The centre has paved the way for the Indian Citizens to buy a land in Jammu & Kashmir by amending several laws, over a year after the nullification of Articles 370 and 35A of the Constitution.
The Centre has omitted the phrase "permanent resident of the state" from Section 17 of the Jammu & Kashmir Development Act that deals with disposal of the land in the union territory.
Before repeal of Article 370 and Article 35A in August last year, non-residents could not buy any immovable property in Jammu & Kashmir. However, fresh changes have paved the way for the non-residents to buy land in the union territory of Jammu& Kashmir.
The amendments did not allow transfer of agricultural lands to the non-agriculturists. However, there are several exemptions in the Act which enable transfer of agricultural land for non- agricultural purposes, including setting up of educational or health care facilities.
Opposition to the new move
The People's Alliance for Gupkar Declaration (PAGD), an amalgam of seven mainstream parties in Jammu and Kashmir, condemned the changes in the land laws and vowed to fight these on all fronts.
National Conference leader Omar Abdullah said the amendments were unacceptable.
Amended laws of Jammu& Kashmir
The notification has replaced Section 30 and Part VII of the State Land Acquisition Act of 1990 with the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.
The other major laws repealed by the notification includes the J&K Big Landed Estates (abolition) Act, a landmark act brought in by Sheikh Abdullah that gave land rights to landless tillers.
The JK Alienation of Land Act, 1995, the JK Common Lands (regulation) Act, 1956 and the JK Consolidation of Holdings Act, 1962 were also repealed.
Other laws to be repealed are:
- The J&K Prevention of Fragmentation of Agricultural Holdings Act, 1960;
- JK Prohibition on Conversion of Land and Alienation of Orchards Act, 1975;
- The JK Right of Prior Purchase ACT, 1936 A.D;
- Section 3 of the J&K Tenancy (Stay of Ejectment Proceedings) Act 1966;
- The JK Utilisation of Land Act, 2010;
- The J&K Underground Utilities (Acquisition of rights of user in land) Act.
The notification also maintains that government on the written request of an Army officer not below the rank of Corp Commander may declare an area as "strategic area" within a local area, only for direct operational and training requirements of armed forces, which may be excluded from the operation of this Act and rules and regulations made there under in the manner and to the extent.
Constitutional validity and reasonable restrictions on this move
The Constitution originally provided for the right to property under Articles 19 and 31. Article 19 guaranteed to all citizens the right to acquire, hold and dispose of property.
Article 31 provided that "no person shall be deprived of his property save by authority of law." It also provided that compensation would be paid to a person whose property has been taken for public purposes.
The provisions relating to the right to property were changed a number of times. The 44th Amendment of 1978 removed the right to property from the list of fundamental rights.
A new provision, Article 300-A, was added to the constitution, which provided that "no person shall be deprived of his property save by authority of law".
Under Article 19: All citizens shall have the right—
- to freedom of speech and expression;
- to assemble peaceably and without arms;
- to form associations or unions;
- to move freely throughout the territory of India;
- to reside and settle in any part of the territory of India;
- to practice any profession, or to carry on any occupation, trade or business.
Article 19(1)(d) and (e) of the Indian Constitution guarantees to every citizen of India right to move freely throughout the territory of India and to reside and settle in any Part of the of the Territory of India.
This right is subject to reasonable restrictions imposed by law in the interest of the general public or for the protection of the interests of any Scheduled Tribes.
1) Freedom of movement article 19(1)(d):
Article 19(1) (d) of The Indian Constitution guarantees to all Citizens of India the Right "to move freely throughout the territory of India."
This Right is, however subject to reasonable restrictions mentioned under Article 19(5). Clause (5) of Article 19 empowers the State to impose reasonable restrictions in the interest of general public or for the protection of the interest of any Scheduled Tribe.
Grounds of Restrictions:
According to clause (5) of Article 19 of Indian Constitution State may impose reasonable restrictions on the Freedom of movement on two grounds:
- In the Interest of General Public
- For the Protection of Scheduled Tribes
- Kharak Singh Vs. State of UP AIR 1963 SC 1295 - In this case, Supreme Court Held that the right to move freely throughout the territory of India means the right of locomotion which connotes the right to move wherever one likes, and however one likes.
- State of Uttar Pradesh Vs. Kaushalya AIR 1964 SC 416 - In this Case Supreme Court held that the right of movement of prostitutes may be restricted on ground of Public Health and in the interest of Public Morals.
2) Freedom of Resident Article 19(1)(e)
Article 19(1) (e) of the Indian Constitution guarantees to every citizen of India, the right "to reside and settle in any part of the territory of India". This right is subjected reasonable restrictions which may be imposed by the State, by law under clause (5) of Article 19, in the interest of the general public or for the protection of the interest of any Scheduled Tribe.
3) Article 19(1)(d) and Article 19(1)(e) are Complementary
It is to be noted that the right to reside [under Article 19(1) (e)] and right to move [under Article 19(1) (d)] freely throughout the Country are complementary and often go together. Most of the Cases considered under Article 19(1) (d) are relevant to Article 19(1) (e) also. The two rights, therefore, discussed together.
The Freedom of Movement and Residence apply only to citizens of India and not the Foreigners. A foreigner cannot claim the right to reside and settle in the country as guaranteed by Article 19(1) (e). The Government of India has The Power to expel foreigners from India.
Therefore it is evident that this amendment has been brought under the ambit of article 19 with
reasonable restrictions such as agricultural land will not be transferred to non-agriculturists.
However, there are certain conditions where they can be transferred for the developmental
purposes. This restriction will protect the interest of the natives of Jammu & Kashmir and also