Return of Natives And J&K Constitution

Z.G. MUHAMMAD

Sometimes even a single column news item on the back page contains far bigger a message than the screaming front page headlines and calls for a wider and serious debate. Some days back, a hundred and fifty word statement by an advocacy group welcoming initiatives of the government for return of Kashmiri Pandits talked about five major displacements that took place in Jammu and Kashmir after the birth of India and Pakistan as independent dominions. It has also called for ‘major initiatives for honourable return of all those displaced in 1947, 1965, 1971 and 1989.
Since 1990, only displacement in ‘dominant’ and ‘populist’ discourse has been that of the Kashmir Pandits. It has been categorized as ‘internal displacement’ as overwhelming majority of this community shifted to other parts of the state in ‘distressing and disturbing situation’. The displacement of Muslims of the state that dates back to 1819, is lost in the din 1990 disturbances. The most horrendous chapter to the exodus of Muslims was added in October 1947, by the last Maharaja. Victoria Schofield quoting Ian Stephens writes that within a period of eleven weeks entire Muslim element in the population amounting to five lakhs was practically eliminated and about two lakh disappeared. “Starving Muslims from Reasi, Ramban and Batote crossed high mountain peaks of Pir Panjal and arrived in Narwaw area of Shopian. Some of the refugees from Jammu arrived in Kashmir were kept in camps. After sometime, they were loaded on police trucks and sent across.” Many from the Valley were also forced to migrate.
The 1947, displacement by all stretch of imagination was biggest of all including 1965, 1971 and 1989- 1990. The 1965 and 1971, displacement took place during wars between India and Pakistan. Most of these displaced persons live on the other side of the LOC in refugee camps. Compared to other displacements, statutory provision were created by the State for facilitating return of the State Subjects that migrated to Pakistan in 1947 or crossed to the other side. The provisions included creation of the Custodian Department for safeguarding their property. And rules were framed for persevering their rights to their immobile property. In recognition of persevering the rights of people living across the LOC to return their homes seats have been kept vacant in the State Assembly. The Constitution of Jammu and Kashmir, adopted on 17 November 1956 also protects the rights of displaced citizens to return to their homes. The sub-sec-2 of section 6 part III reserves the rights of people who migrated even to Pakistan to return to their homes. It reads, “Any person who, before the fourteenth day of May 1954, was a State Subject of class I or of Class II and who having migrated after the first day of March 1947, to the territory now included in Pakistan, returns to the State under a permit for resettlement in the State or for permanent return issued by or under the authority of any law made by the State Legislature shall on such return be permanent resident of the State.” In 1982, when ‘a legal luminary’ drew attention of Sheikh Abdullah towards this provision and informed him that ‘the State Legislature’ was fully competent to enact a law that would provide legal framework for return of all the State Subjects who migrated in 1947, even to Pakistan- he was ‘excited’.
In March 1982, the National Conference introduced the J&K Resettlement Bill in the Assembly as a private member’s Bill. The Assembly passed the bill in April 1982. The then Governor B.K. Nehru after consulting Attorney General of India returned the bill without his assent for reconsideration. The Bill was reconsidered by the assembly and after a heated debate, re-passed on 4 October 1982, in its original form and left with no option Governor gave his assent and it became a law. Given to constraints of wordage, it may not be possible to talk about the whole of communal debate that tormented political scene in early eighties. The then President of India Zail Singh had place the Bill before the Constitutional Bench of the Apex Court seeking advice. Nineteen years later, in 2002 the Supreme Court returned the bill with observations, : “Having regard to the fact that that the Bill became an Act as far back as in 1982, it appears to us inexpedient to answer the question in affirmative, we would be unable to strike down the Act in this proceeding.” Impliedly, the Supreme Court upheld the Act. Nevertheless, the operation of act was stayed after the Panthers party challenged it. The matter came before the Supreme Court in early months of 2014 once again. In the context of debate over settlement of displaced people the question that haunts public mind has been if the National Conference or the PDP two important regional parties approach the Supreme Court for vacating the stay for facilitating the resettlement of the State Subjects who want to reunite with their families and settle in the state permanently?
The question of those living on LOC, who during 1990 turmoil crossed over LOC is as good a human tragedy as any other displacement and return of these to their home should be in fact be part of future dialogue between India and Pakistan. Seeing the ‘internal displacement’ of Kashmiri Pandits as a grave human rights problem and a tragedy there has been hardly any individual or leader across the political divide in the state who has ever opposed their return to their homes and hearths. On the societal level, those who returned to their native places were warmly hugged by their neighbours and have been living happily in pluralistic atmosphere. Consigning the debate over how and why this displacement took places to the pages of history and without looking for political gains their return to their pluralistic neighbourhood can be hassle free and as hassle free as it was during the period of Badshah. Thinking of creating separate settlements for them would be like injecting a cancerous cells in the body politics of the state. Instead, of rushing through schemes like creating separate township for them, the government should take the debate to public dominion and see how to strengthen the pluralistic fiber of the state.
(Published in Greater Kashmir on 23-6-14).