The Jammu and Kashmir government seems to have had a change of heart on the controversial Roshni Act. In October, it had announced it would start retrieving thousands of acres of land distributed under the Act, soon after the legislation was struck down by the court. But on December 4, the government filed a petition in the Jammu and Kashmir High Court, asking it to reconsider its decision.

“Roshni Act” is the popular name for the Jammu and Kashmir State Land (Vesting Ownership to the Occupants) Act. Passed in 2001, the law was supposed to grant ownership rights to the occupants of state land for a fee decided by the government. Proceeds from these transactions were to fund power projects in Jammu and Kashmir, hence the moniker, Roshni Act.

In October, the high court declared it “unconstitutional” and ordered a Central Bureau of Investigation probe on the “land scam” allegedly enabled by the Roshni Act.

The Union Territory government now wants the court to modify its order so that it can act only against “rich and wealthy land grabbers”. In the petition filed by an official of the revenue department, the government also appears less than supportive of the Central Bureau of Investigation inquiry.

Yet, when the judgment was first passed, Union ministers as well as senior Bharatiya Janata Party leaders had hailed it as a “surgical strike” on corruption. For weeks, the Union Territory administration had published lists of beneficiaries, many of whom belong to opposition parties currently contesting in the local government elections.

What prompted this change of heart?

Protecting the poor?

For years, transactions under the law have been plagued by allegations of corruption and challenged in court. According to popular opinion, land allocations under the act favoured political elites and powerful officials. However, allocations were also made to poor families who had occupied state land for years.

The government claims it wants to protect poor beneficiaries. In its review petition, the Jammu and Kashmir government wants the court to divide beneficiaries under the Roshni scheme into two classes of people – “landless cultivators and individuals residing in dwellings on small areas” and “rich and wealthy land grabbers”.

The primary criteria for such classification, the petition states, would be a ceiling to determine “a landless cultivator or a house-holder with at the most one dwelling house in personal use.” No relief would extend to beneficiaries who got land above these ceilings. The government proposes a mechanism to “enable this class” to “continue to remain in possession of land” subject to an “appropriate ceiling and on payment at an appropriate rate”.

It is not clear how many individuals fall under either category, or if the government sifted through the entire list of beneficiaries before proposing a land ceiling. There are an estimated 33,000 beneficiaries under the Roshni Act. So far only 6,598 names – 2458 in the Kashmir valley and 4,140 in Jammu – have been published.

“Let’s not get judgemental about the arguments of the government in the petition,” remarked Jammu-based advocate Shakeel Ahmad, who represented SK Bhalla, an academic from Jammu who had filed a petition against alleged land grab by powerful elites in the state.

Preventing a ‘roving inquiry’?

Another key demand in the government’s review petition is to avoid “an unintended roving inquiry by the CBI, which may go on endlessly without generating the results sought by the high court.” The government wants Central Bureau of Investigation to tailor its investigation in order to be “more result-oriented” and “focus on the influential and powerful people who defrauded the state.”

It wants the agency to refrain from a detailed investigation into thousands of government functionaries who implemented the act. “Any inquiry should best take on fraud or malafide or criminal intent,” the petition advises. “Any inquiry should focus only on encroachment of government land or obtaining government land through fraudulent means.”

The government, however, is keen for the agency to scrutinise the “design of legal and policy framework and changes” made to the Roshni Act. The Act was enacted in 2001 under a National Conference government. Subsequent changes were made under governments led by Kashmiri parties.

The review petition also asks that the cases registered by Jammu and Kashmir’s Anti-Corruption Bureau not be transferred to the Central Bureau of Investigation. So far, the Anti-Corruption Bureau has registered 17 First Information Reports on alleged illegalities under the Roshni Act. “Transfer of these cases, which are at an advanced stage, to the CBI will delay bringing the guilty to book,” the petition says.

But Ahmed recalled that the court had “repeatedly rapped the Anti-Corruption Bureau for failing to take action against the culprits”. “It just doesn’t make any sense why the government doesn’t want to transfer these cases to the CBI,” he said.

Yet the government wants the review petition to be heard speedily to avoid just such a probe. The high court had adjourned hearings on the matter till December 16. On December 8, the administration approached the court with a petition to have the hearings advanced.

“When this preponement application came up for hearing, the division, headed by Chief Justice Gita Mittal, put a specific query to additional advocate general Aseem Sawhney about its urgency,” said Ahmad, who attended the virtual hearing on December 8.

According to him, the government’s counsel accused the Central Bureau of Investigation of selectively probing only those cases that were being investigated by the Anti-Corruption Bureau. Sawhney reportedly claimed this was creating problems for officers of the Jammu and Kashmir administration.

The court has now listed the review petition for a hearing on December 11 and directed the Central Bureau of Investigation to file an action taken report, to be submitted in a sealed cover, by then.

So far, the Central investigating agency has registered four preliminary enquiries on the alleged connivance between officials of Jammu Development Authority and encroachers of state land. If the allegations appear to be serious after the preliminary inquiries, the agency will file FIRs.

Members of Kashmiri parties on August 4, 2019, the day before Jammu and Kashmir lost special status. Picture credit: PTI

Centre of a political storm

Apart from filing a review petition, the government has remained tight-lipped about why it has second thoughts on the Roshni Act. sent written queries to Shaleen Kabra, principal secretary of the revenue department, but is yet to receive a response.

Opposition parties, however, did not pull punches. On December 7, the National Conference took a dig at the government’s “U-turn”. “After realising that the major beneficiaries of the scheme were from BJP and RSS from Jammu, the BJP wants a silent backtrack on its vitriol on Roshni Scheme,” National Conference spokesperson Imran Nabi Dar said in a statement.

Dar claimed that the process of compiling data on Roshni beneficiaries had alarmed the BJP, which then put pressure on the government to file a review petition.

The repeal of the Roshni Act and the retrieval of land had been at the centre of a political storm in Jammu and Kashmir. The high court’s judgement in the Roshni Act in October had figured prominently in Bharatiya Janata Party’s election campaign for the ongoing local government elections. In a high-voltage campaign, the saffron party accused Kashmir’s regional mainstream leadership of encroaching on land, benefiting from “illegal land grabs”. So far, no BJP leader has been mentioned in the lists of beneficiaries.

RS Pathania, a BJP spokesperson in Jammu, said the party was yet to deliberate on the government’s move to file a review petition. “We have not seen the terms and contours of the government’s affidavit,” he claimed.

He did, however, back the decision to categorise beneficiaries according to economic status. “In my personal opinion, there should be a distinction between big fish and ordinary people who have benefited from the law,” he said. “The distinction should not be on the basis of religion, region or class.”

A former member of the legislative assembly from Ramnagar in Jammu, Pathania said ordinary people were within their rights to avail of the Roshni scheme. “Roshni was a law passed by a legislature and people have applied in pursuance of that law,” he said. “So by one stroke of the pen, all of them can’t be hounded as criminals.”

The Jammu factor

“The government’s decision to file a review petition is an acknowledgment of pressure from the beneficiaries in Jammu,” explained a political observer in Jammu who did not want to be identified.

For months now, rightwing groups in Jammu have been campaigning against alleged “land jihad” enabled by the Roshni Act. In this formulation, the law gave Muslim-majority Kashmir a means to launch a “demographic invasion” of Hindu-majority Jammu.

Official figures contradict this theory. A total of 6,04,602 kanals (75,575 acres) of state land was approved for regularisation under the Roshni Scheme in Jammu and Kashmir. Out of this, 5,71,210 kanals (71,401 acres ) was in the Jammu region. The actual transfer of ownership took place only in 3,48,200 (43,525 acres) kanals. While around 3,15,000 kanals (39,375 acres) of state land was transferred in Jammu region, approximately 33,000 kanals (4,125 acres) were transferred in Kashmir. Most of the land transferred in the Jammu region went to Hindu applicants, said Ahmed, who has viewed official records.

According to the political observer, evictions and demolitions to reclaim land transferred under the Roshni Act would not suit the BJP in Jammu. “Jammu is politically fertile ground for the BJP, it’s their core constituency,” he said. “If Mohammad Ramzan’s house in Jammu or Kashmir is demolished by the government, it’s not a problem for the BJP. But if Sohan Lal’s house is demolished, it’s a problem for them.”