Explainer: What exactly are the changes to land laws in Jammu and Kashmir?

On October 26, the ministry of home affairs introduced sweeping changes to land laws in Jammu and Kashmir. The Union Territory of Jammu and Kashmir Reorganisation (Adaptation of State Laws) Fifth Order, 2020, repealed 12 state laws, including historic land reforms laws, and amended 14 other laws, some of which deal with the sale and purchase of land in Jammu and Kashmir.

It officially ends the protections on land rights guaranteed under Article 35A, repealed on August 5 last year. The law was intended to protect the distinct identity and culture of the people of Jammu and Kashmir. It had empowered the government of the former state of Jammu and Kashmir to define “permanent residents” of the state and reserve certain rights for them. That included the right to own land in Jammu and Kashmir. People from outside the former state were barred from buying land there under the old regime. The term “permanent residents” has now been struck off all existing statutes.

The new changes apply only to the Union Territory of Jammu and Kashmir and not to Ladakh, which became a separate Union Territory after August 5. As part of the former state of Jammu and Kashmir, Ladakh had also been protected by Article 35A. Instead of stripping away protections here, the Centre has said it is open to discussing Sixth Schedule status for Ladakh.

Political leaders in Kashmir reacted strongly to the order. “J&K has been put up for sale and left bereft of any basic protections,” tweeted former Jammu and Kashmir chief minister and National Conference leader Omar Abdullah. “The amendments add to the fear of demographic changes. They want to alter the character of this place”. The People’s Alliance for Gupkar Declaration, a newly formed conglomeration of parties in Jammu and Kashmir, termed the notification as a “huge betrayal”.

A faction of the separatist All Parties Hurriyat Conference has also called for a strike on October 31 to protest against the “policy of permanent demographic change”.

Jammu and Kashmir Lieutenant Governor Manoj Sinha, however, claimed that agricultural lands were not up for sale to non-local buyers. The amendments were aimed at encouraging investment. “I want to say this forcefully and with full responsibility that agricultural land has been kept reserved for farmers; no outsider will come on those lands,” said Sinha on the sidelines of a press conference in Srinagar on October 27. The government only wanted to invite industries into the designated “industrial areas”.

Senior official in the Jammu and Kashmir law department, however, had a different take: “Except some states, there’s no prohibition in India on buying land anywhere. But in the case of Jammu and Kashmir, we had special protections in various laws that prevented non-J&K citizens from buying land here. Now since these protections have been done away with, it automatically means that anyone can buy land here like in the rest of the country.”

So how exactly does the home ministry order change the existing land regime in Jammu and Kashmir?

‘Doing away with protections’

Four major land laws in Jammu and Kashmir preserved land in the hands of permanent residents: the Jammu and Kashmir Alienation of Land Act, 1938, the Big Landed Estates Abolition Act, 1950, the Jammu and Kashmir Land Grants Act, 1960, and the Jammu and Kashmir Agrarian Reforms Act, 1976.

The first two laws have been abolished. In the other two, the “permanent resident” clause has been deleted from sections regulating the lease and transfer of land.

After eliminating protections, the home ministry pushes changes that would disrupt Jammu and Kashmir’s largely self-sufficient rural economy, laying it open to industrial and commercial forces from outside.

‘Development zones’

Many of these changes have been pushed through under The Jammu and Kashmir Development Act of 1970. One amendment ensures that “development zones” notified by the government will not be subject to any existing land laws that require permission to change land use. The development authority will regulate land use according to the needs of the zonal plan.

Earlier, the development authorities could acquire land under the former state’s Land Acquisition Act, 1990, which stipulated that no land could be allotted or leased out for residential purposes to anyone who was not a permanent resident. Land will now be acquired under the Central law, which has no such restrictions.

‘Industrial development corporation’

A new provision in the development act enables the creation of the Jammu and Kashmir Industrial Development Corporation. It is to help in “the rapid and orderly establishment, and organisation of industries in industrial areas and industrial estates” and setting up “commercial centres” related to these industries.

The corporation will manage industrial estates and develop industrial areas notified by the government. It may hand over these areas to developers or develop them itself. The aim is to prepare these areas for setting up industrial estates.

The corporation has the power to buy, sell or lease any property it wishes, and set the terms for such transactions. It will also have the power to lease out or sell buildings to industrialists and businessmen, and to construct housing for the employees of industrial and commercial establishments.

The government is also required to keep land at the disposal of the corporation and acquire land under the Central land acquisition law, should the corporation need it.

‘Strategic areas’

A crucial amendment in the development act enables the creation of enclaves for the armed forces, exempt from the provisions of the development act.

It empowers the government to designate “strategic areas” within lands controlled by the development authority. This is area reserved for “direct operational and training requirements of armed forces”. The change may be made on the written request of an officer not below the rank of a corp commander.

Low cost housing

Earlier, the development act made low cost housing available to economically weaker sections and low income groups who were also permanent residents of Jammu and Kashmir. The new amendments ensure that economically weaker sections and low income groups across the country may buy land or build houses in Jammu and Kashmir.

The amendment is significant because the Union Territory government recently announced a new housing policy under which it would build one lakh dwelling units over the next five years. It aims at “promoting public-private-partnerships for affordable housing and slum rehabilitation projects”. It also aims to fast track approvals for economically weaker sections and low income groups.

Section 17 of the original development act stipulated that if the government acquired land for development but had not done so, it could only sell it back to permanent residents. In the amended law, it can be sold to any Indian citizen.

Real estate laws

The home ministry also extended three Central laws to Jammu and Kashmir, including the Real Estate (Regulation and Development) Act, 2016. Under this law, a real estate regulatory authority manages the sale of plots, apartments and buildings “to protect the interests of consumers in the real estate sector.”

With a Central law in place, buyers and property developers no longer need to be permanent residents of Jammu and Kashmir.

Sale of agricultural land

While agricultural land is not for sale to people outside the state, the government has eased laws governing land transfers and restrictions on changing land use.

Significant amendments and insertions have been made to the Jammu and Kashmir Land Revenue Act, 1996. First, they overhaul the administration of agricultural land by the creation of a revenue board. The board is to prepare “regional plans”, taking into account the “developmental objectives of the government”, the requirement of land for “developmental purposes including residential”, the development of agriculture in the union territory and finally, “optimum utilisation of water and other resources.” It will be headed by the financial commissioner of the revenue department.

The revenue board, moreover, has no jurisdiction under “local areas” defined under the development act – these are usually areas earmarked for developing urban infrastructure. The act empowers the government to notify local areas, which are to be managed by development authorities.

The amended land revenue act prohibits the sale of agricultural land to a non-agriculturist – but there is a caveat. It authorises the government or an officer appointed by it to “grant permission to an agriculturist to alienate the land to a non-agriculturist by way of sale, gift, exchange or mortgage or for such agreement on such conditions as may be prescribed”. The non-agriculturist does not need a domicile certificate – showing he is a long-term local resident of Jammu and Kashmir – to buy the land.

Agricultural land may also be transferred by a person or government to “a landless person or a village artisan as per eligibility, residency conditions and procedure to be prescribed and notified by the Government”. The land may also be transferred for “public purpose” to “any Government”, company, corporation or board defined in the Companies Act of 2013.

The amendments also introduce a mechanism for the government to enable transfers of agricultural land for various non-agricultural purposes: in cases where it is being used by an “eligible” public charity; to promote education and healthcare; for industrial, commercial or housing purposes.

Earlier, the revenue minister of the Jammu and Kashmir government – an elected representative – had the power to approve the change of land use. Now, that power may be exercised by the district collector, a junior bureaucrat. The district collector also has the power to allow the utilisation of village commons, usually used as grazing land, for other “public purposes”.

Contract farming

Amendments to the Agrarian Reforms Act, 1976, also paves the way for contract farming. Earlier, people vested with ownership rights under this act could only transfer land to the government of Jammu and Kashmir. This has been broadened to the “Government, or its agencies and instrumentalities”.

Besides, the ownership of such land could only be transferred as a mortgage for loans. Now, it can be transferred for mortgages as well as contract farming and leases.

An assault on history

The home ministry order erases the history of land reforms that have shaped Jammu and Kashmir over the last seven decades. Initiated under Sheikh Abdullah’s National Conference government, animated by socialist principles of the “Naya Kashmir” manifesto, they had focused on redistributing land to the tiller and abolishing the feudal jagirdari system.

Scholar Michael Brecher, who visited Kashmir in 1951, called the abolition of jagirdari system “the most sweeping agrarian reform undertaken in the Indo-Pakistan subcontinent since the partition.” Observers attribute the social and economic upliftment of the people of Jammu and Kashmir to the radical land reforms and equitable distribution of land. “Thousands of peasants previously living in virtual slavery became landholders,” writes author Aijaz Ashraf Wani in his book, What Happened to Governance in Kashmir.

Under the Big Landed Estates Abolition Act of 1950, land ceiling was fixed at 22.75 acres. The excess land was confiscated from the owners and redistributed among those who tilled it. Under the Jammu and Kashmir Agrarian Reforms Act of 1976, land ceiling was reduced to 12.5 standard acres, with an exception made for orchards. Public rights to commons were established under the Jammu and Kashmir Common Lands (Regulation) Act, 1956. It also gave local landowners a say in how shamilat land, or village commons, would be used. The law was repealed by the recent home ministry order.

That’s why in Kashmir, the Centre’s notification is being viewed as a double assault – on history as well as on the future. “The repeal of the Big Estates Abolition Act – the first ever agrarian reform in the subcontinent – is an insult to the sacrifices of thousands of freedom fighters and farmers who fought against autocratic and oppressive rule and a crude attempt to rewrite history,” said Sajad Lone, spokesperson for the People’s Alliance for Gupkar Declaration.