Article 370 & ‘similar’ laws of Himachal, Nagaland, etc: Not comparable

Himachal Pradesh Tenancy and Land Reforms Act, 1972 is entirely different from the now-scrapped provisions in Article 370 and Article 35A

Art 370 & 'similar' laws of Himachal, Nagaland, etc: Not comparable

Shimla: Both the Congress and the BJP on Tuesday defended a Himachal Pradesh law that places restrictions on buying land in the State, saying there is no comparison with the provisions under Article 370 and Article 35A that stopped outsiders from owning property in Jammu and Kashmir.

The Centre on Monday revoked the special status enjoyed by Jammu and Kashmir over a range of subjects under the two Acts. But restrictions, mostly under Article 371, on buying land and property by outsiders in a few other States remain.

Himachal Pradesh minister Suresh Bhardwaj said those opposing the revocation of Jammu and Kashmir special status are spreading misinformation about the Himachal law. Section 118 of Himachal Pradesh Tenancy and Land Reforms Act, 1972 is entirely different from the now-scrapped provisions in Article 370 and Article 35A, he said. First of all, let me make it clear that this section applies to all non-agriculturists, whether they are Himachalis or non-Himachalis, Bhardwaj said.

Anybody can buy a flat in the State. But non-agriculturists, Himachalis or non-Himachalis, need the State government permission if they want to buy land for a business or for building a home, Bhardwaj said.

The section bars transfer of land to non-agriculturists without the permission of the State government. The Congress too defended Section 118. Himachal Congress president Kuldeep Singh Rathore said the law had been enacted to safeguard the interests of small farmers in the State. He said anyone can buy land for constructing a house or setting up a business after justifying it before the State government.

Rathore alleged that the State’s BJP government is trying to relax the section 118 norms to provide land to those industrialists who arranged funds for the party during the recent parliamentary elections. Rathore claimed that is why the State Congress has launched a Himachal Bachao campaign on Congress leader Yashwant Singh Parmar’s birth anniversary on 4 August. The Act was passed in 1972 during Parmar’s tenure.

Sub-Section 1 of Section 118 in Chapter XI of the Himachal Act says no transfer of land in any manner shall be valid if it is in favour of a person who is not an agriculturist. However, Sub-Section 2 (g) gives non-agriculturists the right to purchase a house, or land for building a house, from the Himachal Pradesh Housing and Urban Development Authority (HIMUDA) — if the State government gives them permission.

Suresh Bhardwaj, who is the State’s education minister, also said the law was enacted to save forests, tribal customs and the interests of small farmers and the poor. In Jammu and Kashmir women who had married outside the State were not allowed to buy land or flats in that State when Article 370 and Article 35A were applicable, but there is no such restriction in Himachal Pradesh, he added.

A number of non-Himachalis including Lt Gen (retired) Ranjit Singh Dayal, former Punjab DGP KPS Gill and Congress general secretary Priyanka Gandhi Vadra have built homes in the State after getting permission.

Why Article 370 and exclusivist laws of other States are incomparable

Article 370 for Jammu and Kashmir, which limited purchase and inheritance of property to permanent residents, is defunct now, but detractors of the government say its “clones” are very much alive and kicking in several States. Let’s study how truthful the claim is.

Article 371

Though it’s ruled by the BJP, non-residents are still not allowed to buy agriculture land in Himachal Pradesh. Article 371 is alive and kicking

Article 371A

This provision in the Constitution prohibits anyone who’s not a resident from buying land in Nagaland, which may only be bought by tribals who are residents of the State.

Article 371F

Sikkim, which was the last State to be merged into the Indian union in 1975, also has several Constitutional privileges — though some are being flouted either advertently or inadvertently. Article 371F bestowed on the State government the right of ownership of all land in the State, even if it was owned by private individuals prior to the State’s merger with India. Interestingly, the same Constitutional provision mandates a four-year term for the Sikkim State assembly — though assembly elections in the State have violated that clause as they have been held every 5 years. Moreover, Article 371F States that “neither the Supreme Court nor any other court shall have jurisdiction in respect of any dispute or other matter arising out of any treaty, agreement, engagement or other similar instrument relating to Sikkim”, albeit with a small caveat that allows the President to step in should there be such a need related to a constitutional law.

Article 371G

Similar to Article 371A, it limits the ownership of land to Mizoram’s tribals — except that for setting up industries by the private sector, land can now be acquired by the State government as per the provisions of Mizoram (Land Acquisition, Rehabilitation and Resettlement) Act, 2016. That apart, both Article 371A and Article 371G limit the Parliament’s authority to enact any law that interferes with tribal religious laws, customs, including their justice system.

Why they are not like Article 370

While the insurgency in Mizoram ended long ago, Nagaland is not burning either. Sikkim acceded to India years ago. The people of Himachal Pradesh were never separatists. Besides, there is no religious demographic divide of the nature of Kashmir in any of these States. Article 370, along with Article 35A, had effectively created a pro-Muslim, anti-Hindu, anti-Sikh, anti-Jain, anti-Buddhist, anti-Christian regime in the Valley, as neither domestic migrants not refugees from Pakistan were allowed to buy properties and settle there.

Besides, the clause dealing with marriage disowned women who married non-Kashmiri men. Thus, it was also ethno-racist. Human rights of ‘others’, like of movement, housing and employment, were violated in the name of upholding Article 370. Several Indian laws that protected the rights of the people in the rest of the country did not apply in the territory of Jammu and Kashmir. Indian democracy could not have continued to foster such a discriminatory regime.