As the Union territory of Jammu and Kashmir (J&K) went to its first district development council (DDC) polls on 28 November 2020, several politicians, bureaucrats, law and order officials, businessmen and other beneficiaries of the Roshni Act were wedged in what is generally seen as one of the egregious abuses of public lands in the country. It may seem paradoxical that J&K, which witnessed one of the pioneering radical land reforms in the country after independence (way back in 1950s), is now locked in an unsavoury land scam involving a large number of people who held high positions across a wider spectrum of politics, bureaucracy and business. Though there were widespread allegations of corruption and abuses of power since the promulgation of the Jammu and Kashmir State Lands (Vesting of Ownership to the Occupants) Act, 2001, Act No. XII of 2001—popularly known as ‘Roshni Act’ (Government of Jammu and Kashmir 2001), the successive governments in J&K continued to deride them. Meanwhile, the campaign unleashed by right-wing groups in Jammu in the last several months—that the land scam was actually a ‘land jihad’—turned out to be a hoax with the J&K administration’s publication of lists of illegal land encroachers. While the basic land question eluded the attention of wider public, the campaign underway tended to set in a communal dimension to the issues, particularly in the context of local body elections.
Plausibly, a turning point in the land scam came when the J&K High Court, in a public interest litigation (PIL), declared the Roshni Act “illegal, unconstitutional and unsustainable” and ordered a Central Bureau of Investigation (CBI) probe into the allotment of the land under this law. The High Court—comprising Chief Justice Gita Mittal and Justice Rajesh Bindal—in its order on 9 October 2020 stated:
“The instant case manifests the actual implementation of the age old adage that “charity begins at home”, not for the homeless, the landless, the labourer, the beggar, or those without any source of income, but practiced by the powerful, the high and mighty, the rich who committed trespass on huge tracts of public land (including forests), and have acquired proprietary rights over them, not because of need, but out of sheer greed, completely unconcerned about the resultant damage to the national and public interest.” (High Court of Jammu and Kashmir,2020: Prof. S.K. Bhattia vs State of Jammu and Kashmir and Others, PIL No. 19/2011: IA No.48/20148 & CM Nos. 4036, 4065 of 2020, pronounced on 09.10.2020)
The court said:
“…In fact, the implementation of this adage, as is manifested in the present case, tantamount to implementation of a “loot to own” policy. That these looters could motivate a legislation to facilitate their nefarious design, by itself speaks about their insidious and deep penetration into the corridors of power and authority; about the level and scale of their influence at all levels and suggests involvement of all those who mattered including in propounding and implementation of the policy.” (Ibid)
The High Court further pointed out that they had not “come across any such legislative state action legitimising criminal activity at the cost of national and public interest with incalculable loss and damage to the public exchequer and the environment, without financial (or other) impact assessment.” The Court’s attack on public authorities is even more revealing:
“What is even more shocking is that (despite two PILs), their pleas for justice to the people of Jammu and Kashmir have fallen completely on the deaf ears of the official respondents. The bureaucracy and Government officials are enjoying huge salaries and benefits for their acts of omission and commission each of which was 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.” (Ibid)
Following the judgement, the J&K administration in its order on 1 November cancelled all land transactions taken under the Roshni Act (under which 2.5 lakh acres of land was to be transferred to the existing occupants). The administration also entrusted the principal secretary and revenue department to put in place measures to retrieve large tracts of state land vested under the Act. The court identified that more than 6,00,000 kanals of the state land were regularised and transferred to the occupants. This included more than 5,70,000 kanals in Jammu and 33,392 kanals in the Kashmir province (one kanal is equivalent to 505.857 square metres or one-eighth of an acre).
It was the National Conference (NC) government led by Chief Minister Farooq Abdullah which brought in the Roshni Act in 2001 to regularise the unauthorised land (the NC was, at that time, part of the BJP-led NDA coalition at the Centre and Omar Abdullah was a minister in the NDA government). The NC government claimed that the Act would facilitate it to mobilise as much as Rs. 25,000 crore which would be used to augment power generation in the state (the label ‘Roshni’ implied electricity or light). The state government had fixed 1990 as the cut-off year for the Roshni scheme. But, in 2005, the PDP-Congress coalition government of Mufti Mohammad Sayeed extended the cut-off year to 2004 and this was again changed to 2007 by the Ghulam Nabi Azad government.
Meanwhile there were serious allegations of corruption in the land transfers. Investigation agencies recorded many instances of public land being allotted to ineligible beneficiaries. The State Vigilance Organisation (SVO) itself found that the government officials were also involved in the fraud transactions.
In 2014, a report by the Comptroller and Auditor General of India (C&AG) pointed out serious wrongdoings in the transfer of encroached land to its occupants. The C&AG report noted that the Roshni scheme could not meet its purpose—against the target of Rs 25,448 crores, the scheme had yielded only Rs 76 crores during 2007-2013. In 2015, the SVO charged more than 20 officials (which included three former deputy commissioners) for their abuse of the provisions of the Roshni Act. Since then, efforts were underway to put a halt to the illegal deals. In November 2018, the J&K High Court restrained beneficiaries of the scheme from proceeding with any transaction. Later, on 28 November 2018, the J&K Governor Satyapal Malik revoked the Roshni Act and ordered a probe into the scam. The J&K situation, however, turned more complex with the political uncertainty looming large in the state—which eventually led to the abolition of Article 370 and the reorganisation of the State into Union Territories in August 2019. Massive arrests and restrictions followed in the UT.
Meanwhile, Jammu Kashmir Law Commission in its report in March 2020 pointed to the reports of abuse of the Roshni Scheme. The Commission characterised the Act as a typical example of the fences swallowing the crop. These are covered in dust from top to toe. The state has gone against the grain in legislating the Act and in framing the rules. It further said that such legislation where a huge chunk of land comprising thousands of kanals in which the public, in general, had an interest has been conveniently allowed to be transferred to the trespassers and the encroachers by a blatant misuse of the public trust and power cannot find a place in any nook and corner of the Indian State. The Commission recommended immediate retrieval of land transferred in favour of illegal beneficiaries under the garb of this legislation as only the wealthy, the mighty and those wielding political clout got benefitted. The Report concluded: The policy of loot and scoot was adopted by the State throwing all the norms and the laws to the winds just to benefit the big-wings.
The High Court verdict of 9 October 2020 fully confirmed all apprehensions and allegations of massive corruption raised by different agencies. Following the court verdict, the CBI registered separate cases and took over the investigation of the matter, earlier registered by Vigilance Organization, Jammu (now Anti-Corruption Bureau, UT of J&K) vide FIR No. 23/2015, FIR No. 5/2015 and FIR No. 6/2014. Since then, the J&K administration started publishing list of beneficiaries under the Roshni Act on its website. The list disclosed the names of top echelons of J&K which included many politicians, bureaucrats and businessmen who were reported to have abused the provisions of Roshni Act and encroached upon the state land. What angered many was the list, which included former chief ministers, Farooq Abdullah and Omar Abdullah, for having built their residential house in Jammu over “illegally-possessed land,” a charge denied by them instantly. Farooq Abdullah came down heavily on the administration’s campaign and said that this was being done with “malicious intent.” He further denied that the headquarters of NC in both Srinagar and Jammu were “legalised under the controversial Roshni Act.” Among the list were many other top politicians, bureaucrats, businessmen and former superintendents of police. The administration also notified encroachments other than under the Roshni Act which emerged in the revenue records—they are mostly agricultural land in Jammu.
In the meantime, the lists brought out by the J&K administration demolished the myth of ‘land jihad.’ For instance, in the first list released by the administration, there were only 3 Muslims out of 541. In the second list, there were around three dozen Muslim names out of 1237. Reports indicated that the majority of the 1.58 lakh land scam cases involved the role of non-Muslims. The lawyer of Bhalla, who challenged the Roshni Act, admitted that of the 44,000 kanals encroached on in Jammu district, Muslims got only 1,180 kanals. He further said that “in Kathua district (of Jammu), 98 per cent of the 11,000 kanals have gone to non-Muslims”.
Fears of the marginalised communities
There is also a flipside side of the land scam. With the Roshni Act being repealed, there is a section of people in J&K who are much frightened. They are the poor who were inveigled by the privileged sections to purchase public land with the government support. These people—who were literally struggling to make ends meet—somehow secured a few marlas of land (one marla is equivalent to a little over 25 square metres). Today they are too distressed about the future of their land and, therefore, accused the NC government of resorting to deceit by making them the ultimate victims of this fraud. They knew that the wealthy and the privileged people have the necessary wherewithal to escape from the setbacks of land transactions. “Where do we poor people go?”, they ask.
Many lament that they were lured into the scheme, several years ago, by asking them to file an application and pay an amount as fee to possess land. Once the fees paid, the property would be regularised in the hands of the owner without even telling that this was the state land. With the possession of land, many constructed small houses with their sweat and labour, but now, after several years, the administration is set to evict them by demolishing houses. This is true of the conditions of Gujjar and Bakerwal people who are afraid of losing their land, particularly in the Jammu region.
Since the Roshni Act has been rescinded, many argue that the tribal population in J&K should not be penalised for their ignorance of rules and regulations. Way back in 1991, Gujjars, Bakerwals, Gaddis and Sippis of the State were bestowed Schedule Tribe status. Though these communities were entitled to 10% reservation in state jobs, all other benefits enjoyed by the Scheduled Tribes elsewhere in India were not in place in J&K. For instance, the Forest Rights Act of 2006 was inoperative in the state. The Act grants Scheduled Tribes dwelling in forests across the country the “right to hold and live in forest land.” But the Forest Rights Act was not extended to J&K. Now that the Jammu and Kashmir administration announced that it would implement the Forest Rights Act, 2006 in the UT, the tribal communities in J&K (who constitute nearly 12 per cent of the population) heave a sigh of relief even as many keep their fingers crossed. The administration was reported to have plans to complete by mid-January 2021, the process of identifying claimants by the forest rights panels for assessing the nature and extent of rights claimed at the village-level. Reports suggested that the tribes and traditional forest dwellers would be bestowed the rights over forest land for “the purpose of habitation or self-cultivation or livelihood, ownership, access to collect, use, and dispose of minor forest produce, and entitlement to seasonal resources among others.” However, according to official statements, the rights granted under this Act would be heritable but not transferable. Yet, the problem with some sections of the marginalised communities in J&K would be the actual fallout of reversing the Roshni Act.
Even as the land scam issue has taken a new turn with new lists of beneficiaries of illegal transactions being announced, the Union government notified the Union Territory of Jammu and Kashmir Reorganisation (Adaptation of Central Laws) Third Order 2020 (Government of India, Ministry of Home Affairs 2020). With the new regulation in place, no domicile or permanent resident certificate is mandatory to buy non-agricultural land in J&K. The Ministry of Home Affairs also notified the Real Estate (Regulation and Development) Act, 2016, facilitating the procurement of land in J&K by all Indian citizens. Earlier, under Article 35-A of J&K Constitution, there was prohibition on the sale of land to those who were not state subjects. The new order also authorizes the government to proclaim any area in the UT as strategic.
While such changes are seen as part of BJP’s long-proclaimed position on terminating the ‘special status,’ many eyebrows are raised with respect to the implications of the notification scrapping the Big Land Estate Abolition Act, 1950 – which, in fact, was instrumental in ending landlordism in J&K and had ensured radical redistribution of land. The laws repealed by the Union Government included the Jammu and Kashmir Alienation of Land Act, Jammu and Kashmir Big Landed Estates Abolition Act, Jammu and Kashmir Common Lands (Regulation) Act 1956, Jammu and Kashmir Consolidation of Holdings Act 1962, Jammu and Kashmir Right of Prior Purchase Act, and the Jammu and Kashmir Utilization of Lands Act. Many fear that a cumulative effect of all modifications of laws could be disastrous for the poor, local inhabitants. According to them, the long-term objective of the government might be to effect demographic changes in the UT, particularly in Jammu. Political parties in J&K also feel that the changes put in place would also undercut the federal character of the system. Spokespersons of the People’s Alliance for Gupkar Declaration—a platform of political parties committed to the restoration of Article 370—also argue that the Union Government’s interventions would only destroy the basic principles of Centre-State relations.
However, the land scam brought to light one of the fundamental causes of the alienation of the people of J&K, over the years—the land question. Notwithstanding a few accomplishments of the land reforms (of the 1950s), the successive governments in the state failed to address the basic problems of the people with an open mind. All major ruling dispensations in the past—from the Indian National Congress to National Conference and the People’s Democratic Party—tended to see the affairs of the state only from an exclusive power dimension which caused many hassles and pitfalls in the past. Now the burning question is if a new power circuit emerging from New Delhi can set right the mistakes of the erstwhile ‘Special Status’ era?