke”.

The court’s comments come after two senior administration officials gave two contradictory answers to justify the absence of the chief secretary (CS) from the proceedings. While J&K’s advocate general D.C. Raina blamed it on “connectivity issues”, law secretary Achal Sethi, who appeared through video conferencing, told the court that the CS was “busy in a meeting”.

J&K High Court Comes Down Heavily on Govt, Passes Searing Remarks on Its Conduct

“The ‘couldn’t care less’ attitude of the executive gives an impression to this court that it has to resort to firm measures to ensure that the orders passed by this court are complied with,” the J&K high court said.

Srinagar: The J&K high court has observed that a “sorry state of affairs” prevailed in the Union territory as the administration acted “consistently with utter contempt” for the judiciary and the judicial system had become a “cruel joke”.

A bench of Justices Javid Iqbal Wani and Atul Sreedharan made the remarks on August 5, which marked the fifth anniversary of the reading down of Article 370, while hearing a contempt petition against J&K chief secretary among four senior administration officials.

J&K’s finance secretary Santosh D. Vaidya and secretary of public works department Bhupinder Kumar joined the contempt proceedings through video conferencing while the state told the court that the secretary of the general administration department was on leave.

“As of now, this court is unable to ascertain as to who is lying. Both these versions are starkly disparate and in gross contradiction to each other,” the court observed, adding that the situation reflected a “shocking scenario where the executive is ignoring the orders passed by this court consistently with utter disdain, cocky that this court shall take no measures imperilling their liberty for their disobedience.”

The observation came in a petition challenging the pay disparity in two senior ranks in J&K’s public works department where the chief engineer and senior engineer are reported to be drawing equal salary, despite the former being of higher rank.

In an order on August 10 last year, the court ruled that “chief engineer being a higher post than the superintending engineer” was “legally entitled to higher pay scale”.

Citing a government order [Number 22-JK(GAD)] dated June 1, 2023, the high court held the chief engineer can’t be “placed at the same pay scale and at par with the superintending engineer.”

“Conferring same pay scales to two posts of different hierarchy certainly would violate Article 14 and 16 of the Constitution of India,” the court observed, asking the administration to end the disparity.

On August 5, when the case came up for hearing, the state told the court that it had filed a writ petition against the judgement in the Supreme Court.

However, citing the apex court’s website, the court observed that the petition was filed on June 25 this year (Diary Number: 27885/2024), 10 months after the order was passed and four months after J&K administration granted sanction to challenge it.

“There are (still) seven defects identified by the Registry of the Supreme Court but not a single one has been cleared till date i.e., two months after filing the Special Leave Petition. From the manner in which the Union Territory government has conducted itself, it is clear that there is an absolute lack of sincerity of purpose on its part to comply with the order passed by this court,” the HC bench observed.

The court said that 6,000 contempt petitions were pending and the litigants were “unable to savour the benefit of these orders” while observing that the “inordinate” delay in compliance of court orders suggested that “the very existence of this court is meaningless”.

“A few of these contempt matters are pending between 10-15 years and the cases pending between one to five years are the ones that run into thousands and has reduced the justice dispensation system in the UT to a cruel joke,” the bench observed

The bench continued: “This environment has come to exist on account of the excessive latitude being shown by this court, time and again, only to maintain a harmonious relationship between the judiciary and the executive.”

“The ‘couldn’t care less’ attitude of the executive gives an impression to this court that it has to resort to firm measures to ensure that the orders passed by this court and by other courts judicially inferior to the high court, are complied with in letter and spirit and are taken more seriously than the way it has been till date,” the court said.

The court warned of “precipitate measures” to “restore a semblance of sanity” in the administration of justice. “[The court] is, however, recording these observations herein so that the UT and the bureaucracy is put on guard that what has been happening till now with the orders of this court shall no longer be tolerated,” the court observed, while listing the matter for August 8.

The court ordered the four officers to appear “in person” on the next hearing, “If any of them does not comply with the direction for personal appearance, this court shall resort to coercive measures to secure their presence.”

The remarks came at a time when the judiciary and the administration are locked in a battle over the contempt proceedings against a senior Indian Administrative Services (IAS) officer and deputy commissioner of Ganderbal district, Shyambir Singh, who has been accused of harassing a judge over a judicial matter.

On August 2, the high court summoned the IAS officer, observing, “Any attempt by him to avoid service of summons or his non-appearance shall be viewed seriously by this court and the court shall resort to coercive proceedings to secure his presence,” a high court bench ruled.

However, the matter was later listed on August 12.

After Nearly 2 Years, J&K HC Grants Bail to Kashmiri Journalist Fahad Shah

Shah was held on charges of terrorism for publishing the article, ‘The shackles of slavery will break’, in his now-defunct magazine, ‘The Kashmir Walla,’ in 2011. The opinion piece was authored by Aala Fazili, a University of Kashmir scholar who has also been arrested in the case.

New Delhi: Nearly two years after his arrest, the Jammu and Kashmir high court has set the stage for the release of Kashmiri journalist Fahad Shah by granting him bail on Friday, November 17, in a case involving the publication of a “seditious” article in his digital magazine.

Shah was held on charges of terrorism for publishing the article, ‘The shackles of slavery will break’, in his now-defunct magazine, The Kashmir Walla, in 2011. The opinion piece was authored by Aala Fazili, a University of Kashmir scholar who has also been arrested in the case.

Shah’s counsel and senior advocate P.N. Raina said that the court quashed the charges under Sections 18 (terror conspiracy) and 121 (waging war against the country) of the Unlawful Activities (Prevention) Act and 153-B (imputations, assertions prejudicial to national-integration) of the Indian Penal Code against Shah.

“He (Shah) will face trial under Section 13 (abetting unlawful activities) of the UAPA and Sections 35 (receiving foreign funds illegally) and 39 (offences by companies) under the Foreign Contribution (Regulation) Act, 2010,” Raina told The Wire.

The case was filed by J&K’s State Investigation Agency at the CIJ police station in Jammu on April 4, 2022 (FIR No: 01/2022), around 11 years after Fazili’s piece appeared in the magazine. A chargesheet was filed in the case last year in March.

In April this year, the high court had quashed the Public Safety Act (PSA) invoked against Shah by terming the allegations of the J&K administration as “mere surmise” and “vague and bald assertions”. It also accused the authorities of snatching Shah’s “constitutional and legal rights”.

According to Amnesty International, the PSA is a “lawless law”, which has been used as a “revolving door” policy for suspects against whom the government in Jammu and Kashmir has little or no evidence to bring formal charges against them in the court of law.

Shah’s PSA dossier, accessed by The Wire, alleged that he was “filled with hatred against [the] Union of India”, and “promoted separatism”. It further alleged that his “activities seem to be prejudicial to the sovereignty, security, integrity, peace and tranquility of the UT of J&K and also the Union of India”.

The dossier also accused Shah of arranging “logistical support for anti-national activities” and “inciting violence thereby leading to disturbance in public order” while terming him as a “threat to public order.”

After the court quashed the PSA proceedings against him, Shah was arrested by J&K’s State Investigation Agency in the case in which he has now been granted bail. He has been granted bail in three other criminal cases brought against him by J&K Police for the reporting done by his magazine on Kashmir.

Shah was charged for the first time in May 2020 over the coverage of a gun battle between militants and security forces in Srinagar. In the encounter’s aftermath, local residents had alleged that security forces took away their precious belongings, a charge denied by them.

The allegations and the denial were widely reported by local and national media.

Then on January 30, 2021, Shah was booked under Sections 153 (provocation with intent to cause riot) and 505 (statements conducive to public mischief) of the Indian Penal Code for a report in The Kashmir Walla, which alleged that the Army was “pressuring” the management of a private school in Shopian to organise the Republic Day celebrations.

The Army had denied the charge and proceeded to file a criminal case against Shah, who was later granted bail by a court. Shah has reportedly faced six cases of intimidation between June 2017 and January 2021.

The third case pertains to the The Kashmir Walla’s coverage of a gun battle in south Kashmir’s Pulwama district in which three militants, including a top commander, were gunned down last year. The Kashmir Walla was accused of “glorifying terrorist activities” and causing “disaffection against the country” by alleged “incorrect reporting”.

On August 19 this year, the Union Ministry of Electronics and Information Technology pulled down The Kashmir Walla website under the provisions of the Information and Technology Act, 2000, a controversial law which has been criticised by the free speech activists.

Press freedom in India has suffered relentless blows in recent years under the Narendra Modi government. According to the World Press Freedom Index’s latest report, India slipped to 161 out of 180 countries this year, losing 11 more spots as compared to the 2022 ranking.

According to Paris-based press freedom watchdog Reporters Without Borders, India has been using “charges of defamation, sedition, contempt of court and endangering national security … increasingly .. against journalists critical of the government, who are branded as ‘anti-national’.” The government has denied these charges, accusing the watchdog of “subverting the democratic freedoms all over the world”.

Can’t Act as CID Mouthpiece: J&K HC Slams Authorities for Denying Passport to Mehbooba’s Mother

Justice M.A. Chowdhary, while hearing the petition of Mehbooba’s mother Gulshan Nazir, said it appears that there is no ground to refuse her request for issue or renewal of passport.

New Delhi: The Jammu and Kashmir and Ladakh high court has pulled up authorities for denying passport to People’s Democratic Party chief Mehbooba Mufti’s mother, saying the passport officer cannot “act as a mouthpiece” of the CID.

Justice M.A. Chowdhary, while hearing the petition of Mehbooba’s mother Gulshan Nazir, said it appears that there is no ground to refuse her request for issue or renewal of passport.

“Even, there is not an iota of allegation against the petitioner that may point out to any security concerns. The police verification report formulated by CID-CIK cannot override the statutory provisions of Section 6 of the Passport Act 1967,” the judge said in an order pronounced on Saturday (December 31, 2021).

The court said otherwise also, in the report relied upon by the respondents – the passport officer and the appellant authority – nothing adverse has been recorded against the petitioner with regard to any security concerns.

“The only aspect with regard to the petitioner is the reference of investigation by two agencies Enforcement Directorate and the CID-CIK with regard to some of the transactions regarding some bank accounts maintained by the petitioner either separately or jointly with Ms. Mehbooba Mufti,” it said.

Simply on the basis of the report of the Jammu and Kashmir Crime Investigation Department (CID) that has recommended that passport should not be issued, the passport officer, under the provisions of the Passport Act, cannot “shut his eyes and to act on that”, the court said.

Coming down heavily on authorities, it said since the passport applied for by the petitioner has not been issued as the same was not recommended for security clearance by the CID, the decision taken by both the passport officer as well as the appellant authority “is misplaced on account of security”.

The court said the refusal by the passport officer was “non-application of mind”.

“At least, the passport officer should have, in the background of the facts and circumstances, if required, asked the police and the CID agency as to whether there is anything adverse against the petitioner,” the court said.

“In such a situation without going into the police verification report, refusal on part of the passport officer simply be termed as non-application of mind,” it said.

After looking into the referred facts and circumstances, along with the CID report, the court said “The passport officer has not to act as mouthpiece of the CID”.

“When an authority is vested with the power, the same is to be exercised judiciously and not arbitrarily as has been done in the instant case,” it said.

Justice Chowdhary said it appears that the passport officer had acted on the forwarding letter of the CID instead of analysing its report in detail.

It said the police verification report prepared by the CID was with regard to two applications, one by the petitioner and the other by her daughter.

The report has exhaustively dealt with regard to the petitioner’s daughter making references to her ideology and activities which were termed as a risk to the security of India, the court said.

“However, there is no mention with regard to the petitioner in the report in question, on the basis of which recommendation was not made to re-issue passport in favour of the petitioner and the passport officer refused to issue the same for the reason of ‘security’,” it said.

The appellate authority also seems not to have perused the police verification report and upheld the order of the passport officer, “on the wrong premise of security without any foundation”.

The court said it is of the considered opinion that the ground on which the request of the petitioner for re-issue of the passport has been rejected “is totally untenable and unsustainable” in the eyes of the law.

The petitioner, who claims to be an octogenarian, in the absence of any adverse security report, cannot be deprived of her fundamental right guaranteed to her under Article 21 of the Constitution to travel abroad as an Indian citizen, it added.

Allowing the petition, the court set aside the orders impugned and asked the passport officer to consider the entire matter afresh and pass orders within a period of six weeks from the date the copy of the order is served upon him.

Incidentally, the same day as this verdict, Mehbooba had written a letter to Chief Justice of India D.Y. Chandrachud, saying that basic rights have now become luxuries in India.

“I write to you with a deep sense of concern and worry about the prevailing situation in the country, especially J-K. Your recent observations on the inability of lower judiciary to grant bail in ordinary cases in a functioning democracy as ours should have been adopted as a directive rather than just being consigned to a single column story churned out in newspapers,” Mufti said in the letter posted on her Twitter handle.

(With PTI inputs)

JK High Court Quashes Defamation Case Against Arnab Goswami, Aditya Raj Kaul

The court said that reporting allegations about the official duties of a public figure cannot be considered defamatory.

New Delhi: Quashing a defamation complaint filed by Peoples Democratic Party (PDP) leader Naeem Akhtar against Republic TV’s Arnab Goswami and journalist Aditya Raj Kaul, among others, the Jammu and Kashmir high court on Wednesday said that reporting allegations about the official duties of a public figure cannot be considered defamatory.

The court made the important observation that the media has a “bounden duty to bring to the notice of the viewers and readers the day-to-day events, particularly those relating to public figures and public servants concerning their actions/omissions affecting the public at large”.

According to Bar and Bench, the single-judge bench of Justice Sanjay Dhar quashed the defamation proceedings pending before the court of chief judicial magistrate, Srinagar.

The complaint against Goswami and Kaul, who was then an anchor for Republic TV, was filed in July 2018 under sections 499 (defamation) and 500 (punishment for defamation) of the Ranbir Penal Code before the court of Chief Judicial Magistrate, Srinagar.

Akhtar said that on July 4, 2018, Republic TV had broadcast a “defamatory and malicious news segment”. At the time, Akhtar was an MLA and had held the portfolio of works minister in the PDP-BJP coalition government before its collapse in June 2018. In the programme, Kaul, the anchor, and others discussed the allegations made by Khalid Jahangir, a member of the BJP, in a letter dated June 21, 2018 to the governor.

Jahangir had levelled allegations of “corruption and favouritism” against a “close aide” of the former chief minister of the state [Mehbooba Mufti].

Akhtar’s complainant said that even though the letter did not mention any person by name, yet Arnab Goswami, while reporting the said letter, “deliberately and intentionally” mentioned his name in connection with the allegations levelled in the letter.

He also alleged that the anchors of the programme, including Kaul, “repeatedly and intentionally, kept on mentioning Akhtar’s name in connection with the allegations made in the letter”.

The judge noted that after having “carefully watched” the news programme, which was submitted to the court, “I do not find any imputation or any allegation having emanated from the presenters of the news programme. The anchors and presenters only repeatedly referred to the letter of Shri Khalid Jahangir and read out contents thereof.”

The judge said that instead, “[I]t appears that the news anchors were at pains to emphasize the fact that their source of information is the letter in question and they go on repeatedly telling the viewers about the charges/allegations with each caption carrying question mark(?) at its end, thereby conveying to the viewers that the allegations/charges contained in the letter are yet to be established”.

By doing so, the channel took “due care that is expected of a responsible news channel”. In this context, it cannot be said that the accused intended to harm the reputation of the complainant, Justice Dhar said.

According to the order, shared by LiveLaw, the court also made some important functions to be performed by the media. Describing the media as the fourth pillar of democracy, Justice Dhar said it has a “bounden duty to bring to the notice of the viewers and readers the day-to-day events, particularly those relating to public figures and public servants concerning their actions/omissions affecting the public at large”.

The judge said that it is evident from Jahangir’s letter, though it does not mention the works minister or Akhtar, who the ‘close aide’ it refers to is.

“The accused/anchors have only stated the obvious. Anyone who possesses even elementary knowledge of who is who of Jammu and Kashmir, can name the minister who was holding [the] portfolio of works during the period referred to in the letter of Shri Khalid Jahangir. So, merely because accused/anchors
mentioned the name of the respondent in the programme may not be enough to impute mens rea [criminal intent] to the petitioners that they wanted to harm the reputation of the respondent,” the judge said.

The next question that needs to be answered, the court said, is whether reporting of allegations levelled by a senior office-bearer of a public sector corporation against a minister, touching the public duties of the said minister, would amount to defamation. “The answer to this question has to be in [the] negative. This is so because categorising as defamation, the publication of allegations/charges concerning public duties of [a] public figure recorded in a letter which is in [the] public domain would be an unreasonable restriction on the freedom of the press guaranteed under Article 19(1)(a) of the constitution,” Justice Dhar said.

According to Bar and Bench, the court said the magistrate, while issuing process against the petitioners, did not apply his mind to the whole material before him. In complaints alleging the commission of defamation, the responsibility of a magistrate to examine the material on record is of a higher degree, the order says.

Hence, the order issuing process against the petitioners is not sustainable in law, the court said, quashing the proceedings.

Justice Dhar’s order began with two quotes that offer some advice to people holding public offices. They are:

“Those who fill a public position must not be too thin skinned in reference to comments made
upon them. It would often happen that observations would be made upon public men which they know from the bottom of their hearts were underserved and unjust; yet they must bear with them and submit to be misunderstood for a time.”

“Whoever fills a public position renders himself open thereto. He must accept an attack as a necessary, though unpleasant, appendage to his office.”

Mehbooba Mufti Petitions HC After Authorities Keep Her Passport Request Hanging

According to her petition, the passport has been denied so far because of the lack of police verification.

New Delhi: Former Jammu and Kashmir chief minister and People’s Democratic Party (PDP) head Mehbooba Mufti has petitioned the high court, asking that the passport she has applied for be issued. According to her petition, the passport has been denied so far because of the lack of police verification.

Her last passport, Mehbooba says, was valid till May 31, 2019. On December 11, 2020, she applied for a new passport.“The Passport as per the instruction manual is expected to be dispatched within approximately 30 days,” her petition says.

The guidelines say that police verification must be done within 21 days. However, despite Mehbooba’s request to the senior superintendent of police, Srinagar, the verification request was not fulfilled and documents not forwarded to the concerned authorities, her petition says. “…administrative delay is a facet of arbitrariness and against the rule of law. Submitting of police verification report cannot be left to the sole discretion of the authority,” she argues.

Mehbooba has said that under Article 21 of the Indian Constitution, she as a citizen has the right to hold a passport. “The delay occasioned in issuing the Passport in favour of the Petitioner has an effect of imposing restrictions on the rights of the Petitioner vested upon her by the Constitution of India, which guarantees her freedom to travel abroad. It is essential to state here that right to travel abroad inheres in right to life and liberty as guaranteed under article 21 of the constitution of India.”

Also read: Waheed Parra Stares at Longer Incarceration as J&K Police Brings up New Case

The former chief minister has asked the court to direct the authorities to issue her passport, and respond to her request. She has also asked the court to take action against those who curbed her personal liberty by not responding to her passport request.

Mehbooba was placed under house arrest on August 5, 2019, when the Centre revoked J&K’s special status. Her detention lasted for 14 months, and she was finally released in October 2020. However, even since then, the PDP chief says she has been detained on several occasions – most recently when she wanted to meet the family of a young man killed in an encounter. “My residence has been turned into a fortress and I am not being allowed to move in the name of security,” the former chief minister told The Wire then.

From One Year of the Gag to the Next, ‘Normalcy’ in Kashmir Comes at a Price

Just when the central government was supposed to plan its course under the cold hand of reason, Modi’s pyromania in Kashmir comes with the potential to trigger a blowback that India may not afford.

Srinagar: From the central government’s perspective, the year that just ended signifies a triumph of sorts on the Kashmir front. Despite the fact that the Valley was still reeling from the chaotic aftermath of the end of its special constitutional status – the loss of statehood, its division into two, the world’s longest internet shutdown, mass detentions, a violent crackdown on protests and significant structural changes that Kashmiris would have never consented to – the year passed off peacefully. No uprising. “If Kashmiris are angry, then where is the unrest?” a senior police official casually asked me in early 2020. “Did you see anything happening?”

But an honest reading of events will tell us that the Centre is executing far reaching changes that will drastically alter the lives of Kashmiris as they know it with the support of a severe crackdown on any expression of dissent, thereby ensuring that no effective opposition or collective voice is ever mobilised. This, even as the rights of Kashmiris to their own legislature remain suspended, the right to protest or assembly denied, press freedoms abridged and modes of communication severely curtained, regulated and in many cases downright refused.

If this represents a triumph for the establishment, ordinary Indians too, in overwhelming numbers, are gripped by a sense of elation over the taming of the Kashmiris. In the popular view, the era of ‘appeasement’ that previous governments helped sustain has finally ended. In this telling, the ingratitude of Kashmiris – dissatisfied despite their ‘special status’ – needed a draconian response. Inaction breeds immunity. And immunity, a sense of entitlement – which was actually the reason why Kashmiris managed to annoy India this long, or so the logic goes. But is the Centre’s ‘solution’ really a solution? Will its monumental assault on civil freedoms, the crackdown on civil society, the climate of fear and intimidation engendered through vengeful and selective pursuit of cases by central agencies and detentions and the indiscriminate [mis]application of a host of draconian laws eventually produce the social and political obedience in Kashmir that Narendra Modi is promising?

A Central Reserve Police Force (CRPF) officer patrols an empty street during a lockdown on the first anniversary of the revocation of Kashmir’s autonomy, in Srinagar August 5, 2020. Photo: Reuters/Danish Ismail

An economy that can’t breathe

There’s one more aspect which has thrust its way into the lives of Kashmiri people: the economic strangulation. Two back-to-back lockdowns spanning an entire year have all but gutted trade and commerce in Kashmir accounting for the loss of Rs 40,000 crore and causing 5 lakh layoffs as internet closures forced entrepreneurs to flee, BPOs to wind up, artisans to lose contracts and the tourist business to crash. For a regional economy that contributes only 0.77% to India’s GDP, that forced diminution is excruciating. Add to this, the rising debt of business establishments. And while all of this was happening, the J&K government last month ordered banks to secure mortgaged properties within 60 days under the SARFESI Act, whose application to Kashmir in 2015 itself was a fairly controversial move since it contravened the provisions of the erstwhile Article 370. This astounding economic squeeze has percolated down to ordinary Kashmiris, resulting in an unprecedented financial crunch perhaps much harsher than the one inflicted during the economic blockade imposed upon Kashmiris in 2008.

Also read: With One Lockdown After Another, J&K’s Economy is Shuttered and Shattered

No room for peaceful protest

Under such conditions, it’s absurd to expect that Kashmiris can mount an uprising, at the cost of their lives, their peace of mind and their livelihood. In 2020, such a civil unrest – to which Kashmiris are not historically unaccustomed – could barely materialise given their present situation. Yet, a few days ago, I chanced upon a small video clip of India’s National Security Advisor where he credits the lack of unrest to the National Investigation Agency’s “efficient” work of tracking “terror funds” – a believable conjecture for a large majority of ‘patriotic’ Indians whose information deficiency regarding Kashmir is only matched by their zeal to look other way as the central government doubles down on the erosion of dignity of people in J&K.

Seventeen months after the ‘integration’ of J&K with the rest of India, Section 144 – which bars the assembly of more than four persons – is still in place and its enforcement has been unmistakably rigorous. Just wrap your head around this: Less than two percent of all individuals arrested in militancy-related cases have actually faced conviction in J&K even as jails across the Union territory are overflowing with prisoners beyond their carrying capacities with under trials accounting for 90% of inmates. This empirically confirms how mass detentions have been an indispensable tool in the hands of authorities in J&K, designed not to bring down crime, but to curb dissent and the right to peaceful political mobilisation. As any political scientist will tell you, it’s the violent suppression of peaceful political action that ultimately breeds violent militant response.

The detention of Shopian’s Waseem Ahmad Sheikh is a case in point. Waseem was detained as part of the crackdown to quell protests against the scrapping of Article 370 but the district’s top civil servant Yasin Choudhary – who authorised his detention – reportedly did not furnish the grounds. Here’s what J&K high court observed, before quashing Waseem’s PSA last month: “So far as the…non-communication of the grounds of detention is concerned, a perusal of file reveals, that there is nothing to show or suggest that the grounds of detention couched in the English language were explained to the (detainee) in a language understood by him…[and since]… there is no material to that effect on record…the grounds of a challenge set up by petitioner succeed and the detention stands vitiated.”

Kashmiris walk past broken window glass after clashes between protesters and the security forces on August 17, 2019, in Srinagar. Photo: Reuters/Danish Ismail

That means Waseem served 400-plus days of unlawful detention. How many such individuals like him continue to languish in jails under unlawful detentions is hard to ascertain since a majority of the over 600 habeas corpus petitions filed at the J&K high court since August 2019 remain pending, as per the J&K High Court Bar Association.

Since the likelihood of public protest was already thwarted, it was only natural for the administration to doggedly pursue individuals who used their freedom of expression – written, spoken or otherwise – as a means of registering annoyance or resentment against the government’s policies.

Social media clampdown

Hence, one of the first cases that J&K’s newly established Cyber Police lodged was of an open FIR under provisions of Section 66A of the Information Technology Act and the Unlawful Activities (Prevention) Act (UAPA) against individuals who accessed the internet through proxy networks and “propagated secessionist ideology”. Never mind that Section 66A of the IT Act was struck down by the Supreme Court way back in 2015. Later, the police went into overdrive, booking half a dozen people in less than one month for the nature of the content they posted on social media. The Cyber Police have also been accused of summoning Twitter users in Kashmir and intimidating them for their social media posts critical of the government. Some social media users alleged they were called to interrogation centers and subjected to beating.

Also read: ‘The Assault Is on Journalism’: An Interview With Kashmiri Journalist Gowhar Geelani

Under the UAPA, the J&K authorities have detained individuals for “provocative sermons”, for “playing cricket in memory of a dead militant”, “for organizing protest in university allegedly against bad quality of food” and for “shouting Azadi slogans during Ashura procession.”

Additionally, the Modi government, through the NIA, struck a mortal blow on human rights activism in Kashmir. On allegations that funds were being raised abroad to support “separatist activities” in J&K, the agency raided the offices of the Association of Parents of Disappeared Persons (APDP) and the Jammu and Kashmir Coalition of Civil Society (JKCCS) both of whom have been influential in documenting the scale and intensity of rights violations in Kashmir. In fact it was the reports of the JKCCS that formed the backbone of the first ever human rights report published by UN Human Rights Council in 2018 calling for an international inquiry into multiple rights violations in Kashmir. On the other hand, APDP – supported by grants from the United Nations Voluntary Fund for Victims of Torture –has produced damning reports on cases of alleged enforced disappearances in Kashmir. Its founding members were felicitated with the prestigious Rafto Peace Prize in 2017. The seizure of USB drives and documents from the APDP office have led to fear of reprisals against victims of alleged torture and enforced disappearances who had recorded their testimonies with the NGO anonymously.

Censorship by any other name

But it was ultimately press freedom in Kashmir which bore the worst assault of the crackdown in 2020, with the police lodging various cases against journalists and editors. In April, the police booked noted photojournalist Masrat Zahra under UAPA for uploading a picture of Shia demonstrators carrying a poster of slain militant Burhan Wani. A day later, the police also booked journalist and commentator Gowhar Geelani for activities deemed “prejudicial to the integrity of India.” Similarly, an FIR was registered against Peerzada Ashiq, a correspondent with The Hindu newspaper whom the police accused of “inaccurate reporting.” Naseer Ganai, who reports for Outlook magazine was summoned for reporting about a strike call issued by the Jammu Kashmir Liberation Front. At least twice, the police summoned Fahad Shah, editor of a Kashmir based weekly magazine. His publication has accorded fearless coverage to allegations of human rights abuse by the security forces.

File photo of journalists protesting against the restrictions on the internet and mobile phone networks at the Kashmir Press Club during the lockdown in Srinagar last year. Photo: PTI

Editor Qazi Shibli, who previously served internment for nine months under PSA for reporting about the surge in troop deployments, was detained again in August and later released. When a Kashmiri journalist, Auqib Javeed, reported on the Cyber Police’s alleged harassment of social media users, he was slapped by a police officer and threatened with legal action – although the police officially denies this. During the recent District Development Council elections, three reporters associated with national TV media also accused a senior police officer from South Kashmir of assaulting them when they attempted to verify allegations of voting being stopped in favour of BJP candidates. Furthermore, the J&K government also sealed the Srinagar office of Kashmir Times newspaper, claiming misuse of the property. Its editor Anuradha Bhasin, was lead petitioner in the Supreme Court against the internet shutdown and communications blockade in Kashmir.

The alarming frequency of these incidents underscores the tough conditions under which reporting takes place in Kashmir. It also means that the Modi government has acted vindictively against modes of communication over which it does not exercise full control. Capping all these developments is the new Media Policy spelt out by the government, which empowers the authorities to strike off journalists from official empanelment, refuse accreditation, pull out advertisements and also punish publications for “anti-national” reporting. With these draconian provisions read into the official policies, censorship in Kashmir has become institutionalised. For state functionaries, it no longer remains an offence whose likelihood of commission is determined by the lack of accountability.

Also read: Why Journalists Are Worried About the New Media Policy in Jammu and Kashmir

The gag policy has been so stringent and pervasive that even Kashmir’s high court bar association was not spared. Two months ago, it was barred from holding any elections until it clarified its position on terming Kashmir a disputed territory. The order was passed under the aegis of senior civil servant Shahid Choudhary. Even the last surviving vestiges of democratic checks and balances in Kashmir are facing unprecedented erasure. In 2020, the number of cases of no-response from authorities to various RTI applications rose alarmingly, rendering this important weapon against official subterfuge toothless.

But why is such a harsh, broad-based crackdown still continuing despite the government successfully containing the fallout of revocation of special status? That’s because the Aug 5, 2019 decision was a superficial, if symbolic, intervention. The real changes were instituted over the past 12 months.

Marginalising a people in their own homeland

The central government in January reduced the share of native candidates entering the all India civil services from 50% to 33%, which means there will be an increase of non-local officers in J&K who run the police and civil administration. The same month, an IPS officer who never served in Kashmir was given sweeping authority over security and policing, including direct control over the reshuffling of SHOs.

The administration has earmarked 6200 acres of land across J&K for proposed corporate takeover, reassigned Srinagar airport’s security from the J&K Police to the CISF, opened mineral resource extraction to non-local bidders and annulled the five year relaxation for J&K civil service aspirants. It has empowered the armed forces to declare any area as ‘strategic’ and permit constructions outside the Cantonment board and narrowed down judicial recourse for locals who many stand to suffer in case of a corporate takeover.

It also enacted policies that incentivise housing for slum dwellers and low income groups – whose presence in Kashmir is sparse but who, coming from various parts of India, could be encouraged to settle in UT. It enacted policies that abridge the authority of future chief ministers by undermining their power to take decisions concerning the civil service, police and anti-corruption bureau.

A man rows his boat on Dal Lake in Srinagar, Kashmir, India, September 12, 2020. Photo: Thomson Reuters Foundation/Athar Parvaiz

The Modi government also cleared the decks for imposition of a new property tax in the UT that political parties believe “will overburden people who are struggling to make ends meet”. It also ended the 131 year reign of Urdu as sole official language of the J&K, amended the Panchayati Raj Act and made DDCs electable through direct vote, consigning sarpanches into irrelevance. The J&K government is now allowed to advance the retirement age of officials to 48 years, escalating fears that employees dissenting with the state’s political view might be declared as “deadwood and axed” without the matter going to court or tribunal.

Most significantly, it opened J&K land to outsiders, liberalised criteria to acquire domicile with provisions for punishment against officials if they failed to furnish it expeditiously, overturned the historic land reforms of Sheikh Abdullah and enacted laws that make the stay of migrant labourers in J&K attractive. It attempted to weaponise the Roshini act to squeeze our more land from Kashmiris but scrambled to file a review petition in court, challenging some on its own contentions, when people in Jammu erupted in anger as the revocation of law affected them more.

All these changes and manoeuvres only reaffirm the suspicion of Kashmiris that the Modi government is seeking to alter the demographic composition of J&K, marginalise them in their own land, erode structures of self-government, disempower them politically and then muzzle all voices of protest. The Indian state is literally creating a pressure-cooker situation in Kashmir.

Also read: The Second Sale Deed of Jammu and Kashmir

The new ‘normal’

Does that make Kashmir normal? Yes, by throwing the Indian constitution to the wind and violating various international rights declarations to which India is a signatory. By incurring denunciations and disapproval from Amnesty International, Human Rights Watch, UNHRC, CPJ, RSF, Economist Intelligence Unit, Freedom House, top European and American lawmakers, international academics, journalists and publications. And by precipitously slipping down on several indices measuring the health of democracy, human rights, press freedom and independence of judiciary. The Indian government has certainly put together conditions in Kashmir which convey some semblance of “normalcy” – if that’s how we describe the lack of civil and political unrest. But how long will that “normalcy” sustain in the region, trapped as it were, in the mix of political experimentation, severe repression, simmering anger, military and police excesses, lack of democracy and civil freedoms and a judiciary that looks the other way?

Then there is also China, which has emerged as a new player in the whole scheme of things. Let’s not forget that Beijing is under obligation to demonstrate to the “Quad” that its supremacy will remain unchallenged in the region. The next few years are, therefore, crucial. And just when the Indian government was supposed to plan its course under the cold hand of reason, Modi’s pyromania in Kashmir comes with the potential to trigger a blowback that India may not afford.

Shakir Mir is a Srinagar based journalist.

J&K HC to Decide on Review Petitions Against the Scrapping of Roshni Act: SC

The Roshni Act was enacted in 2001 by the then National Conference government with the twin objective of generating resources for financing hydropower projects and granting ownership rights to the occupants of state land.

New Delhi: The Supreme Court on Thursday asked the Jammu and Kashmir high court to decide petitions seeking the review of its verdict of scrapping the Roshni Act, on December 21. The striking down of the Roshni Act conferred proprietary rights to occupants of state land.

The apex court said that it would hear appeals challenging the October 9 verdict of the high court filed before it in the last week of January.

A bench headed by Justice N. V. Ramana considered the oral assurance of solicitor general Tushar Mehta, who appeared for the Jammu and Kashmir administration. He said that no coercive action would be taken against those petitioners who have approached the top court in the matter as they are not “land grabbers or unauthorised people”.

Mehta told the apex court that the Union Territory of Jammu and Kashmir has already filed a review petition in the high court. He further said that the authorities are “not against bonafide and common people who are not land grabbers”.

The bench, which also comprised justices Surya Kant and Aniruddha Bose, said that pendency of appeals before the apex court would not come in the way of the high court in deciding the review petitions pending there.

The Jammu and Kashmir high court had on October 9 declared the Roshni Act “illegal, unconstitutional and unsustainable” and ordered a CBI probe into the allotment of land under this law.

Also read: How J&K’s Roshni Act Was Used to Keep the Poor in the Dark

Background

The Roshni Act, or the Jammu and Kashmir State Land (Vesting Ownership to the Occupants) Act, was enacted in 2001 with the twin objective of generating resources for financing power projects and granting ownership rights to the occupants of state land for a fee decided by the government. It was passed by the then National Conference government led by Farooq Abdullah. The Act was named Roshni because its aim was to generate funds for hydroelectric power projects.

In 2014, a CAG report flagged irregularities under the Roshni scheme. As per details made public, the transfer of ownership rights was approved for 33,000 kanals in the valley as against 314,000 kanals in Jammu. “The approving committee fixed the total price of this land at Rs 317 crores but only Rs 76 crores were recovered. While the beneficiaries in Kashmir paid Rs 54 crores of the Rs 123 crores, only Rs 22 crores of the Rs 194 crores was recovered in Jammu,” The Wire reported.

The law attracted allegations that it was fuelling corruption and unauthorised usurpation of public land in J&K. Therefore, in November 2018, then governor Satya Pal Malik repealed the Act.

(With inputs from PTI)

Explained: Why the J&K Govt Is Appealing Against the HC’s Order Nullifying Roshni Act

The discourse surrounding Roshni Act stoked a wave of communal sentiment in the Jammu region where fears of a “demographic change” by Muslims have been voiced. Why the sudden change of heart, then?

The Jammu and Kashmir government has moved an application before the J&K high court to advance its hearing of the review petition on the October 9 judgment of the J&K high court where a division bench of Chief Justice Gita Mittal and Justice Rajesh Bindal had held that the Roshni act was “completely unconstitutional, contrary to law and unsustainable.”

Last week, the gubernatorial administration of the J&K Union Territory sought a review of the judgment on the State Land (Vesting Ownership to the Occupants) Act, 2001, which is known as the ‘Roshni Act’. The division bench, in the October judgment had ordered a CBI probe into irregularities under the Act.

On Monday, the high court had adjourned the hearing to December 16. On December 8, today, the UT administration, through additional advocate general Aseem Sawhney, moved an application to advance the hearing.

The Roshni Act guaranteed the transfer of proprietary titles to occupants of state land in return for a fee determined by the government, paving way for regularisation of encroachments on public land and generating resources to fund power projects in the former state. Hence, the name ‘Roshni’.

However, the legislation attracted allegations that it was fuelling corruption and unauthorised usurpation of public land in J&K. In November 2018, J&K’s then governor Satya Pal Malik repealed the act on the ground that it had failed to meet its objectives as only a meagre amount was recovered against the expected and speculated revenue of Rs 25,000 crores.

Also read: How J&K’s Roshni Act Was Used to Keep the Poor in the Dark

Most significantly, the discourse surrounding Roshni Act stoked a wave of communal sentiment in the Jammu region where fears of a “demographic change” by Muslims have been voiced by a number of commentators in civil society and the press.

Speaking to The Wire, Sawhney confirmed that the court has advanced the hearing to December 11. He also said that the government’s apprehensions with regards to a “roving inquiry” by the CBI were also submitted.

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J&K’s last governor Satya Pal Malik. Photo: PTI

“Certain verbal directions were given to the CBI counsel, like the one that the agency will submit reports in a sealed cover. We were apprehensive that CBI will go into a roving inquiry and reopen cases already closed by the anti-corruption bureau, as it is mandated by the judgement that they will open. But we, as government, wanted a review on that now that ACB is not under any political dispensation,” he said.

“It’s under the Ministry of Home Affairs. We were hopeful that may be the court appreciates that point,” he added.

The second reason for urgency, Sawhney said, was that the government did not want poor people with small land holdings to suffer and be clubbed with big sharks. “The honourable court did agree that it was the big sharks that CBI should go after first,” he said.

Third, Sawhney said, the government has requested that this judgement not stand in the way of a possible policy that the government is planning to bring for individuals who have had lease over land for the last 40-50 years.

“It’s like you have no window for freehold rights for years and then suddenly Roshni comes in and you get a window and you pay money and get mutations done and then court says this is also encroachment. You cannot term these leaseholders as encroachers. The Chief Justice has verbally observed that there’s no hindrance and that we can come up with a policy towards that effect. We wanted the honourable high court to know we were not mellowing down or bypassing the judgment,” Sawhney said.

Also read: J&K: Apni Party Spokesperson Among ‘Beneficiaries’ of Roshini Act

The Wire also spoke to Monika Kohli, the CBI counsel, who refused to comment on J&K’s government’s submission in court. “The matter is sub-judice. Also, it’s the high court that has entrusted this investigation to CBI. The UT government has filed a review petition, a copy of which we have not been given yet. We will see what they have alleged and what they want. The matter has been advanced,” she said.

Kohli also added that as per the previous order, the CBI was told to file an Action Taken report within eight weeks. “That [deadline] was supposed to expire by the 10th of this month so we will be filing it in a day or two and give it to bench directly because our report is already ready. The moment we get the report we will respond and put forth our submissions. Only the court will see what this investigation is and whether it will rest with the UT or with the CBI. We are doing everything with honesty, we have dug out everything properly,” she said.

Why is this review petition significant?

The government’s request for reviewing the order is significant given that the Bharatiya Janata Party had weaponised the high court’s ruling and appealed to local fears about an alleged demographic reduction in Jammu ahead of the DDC polls. In fact, last month, senior BJP leader Kavinder Gupta called the Roshni scheme “part of bigger conspiracy to carry out ‘land jihad’ in J&K.”

Gupta also claimed that it was a “well-knit plan that may have been launched from across the border in connivance with Pakistan’s overt or covert supporters here, in an attempt to change the demography of the Jammu region as the process was going on under the nose of authorities in the erstwhile state for the past several years to accommodate people from a particular community by legalising the illegal occupants of the land and making them the real owner.”

An engineer walks on an iron structure at the construction site of a railway bridge in Kouri in Reasi, Jammu and Kashmir, March 4, 2015. Photo: Reuters/Mukesh Gupta

Another rightwing party IkkJutt has also been at the forefront of the campaign against this purported “ploy” by Muslims to alter Jammu’s demography. IkkJutt was formally launched as a political party last month, ahead of the DDC election. The party has previously rallied against recruitment of Class IV employees through a common written test across districts and divisions, arguing that it will lead to a “wave of Kashmiri settlements in Jammu.” It supports a separate Jammu state and further bifurcation of the Kashmir valley, with one half assigned exclusively to Pandits.

Also read: Why India’s Governance Policies Often Ends up Being Suboptimal

As government began divulging the details of beneficiaries of the Roshni scheme, it turned out that claims of outsized patronage to allegedly facilitate large scale settlements of individuals from a “particular community” were unfounded. For example, of the 44,915 kanals of state land regularised under the now annulled Act in Jammu city, only 1,180 kanals were under the occupation of Muslims.

In 2014, a CAG report into irregularities in the transfer of land from 2007 to 2013 under the Roshni scheme was tabled in J&K assembly. As per details made public, the transfer of ownership rights was approved for 33,000 kanals in the valley as against 3,14,000 kanals in Jammu.

The approving committee fixed the total price of this land at Rs 317 crores but only Rs 76 crores were recovered. While the beneficiaries in Kashmir paid Rs 54 crores of the Rs 123 crores, only Rs 22 crores of the Rs 194 crores was recovered in Jammu.

Therefore, if the government started to recover land in the Jammu region, it would have disproportionately affected the locals instead of members of a “particular community”. This is also why a strong undercurrent of anger has been finding expression at large gatherings addressed by Dogra leaders in the Jammu region.

In the review petition, the J&K administration has admitted that, “Large number of common people would suffer unintentionally…including cultivators and individuals residing in dwelling on small areas…and are unfortunately clubbed with rich and wealthy land grabbers…who have obtained the title over the state land through provisions of the now struck down Act.”

J&K government has also voiced “apprehensions that Hon’ble Court’s verdict may lead to an unintended roving inquiry by the CBI which may go on endlessly without generating the results…It is our submission that it must not have been Court’s intent to have a detailed investigation into thousands of government functionaries who implemented the Act, as it was framed then without any mala fide intent.”

‘Corruption’

In fact, the J&K government has also requested that cases under investigation by the Anti Corruption Bureau should not be transferred to CBI by citing that this may cause a delay in bringing the guilty to the book. Unless the intent of fraud or manipulation does not surface, the petition implores, the cases should stay with the ACB. It is pertinent to mention that in October this year, the ACB indicted a top official of J&K government for allegedly misusing his position to transfer state land in Gulmarg in 2009 in violation of Roshni Act. He continues to hold office.

“It seems as though the petition was drafted by the bureaucrats themselves to shield them from any official action,” Sheikh Shakeel, a Jammu based lawyer told The Wire.

Also read: Top BJP Leaders Among ‘Illegal Occupants’ of Govt Housing in Jammu and Kashmir

“The government initially claimed it was a surgical strike against land jihad but then figures came forth ultimately and this complex web of fabrications was done with. Now it’s clear, if it’s anyone who is going to be deprived of land, it is members of their own constituency and they can’t afford to lose them. The cat is out of the bag.”

Land politics and an escape route

Shakeel also questioned the wisdom behind making economic status a basis for determining criminality. In the petition, J&K government has sought to distinguish common people from “rich and wealthy land grabbers”.

“Whether you carry out a theft on Rs 100 crores or just Rs 500, in both cases you are going to be slapped under the same Section 379 of the IPC,” he said. “How can you distinguish who is influential land mafia and who is poor? Government has no roadmap or action plan on it.”

As Roshni Act became a vehicle for political parties to deepen communal polarisation in Jammu, what was lost in the din was the essence of the very high court ruling which had observed:

“The bureaucracy and government officials are enjoying huge salaries and benefits for their acts of omission and commission each of which tantamount to a penal offence and have thus actively encouraged usurpations of public lands.

“Those in power, authority and the respondents have completely failed to discharge their constitutional functions, their statutory duties and public law obligations towards the public to whom they owe their very existence.”

It further observed, “The Anti Corruption Bureau has admitted in its report that “there was ‘a police-bureaucratic-political-business-media nexus’ for adopting the attitude of ‘Shut-Eye’ by the Revenue Department in respect of Khasra No. 781”.

The court was referring to 154 kanals of land in Deeli owned by the Jammu Development Authority, which according to ACB’s report, has been illegally used to construct the banquet halls named Jammu Plaza and JK Resort, the houses of bigwigs such as former MLAs Raman Bhalla, Subash Choudhary, Om Parkash, retired Superintendent of Police Choudhary, Deputy Superintendent of Police Mirza, Mohan Meakin, the Anchor Firm, and the office and studio of the local TV channel JK News.

“J&K’s bureaucracy is misleading the Lieutenant Governor,” said Ankur Sharma of the Jammu-based IkkJutt Party. “They are trying to wash their hands off their sins. These are also tactics to cripple CBI and protract the whole issue.”

Security forces in Jammu on August 5. Photo: Reuters/File

Sharma said that there was a class of people in Jammu who stood to suffer. “For the last 60 to 70 years, there are people in Jammu who have been tilling on agricultural land. They have a genuine case but they can still claim ownership under Agrarian Reforms Act which entitles the farmer tilling on the land from 1971 onwards to claim ownership. Section 4 and 8 of Act addresses this issue. But what successive governments in J&K did was that they did not declare the ownership of these lands and it continued to reflect as public land in government records. Instead of applying for a review, they just have to implement Agrarian reforms act which they are not doing,” he told The Wire.

Also read: J&K Govt’s New Domicile Certificate Rules a Move to Undercut Resistance from Kashmiri Officials?

Sharma also alleged that land mafia in Jammu was already dividing bigger plots into smaller chunks of land so that they case use the proposed “legal difference” between small land holders and wealthy beneficiaries as an escape route.

A lot of questions have also been asked as to why the government was disproportionately interested in lease-held land in Kashmir. “Instead of distinguishing between the common man and a wealthy beneficiary, the government should ascertain each case of land grabbing individually,” said Sheikh Showkat, a Kashmiri legal scholar.

“As far as I know, no grabbing has taken place in Kashmir. While influential officials may have managed to legitimise their occupation of land and avail themselves of benefits, a majority of people in Valley won’t even know if they have legal ownership on the land they occupy or is it Nazool, which is basically leasehold land. For example in Lal Chowk, most land with poor people is Nazool. These people have been in possession of this land for hundreds of years. It is not a criminal act. This law was legitimately passed by a legislature,” Showkat added.

A lot of hospitality infrastructure owned by local entrepreneurs sits on such land and big Indian business firms are unlikely to step in unless the significant chunk of this land is recovered, experts believe. While schemes to confer proprietary rights over leased lands have already been rolled out elsewhere in the country, especially in Delhi, it is quite unusual that a similar scheme in J&K should face opposition from the government.

“Government probably wanted land for new settlements but it played out just like demonetisation did in 2016,” Showkat said. “Eventually they realised they might end up alienating their own constituency. Hence, the review petition.”

Shakir Mir is a Srinagar based journalist.

How J&K’s Roshni Act Was Used to Keep the Poor in the Dark

Enacted in 2001 to raise funds for hydel power projects by selling state-owned land to its encroachers, the Act has now been declared unconstitutional, leaving thousands defrauded and possibly homeless.

Srinagar: The Jammu and Kashmir administration’s plan to evict encroachers on state-owned land and retrieve all the land distributed under the controversial Roshni Act within six months has left thousands of mostly poor people in the Union territory defrauded and terrified of possible homelessness.

In 2001, when the Roshni Act was enacted by the then J&K government led by Farooq Abdullah, people who had encroached on state-owned land were sold ownership rights to the land. Some of these people then sold tracts of the land they had purchased to mostly poor people and rapid construction took place in every corner of J&K.

The law’s stated aim was to tackle the electricity crisis in the state and generate funds to construct hydel power projects by transferring the proprietary rights of the state-owned land to those who had illegally occupied it before 1990, subject to payment at the market rates prevalent at that time.

Under the Roshni Act, massive buying and selling of land took place across the Valley. People invested lakhs of rupees to construct their homes, shops and other buildings.

The selling and buying of land under the Act was verified and approved by the revenue department concerned, led by revenue inspectors and first class executive magistrates. The proper mutations were done and land documents were given to people from time to time.

Calling out corruption

This February, by the time the Roshni Act had benefited 30,000 people, a rightwing Jammu-based group called IkkJutt alleged that the Act had been passed to wage a ‘land jihad’ in the state and change the demography of Hindu-majority areas in Jammu.

Also read: Gupkar Alliance Makes a Consequential Decision: Finding Answers Through the Democratic Process

In 2018, Satya Pal Malik, the then governor of the state of J&K, repealed the Roshni Act, putting a stop to transactions under the act. Two years later, on October 31, 2020, the J&K administration stated that the Roshni Act had “failed to realise the desired objectives and there were also reports of misuse of some of its provisions”. It said there had been allegations of corruption and the Act had failed to deliver the benefits it had been envisaged for.

The administration’s statement came three weeks after the Jammu and Kashmir high court termed the Roshni Act unconstitutional and ordered a CBI probe into an alleged land scam worth Rs 25,000 crores.

While hearing a public interest litigation filed in 2011 by S.K. Bhalla through his lawyer Sheikh Shakeel and a civil miscellaneous petition filed in 2014 by advocate Ankur Sharma, both alleging large scale encroachments of state and forest lands in J&K, a division bench of the high court comprising Chief Justice Gita Mittal and Justice Rajesh Bindal in its order last month came down heavily on the authorities.

Following the court’s decision, the administration of J&K led by Lieutenant Governor Manoj Sinha declared that all the actions taken under the J&K State Land (Vesting of Ownership to the Occupants) Act, 2001 – also known as the Roshni Act – are “null and void”.

Women cross the Dal Lake in July. Photo: Reuters

The administration said, “The J&K administration has decided to implement the court order in which it declared the Jammu and Kashmir State Land (Vesting of Ownership to the Occupants) Act, 2001, as amended from time to time as unconstitutional, contrary to law and unsustainable.”

When the Roshni Act was passed, the government at that time had estimated that 20,64,972 kanals (one kanal = 505.85 square metres) of state land worth approximately Rs 25,448 crores had been encroached upon. The law was modified under subsequent National Conference, Peoples Democratic Party and Congress governments, but allegations of corruption and nepotism ruined the scheme.

In 2014, a report by the Comptroller and Auditor General of India noted irregularities in the transfer of encroached land to its occupants. According to the report, the scheme had failed to meet its purpose. Against the target of Rs 25,448 crores, the scheme had generated just Rs 76 crores between 2007 and 2013.

Also read: J&K Police Suspend Info Gathering Exercise in Jammu’s Muslim-Majority Areas After Outcry

According to a report in Tehelka, the beneficiaries included political parties like the Congress and the National Conference. Their headquarters in Kashmir, on land owned by the Khidmat trust and Nawai Subah Trust, occupy prime real estate in upmarket areas of Srinagar.

Other beneficiaries included Ghulam Mohi-ud-Din Malik, a former J&K assembly speaker, former member of the legislative council K.K. Amla, retired bureaucrats including Syed Mohammad Aga, former chief secretary of J&K, and Mohammad Shafi Pandit, former J&K public service commission chairman, retired judges including Hakeem Imtiyaz Hussain, former J&K high court judge, and doctors including the valley’s leading nephrologist, Dr Muneer Khan.

The State Vigilance Commission (SVC) had also registered FIRs against Baseer Ahmad Khan, the current advisor to the J&K lieutenant governor, as well as another IAS officer for the alleged misuse of their official positions for the illegal transfer of government land in Gulmarg, Kashmir’s famous ski resort, by misusing provisions of the Roshni Act.

Let there be light

Sources in the administration told The Wire that land grabbing had taken place due to sloppy governance, with political elites encroaching on valuable land mainly in upmarket areas of Srinagar city and the poor doing the same for inexpensive land.

The abrogation of the Roshni Act has now scared the poor who, over the years, had been lured by the elite classes to buy this state-owned land with the utmost support from the government.

People who live hand to mouth had managed to purchase a few marlas of land (one marla = 25-29 square metres). They now worry about their properties and castigate the National Conference government which “committed the fraud for which the poor are bearing the brunt”.

“It was the government, first of all, which asked people to file an application and pay a certain fee to become land owners. The fees were paid as per government norms and the property was regularised in the hands of the owner. Now after 20 years when all my hard-earned money was used to construct my house, how can the government demolish my house and turn me homeless?” asked a 55-year-old man in south Kashmir’s Pulwama district.

Also read: ‘We’re Only Used to Garner Votes’: Why Kashmiri Pandits Have Lost Faith in the BJP

Another elderly woman in Tral Township in south Kashmir told The Wire that it would be an injustice if the government demolished her one-storey house. “I am poor and my husband is a labourer. We purchased our 12 marlas of land from someone who did not tell us it was state-owned land. Now that I have constructed my house, how can the government make my family homeless? Where will we go and whom should we ask for shelter,” asked the woman who refused to be identified.

When she bought her 12 marlas of land, the government had provided her with proper land ownership documents as well as an affidavit signed and stamped by the revenue inspector. “The government has been keeping poor people in the dark. I hope no one is made homeless,” said the woman.

Even before the Roshni Act was passed, several very poor families were defrauded when they attempted to purchase land. Sources in the revenue department told The Wire that from time to time, on the directions of ministers, top bureaucrats and political workers, revenue inspectors were told to submit the wrong details in the land documents, resulting in the fraud and deception of the poor buyer.

Land documents available with The Wire confirm these revelations. For instance, some of these documents bear fake khasra numbers (plot or survey number).

Abdul Raheem (name changed) is one of the many people who purchased land, received the relevant documents duly stamped and signed and then years later was informed that he had bought state-owned land that had not actually belonged to the person Raheem had bought the land from.

“In 1994, I purchased 12 marlas of Shamilat-e-Deh land for which the revenue inspector concerned provided me with proper land documents, including an affidavit. The documents were signed and stamped by revenue officials and subsequently, I made a payment to construct a house. The municipal committee officials concerned visited the spot and approved the construction work. Within a few months, the J&K power development department provided me with a registered electricity connection. This was followed by a registered water supply connection from the government’s Jal Shakti department. Over the years, the road and buildings department constructed a road for the people who lived here,” said Abdul Raheem (name changed). “If all this happened on what is now being called ‘state land’, how would the government approve the purchase of this land and provide utilities to illegal encroachers?”

Raheem now urges the government to come up with a policy to grant ownership rights to the small beneficiaries of the Roshni Act.

Irfan Amin Malik is a journalist based in Kashmir. He tweets @irfanaminmalik.