On October 31, the Jammu and Kashmir government declared the State Land (Vesting Ownership to the Occupants) Act, 2001, null and void. The law, which had proposed to transfer ownership of state land to its occupants for a fee determined by the government, was popularly known as the Roshni Act, as the proceeds from these transactions were to fund power projects in Jammu and Kashmir.

Transactions under the Roshni Act had already been halted in 2018, as Jammu and Kashmir went under governor’s rule. Then Governor Satya Pal Malik had pronounced the law “no longer relevant”. And that was before the state was stripped of special status under Article 370 and split into two Union Territories.

On October 9, the Jammu and Kashmir High Court pronounced the Roshni Act “completely unconstitutional, contrary to law and unsustainable” and ordered a Central Bureau of Investigation probe on the “land scam” enabled by the law.

Passed by the government of the former state of Jammu and Kashmir, it has long been plagued by allegations of corruption. According to popular opinion, land allocations by the government had favoured influential bureaucrats, politicians and police officers. It was also absorbed into an increasingly communalised rhetoric by rightwing groups such as IkkJutt Jammu, which alleged the law was a means to wage “land jihad” and change the demography of Hindu-majority areas.

According to official figures, around over 30,000 beneficiaries got ownership of state land under the Roshni Act. Despite the popular discourse around it, thousands of poor families did benefit from it.

“Many big names are doing rounds as they talk of irregularities under the Roshni Act but the reality is that they are only a small chunk,” said advocate Sheikh Shakeel Ahmed.

“Let’s say there has been corruption and fraud in 1,000-5,000 cases but it hasn’t happened in all 30,000 cases. There are landless and poor people who got ownership under this act. Most of the people under the act are genuine beneficiaries. The problem is that those small beneficiaries are so suppressed and underprivileged that they are even afraid to talk about it.”

Ahmed said he had been getting panic calls from many of these small beneficiaries ever since the high court judgment. “These people have got very small land holdings and many have constructed houses on them,” he explained. “They ask me, what will happen now?”

A law for the landless

When the National Conference-led government passed the Roshni Act in 2001, it estimated that 20,64,972 kanal, or 1,04,458 hectares, of state land, worth around Rs 25,448 crore, was under unauthorised occupation. The law was modified under successive state governments, drawing more allegations that the tweaks were made to suit those in power.

In May 2007, for instance, the People’s Democratic Party and Congress coalition government notified rules under the act. These relaxed the eligibility criteria for land transfers. When the act was first passed, only those who had occupied state lands from before or in 1990 were eligible for ownership rights. This was now moved forward to 2007. Moreover, agricultural land could be transferred to its occupants free of cost.

According to official figures, out of the total 3,48,200 kanals (17,614 hectares) of land regularised under the Roshni Act between 2001 and 2007, 3,40,100 kanals (17,204 hectares) were transferred free of cost as agricultural land.

In 2014, a report by the Comptroller and Auditor General of India noted that the scheme had failed to meet its objective: raise funds for power projects in the state. Though it had a target of Rs 25,448 crore, the government had generated only Rs 76 crore through the programme between 2007 and 2013.

A Kashmiri man in a paddy field. Credit: Danish Ismail/Reuters

To the courts

For close to a decade now, the law has faced multiple legal challenges.

In August 2011, SK Bhalla, an academic in Jammu, filed a public interest litigation in the high court alleging land grab by “police officers, politicians and bureaucrats occupying responsible positions in the erstwhile J&K State in connivance with land mafia.” He asked for a special investigation team to probe the matter and ensure criminal or disciplinary action against those guilty.

“The petition was for the retrieval of state land encroached upon by bureaucrats, politicians and police officers,” said Ahmed, who had been Bhalla’s counsel. It did not target beneficiaries under the Roshni Act specifically.

In March 2014, Ankur Sharma, then a law student from Jammu’s Kathua district, approached the court with a civil miscellaneous petition demanding a Central Bureau of Investigation probe on the encroachment of state land in general. After the comptroller and auditor general’s report became public later that year, he approached the high court with a public interest litigation specifically against the Roshni Act and rules. It demanded that they be declared “unconstitutional/illegal being ultra-vires the Constitution of State of Jammu and Kashmir.” It also called for the nullification of transfers under the act and the retrieval of land transferred.

Sharma, now a lawyer, represented his petition in court before it delivered its October 9 judgment. “Six months before the judgement, the high court clubbed all the petitions together,” he explained.

‘Demographic invasion’

Sharma also objected to the Roshni Act because Muslim occupants got ownership rights in Hindu-majority Jammu division.

“Ninety percent of the forests in and around Jammu have been encroached on by members of a particular community with state acquiescence and connivance – Roshni was only one of the many tools for demographic change in Jammu,” said Sharma, who also leads IkkJutt Jammu. The group was formed in 2018 to defend the men accused of raping and murdering an eight-year-old Muslim Bakarwal girl in Kathua district, a case that had turned into a communal flashpoint in Jammu and Kashmir. IkkJutt Jammu, which then spread its agenda to the protection of Jammu from “demographic invasion” and “pan-Islamist forces”, may soon enter electoral politics

Sharma claimed his assessment was based on findings by a committee of “demographic scientists”, psephologists and statisticians appointed by IkkJutt Jammu. “Muslims who were not living in Hindu dominated areas some five-ten years back have started living in these areas,” he said. “We are not against a Muslim who came to Jammu for his education and better career prospects on his own. But if the state’s policy – be it the National Conference, the Peoples Democratic Party or the Congress – is to Islamise Jammu, so that their political clout grows and they find support for their separatism, by unscientifically changing Jammu’s demography, we have a right to oppose it.”

Muslim applicants were favoured when it came to allotments under the Roshni Act, he claimed. “For example, if 10 Muslim encroachers submitted applications under the Roshni Act, eight or nine were given ownership,” he said. “But in the case of Hindus, only two or three out of 10 applications were entertained.”

According to Ahmed, official records of state land regularised under the Roshni Act in Jammu, most of it went to Hindu applicants. “Out of the total 44,915 kanals [2,272 hectares] of state land regularised in Jammu, only 1,180 kanals [60 hectares] have been regularised in favour of Muslim beneficiaries,” he said. “In Hindu majority districts like Kathua, the maximum beneficiaries are non-Muslims. Most of the people who are going to be deprived of land covered by Roshni in Jammu are going to be non-Muslims.”

According to him, the high court judgment was being used to create a communal divide in Jammu. “Not even once did the judgement use the word ‘Hindu encroacher’ or ‘Muslim encroacher’,” he protested. “An encroacher is an encroacher no matter what his religious identity.”

But groups like IkkJutt Jammu insist they want to emancipate Hindu-majority Jammu from Kashmir. While a conglomeration of Kashmir-based parties called for the restoration of statehood and special status for Jammu and Kashmir, IkkJutt Jammu wants separate statehood for Jammu.

“And Kashmir should be divided into two Union Territories,” said Sharma. “One for Kashmiris and another for persecuted Kashmiri Hindus who were forced out of the Valley in the 1990s. They should be kept in a protected domain.”

A Kashmiri farmer and boy sit in a rice field on the outskirts of Srinagar. Credit: Tauseef Mustafa/ AFP

‘Shrinking earth for Gujjars’

The communalised rhetoric around land rights has heightened insecurities among Muslims in Jammu. This is especially true of the largely Muslim nomadic Gujjar and Bakarwal communities, who have historically been poor and landless.

“There is an atmosphere of fear,” said a Muslim activist in Jammu who did not want to be named. “All we hear is Muslims did this or that and there’s no one from the government taking any action against this narrative.” Since the Bharatiya Janata Party swept assembly seats in Jammu in 2014, nomadic communities have faced violent evictions and attacks for alleged cattle smuggling. After Jammu and Kashmir became a Union Territory, he claimed, it had emboldened the anti-Muslim rhetoric.

“Muslims actually fear that this propaganda might lead to further violence against them in Jammu,” he said. “Why is everyone talking about Muslim encroachers? Aren’t there encroachers from other communities? If Muslim colonies have cropped up in Jammu [district] over the past few decades, so have communities of non-Muslims who came to Jammu [district] from far flung districts like Rajouri, Poonch and Doda. Why isn’t anyone equating that with demographic change?”

While the Roshni Act has been extinguished, the Forest Rights Act of 2006, which could have offered some security to nomadic communities, is yet to be implemented in Jammu and Kashmir. The law recognises land and livelihood rights for Scheduled Tribes living in forest areas, which would cover the Gujjar and Bakarwal communities. After Jammu and Kashmir lost special status and statehood, it was stripped of most state laws and over a hundred Central laws were made applicable to it, but the Forest Rights Act was not one of them. This despite the fact that the BJP had pitched the removal of special status as a necessary step to improving the lot of Scheduled Tribes and Scheduled Castes in Jammu and Kashmir.

Ahmed said nomadic communities in Jammu have been evicted from areas that they have traditionally occupied. “Nomads have to live near ponds and river bodies in order to feed their livestock and they have been doing it since time immemorial,” he explained. “Now, different departments are asking them to vacate these areas as they are being called encroachers. In Jammu, the earth is shrinking for Gujjars and Bakarwals.”

New protections?

According to Sharma, those who have been tilling state lands for decades do not need the Roshni Act to get ownership rights. “Most genuine cases are those farmers who have been tilling that land for six-seven decades,” he said. “The Roshni judgement will have no effect on their rights. Those farming on state land for six-seven decades are entitled to ownership under the Section 3 (n), 4, 5 and 8 of Jammu and Kashmir Agrarian Reforms Act, 1976, but did not get it.”

But there’s a catch. According to Sharma, the provisions only applied to those who had giradwari (harvest inspection) entries before or in 1971. “The net result will be that anyone who has occupied the state land since 1990 will have to give it up,” he said. “Only original/aboriginal farmers will get saved, those families that were tilling state lands since the 1950s, 60s and 70s.”

Sharma said he had already approached the court to argue for such farmers in Kathua district. “I got an order on November 5 to maintain status quo on the lands of these farmers,” explained Sharma.

The Agrarian Reforms Act was one of the historic land laws amended by a Union home ministry order issued on October 26. The order also repealed other laws which granted ownership rights to the tillers of the land and established public rights to commons: the Jammu and Kashmir Alienation of Land Act, the Jammu and Kashmir Big Landed Estates Abolition Act and the Jammu and Kashmir Common Lands (Regulation) Act 1956.

Significantly, under the same order, the Jammu and Kashmir Land Revenue Act of 1939 was amended to include a new section. This allows the government to make rules to regularise occupation of land that would become illegal once the old land laws were repealed. Regularisation could be permitted if the occupants paid the government a fee “not less than the fifty percent of the circle rate notified by the Government for such type of land in the particular area”. The deadline for these transactions is December 31, 2021.

However, Ahmed feels the government should come up with a policy to confer ownership rights to the small beneficiaries under the Roshni Act. “The government is a welfare state and it should think about the homeless and landless,” said Ahmed. “It can come with ordinances and legislations. I don’t think it’s an impossible thing.”