Compromise #1?

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Ruling PDP accommodated miner lawmakers of its partner to block non-locals in mining sector. A day later, it faced an embarrassing situation when the same ally forced it to bury key land bill. Aimed at doing away with inherent constitutional discrimination with Kashmir, the bill would strengthen the system of preventing non-locals from taking over land in Jammu through the lease route. Masood Hussain details PDP’s reliving of 2004 moments when it faced the same situation on a key state subject law that J&K lost forever

Compromisehashtag1-Cover-PageHistory retains its exclusivity to repeating itself. In fact, circles never stop. They tend to replicate to have some sort of continuity in the larger political circles.

March 11, 2004 was perhaps the most watched sitting of J&K’s Legislative Council ever. In Jammu, the sitting lasted for six hours. It was a ticklish issue. Mufti Sayeed led PDP-Congress government had passed a bill legalizing loss of state subject status for women marrying non-locals. Aimed at improving the stringent state subject laws, predating partition, the bill was addressing a series of litigations – in around 25 years, of women married outside J&K seeking their inheritances.

J&K Permanent Resident (Disqualification) Bill 2004 piloted by the then Law Minister Muzaffar Hussain Beig on March 5, 2004, the last day of the budget session, was passed within six minutes of its introduction. Once passed, Congress had second thoughts. The issue was blown out of proportion by the TV and street protests by the elite women that Mrs Sonia Gandhi intervened. The party finally decided to block it in the Council.

Division was clear – NC and PDP wanted the bill to be voted. Congress and Panthers Party wanted it to go to the select committee. With six berths vacant, NC was the biggest player with 15 votes followed by eight votes of Congress and four with PDP. Panthers and Communists had one vote each. NC man Abdul Rashid Dar presided over.

No voting took place. Only fierce speeches were around. “Unless the doubts are cleared and points raised are answered, this bill cannot become law,” Chairman Abdul Rashid Dar ruled slightly short of midnight. “There is need for further debate on this issue and this will continue in the next session of the house. Till then the house is adjourned sine die.”

NC threw out Dar from party. The bill lapsed on June 11, 2004. When the Council resumed on August 18, 2004, NC moved a no-confidence motion against Dar that fell flat for the lack of two crucial votes – including the one of its own legislators who abstained. To address public perceptions, PDP unveiled the salient features of the new bill. Congress pulled the strings. It was never introduced.

New Laws

In the next Panchayat poll, the voters will not have to vote twice – once for Sarpanch and then for Panches. Under the amended law, the Sarpanch will no more be directly elected. Instead, it will be one of the Panches whom his colleagues will elect a Sarpanch, strictly the way cabinet elects its leader.

By the same amendment, the government intends to rationalize the block development councils and can bring multiple blocks under one council. This, the government says, has become inevitable in backdrop of the fact that blocks have disproportionate Panchayat’s under them.

Finally the government has brought in the law that governs the twin cluster universities in Jammu and Srinagar. Chief Minister will be the chancellor for the two universities that will admit 1580 post-graduate students. Comprising of five colleges each, these universities will start with five schools with 11 PG departments each. Central and state governments have already released Rs 46 crore and the twin universities will get Rs 110 crore for infrastructure development.  State’s government will have to contribute only 10 percent of it but the running costs will be totally a state government affair.

Being set up under Rashtriya Uchchattar Shiksha Abhiyan (RUSA), the twin universities are expected to reduce the burden on the existing universities.

The taxman is aware of the changes that the market is exhibiting. By one law, the government intends to make money (entry tax) from online sales. It has detected the system in online sales in which sellers convert major bills into smaller ones to stay undetected. Now all purchases through online will have to pay tax and indirectly will help the local retailer to offset the competition that virtual world had forced on him.

By another law, the government wants to revive the entertainment tax. In Kashmir, for instance, the cinemas have gone but not the entertainment. The government wants to levy tax on DTH, 5D and 7D video halls, cable TV, horse racing, and other internet driven and modern entertainment services in addition to multiplexes and talkies.

Interestingly, the government felt compelled to bring in a law to evict unauthorized occupants on the premises that government owns. This bill intends to do way with the intense litigations that occupants of public spaces force on the government. Now Deputy Commissioner will be the sole authority managing these issues.

The house passed the law with the amendment that the government will, however, publish notices in the newspapers before gong for the action. This law will cover all kinds of spaces including flats, quarters owned by the government, semi-government, PSUs and autonomous bodies.

The government has amended the law that governs the brick kilns across the state. The idea is to halt creation of kilns in the agriculture land. Kilns currently operating in agriculture land will have to be relocated within next two years, according to the amended law. No kiln will get a renewal unless it has a land use certificate from the revenue department.

June 30, 2016 witnessed the same story. The only difference were characters. The day started with Chief Minister Mehbooba Mufti taking oath of office as a formal member of the House after getting elected from Islamabad. Her allies in BJP thumped the tables.

By afternoon things changed when the House took up the introduction of bills. Ruckus was at full display when the J&K Land Laws (amendment) Bill 2016 was taken up. Distributed in the house a few days earlier, the issue started unfolding only after certain BJP lawmakers talked to media expressing their reservations.

The bill was aimed at amending J&K Transfer of Property Act and J&K Alienation of Land Act. The bill explained its importance in detail.

All the land laws in vogue in the state prohibit transfer of immoveable property to non-permanent residents. But to the utter shock of Kashmir, there was inherent discrimination.

“The restriction created under sub-section (3) of section 138 of the Transfer of Property Act, regarding taking possession of and transfer of the immovable property for commencing any construction activity is limited to “Kashmir Province” only,” the bill reads in the statement of its objects and reasons. “However, no such restriction has been imposed in the Act for the aforesaid purpose in respect of Jammu division, with the result the land is being transferred to the non-permanent residents of the state, through unrecognized modes: like power of attorney, agreement to sell etc.”

The statement mentions expressly: “The situation in Jammu division has reached at an alarming levels, which warrants rectification of the aberration in the principal legislation ie sub section (3) of section 138 of the Transfer of Property Act.”

Besides, in section 2 of Alienation of Land Act and section 5 of TPA, the words lease, sale, gift, bequest are not properly defined with the result the said modes are considered as “permanent / temporary alienation of immovable property”. The bill said that “varying interpretations” by the courts have facilitated “unlawful transfer” of immovable property.

Assembly00“This has been there throughout, in fact inherited from Maharaja era,” explained a top Law Ministry official. “These transfers avoid registrations which is a net loss to the state kitty.”

The bill was replica of a private member bill that NC lawmakers Ajay Kumar Sadhotra and Trilochan Wazir had brought in last PDP-Congress regime. “I was driven by the crisis that I was aware of,” Sadhotra said. “Non local realtors would have unofficial arrangements with some locals and they would set up housing colonies.” Sadhotra said that since the investment would come from only one party, usually these cases would land up in police stations. “I am aware of various arrests as these people would avoid registrations and that was the reason why we moved a bill to end this menace,” Sadhotra said.

In the last two decades, a number of investors have taken this route to set up housing colonies in Jammu. These include Ansals, Parsvnath Developers Limited, Kamdhenu Realtors and many others. “There is one tower from the top of which even the lights on International Border can be seen,” said an officer in the housing ministry. “Hundreds of crores have gone into housing sector but it is nowhere listed.”

The mere introduction saw the House changing for a moment. NC, Congress and all the independents were on their toes, so were the BJP members from the treasury benches. Chief Minister and her Deputy Dr Nirmal Singh were watching it from the Chief Minister’s Office in the assembly secretariat.

Binned Bills

Official businesses apart, various lawmakers had brought ‘private member bills’ but not a single one of them could become a law. R S Pathani (BJP) wanted to create Shri Chandi Mata Machail Shrine Board. His colleague Devinder Kumar Manyal wanted to create Shrines of Purmandal and Utterbahini Act to facilitate routine yatras. Pawan Gupta had brought in a bill to fill the vacant 24 berths of state assembly through Pak refugees, settled in Jammu. This has been a very old plan of the BJP.

NC’s Altaf Kaloo, Ishfaq Jabbar and Congress’s G M Saroori had brought separate bills to ban alcohol in the state. Kaloo had piloted a bill for sterilization of dogs.

Engineer Rasheed and Pawan Gupta, both independents, had separate piloted two bills aimed at doing away with the legislative council as has happened in most of the Indian states. “This House has almost become a place for providing for favourites and those who can not enter the legislative assembly through the process of direct elections,” Rasheed explained in his bill. Bihar, Maharashtra, Karnataka and UP are the only Indian states, in addition to J&K, to continue with the bicameral house set up.

Comrade Yousuf Tarigami and Engineer Rasheed brought separate bills to restore the status of elected Sadr-e-Reyast in place of governor.

Besides, Tarigami wanted two more constitutional amendments. By one, he wanted to get the word “secular” in the preamble of the state constitution. By another amendment, he wanted to have 100 sittings of the state legislature mandatory by law. He also wanted creation of an “ecological Fund” to manage the challenges on the environmental front in the state.

Interestingly, Bashir Ahmad Dar wanted the RTI related law amended “to curb the menace of using the RTI act as a tool to give flip to the corruption, which remains unabated at the hands of few RTI activists who are not entitled to any information sought to be obtained”.

Asgar Karbalie piloted a bill to include Purik – spoken in parts of Ladakh, in sixth schedule.

BJP’s Pathania, interestingly, wanted changes in the Panchayat act to enable election of “literate, clean and responsible” people as panchs and sarpanchs.

Entire opposition was seeking the introduction of the bill be put to vote and they would support it. PDP leader Syed Altaf Bukhari also supported the idea. Ruckus and debate continued for nearly an hour.

Omar Abdullah offered the real picture. He said the introduction of the bill after prior approval by the cabinet displayed the “inexperience”. Ali Mohammad Sagar said the “good piece of legislation” requires opposition support. Congress’s Nawang Rigzin Jora termed it “mere spectacle” insisting that the alliance approved the bill and now disagreed in house. “Now they are unwilling to take the support of the opposition which is coming without any conditions,” Jora said. “But the two parties want to take the bill to select committee, a process that usually happens on opposition demand.” An angry comrade Tarigami was perhaps the saner in explaining things. He said it was not against any region but only aimed at managing an ambiguity in the existing law that was being exploited.

PDP minister Abdul Rehman Veeri said the bill should trigger a debate regardless of what happens to it eventually. His colleagues Zulfiqar Choudhary said the intentions of the government were to trigger a debate though they had the option of making changes through an ordinance.

Interesting part was BJP’s R S Pathania speaking against the “sensitive” bill and repeatedly insisting that the ambiguity should stay. His intervention was vague and unimpressive. He repeatedly insisted that managing the piece of legislation through “in a hush -hush manner” – he forgot its prior approval by the cabinet, can trigger crisis within and outside courts.

Assembly-WalkoutFinally, the Revenue Minister Basharat Bukhari, who piloted the idea, said the bill was not aimed at creating pandemonium. Changes, he said, are a continuous process. Then he sought permission from the House to send it to the select committee – the most respected route for dignified burial to the bills. NC shouted slogans and walked out. Only Engineer Rasheed returned to say the House has become the cemetery of peoples’ aspirations. Within a few moments, Treasury benches were thumping tables – their salary was doubled to Rs 1.80 lakh. Their pensions jumped to Rs 50,000 plus Rs 10,000 of medical allowance.

Chief Minister was back to the House. She admitted her “inexperience” but justified the happenings without getting into the “battle of ideas” debate. Acknowledging BJP support in SRO 105 case (while admitting they had interests), she said they understood the importance of Article 370 but insisted that “we need to give them space” (a reference to their disagreement over the land bill).

Unlike PDP and NC that forgot to revive the bill that had lapsed in 2004, political parties opposed to that bill followed it up. Even after the bill’s failure to become the law, the tradition of stamping unmarried girls Permanent Resident Certificate (PRC) with “valid till marriage” was not given up by Revenue authorities. Prof Hari Om, then with BJP and now with Congress, challenged the practice through a Public Interest Litigation (PIL). A division Bench comprising Justices VK Jhanji and YP Nargotra in September 2004 issued notices to the state and later in July 2005 stayed the circular (Rev (LB) 87/74 of January 2005) enabling stamping on unmarried girl’s PRCs. Finally the government withdrew the circular and the practice came to a halt.

With this backdrop, the PDP led government actually made the situation precarious. With the amendments blocked, the right-wingers will follow it up. This “success” will unleash new phase of “investments” on leased lands in Jammu that is already surging with massive habitations of people from questionable backgrounds. The government has finally laid bare the Achilles Heel in Kashmir’s special status.

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