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The repeal of Art 35A on August 5 has scrapped special land rights granted to the residents of Jammu & #Kashmir. Here’s a thread on some other legal provisions to protect ‘original’ citizens’ rights over land in the rest of India and how these provisions are under attack. 1/17
Article 35A, a by-product of Article 370 that gave special status to Jammu and Kashmir, stated that permanent residents of the state would be conferred with special rights over the acquisition of immovable property in the state. 2/17
On August 5, 2019, Article 35A of the Constitution was abrogated on the grounds of it being “discriminatory against non-permanent residents of Jammu and Kashmir” and to “enable economic development” in the area. Now, non-residents have access to land and property in J&K. 3/17
Art 35A was introduced in 1952, five years after Jammu and Kashmir decided to join the Union of India in exchange for military aid. Over the years, government officials allegedly tried to modify the Article by borrowing from land laws in Himachal Pradesh and Uttarakhand. 4/17
Both Himachal Pradesh and Uttarakhand have land reform laws in place that restrict outsiders from acquiring land in the state. This is aimed at preventing exploitation of agricultural land and protecting the interests of local inhabitants. 5/17
But the High Courts of Uttarakhand and Himachal Pradesh have ordered the respective states to amend their land reforms to ease restrictions on the acquisition of land. 6/17
While the Himachal Pradesh High Court ordered the state to allow the purchase of land by non-agriculturists within the state, the Uttarakhand High Court ordered the state to increase the cap on land acquisition for outsiders. This was stayed by the Supreme Court in 2011. 7/17
The Constitution has provisions for other states too to restrict land acquisition by outsiders. Several provisions under Article 371 grant special rights to 10 states, including six from the Northeast, to protect the identity and rights of the indigenous people. 8/17
For example, Article 371G states that no Central Act related to the ownership or transfer of land will apply to the state of Mizoram unless the Legislative Assembly of the state approves it. 9/17
Article 371A, which is applicable in Nagaland, mentions that the state has special rights over both the land and its resources. This means that the approval of the Legislative Assembly is required to access land and any minerals and oil found in it. 10/17
Some areas have been categorised as Schedule 5 & Schedule 6 areas across the country where several reforms have been introduced to protect the rights of indigenous people. The laws were introduced to prevent exploitation of the marginalised tribal population by non-tribals. 11/17
Schedule 5 areas fall in 10 states of the country where acquisition and transfer of land is restricted. Each state has introduced land reform laws to grant special rights to those who have lived in these areas for decades. 12/17
For example, the Chotanagpur Tenancy Act was introduced in Jharkhand in 1908 and restricts the transfer of land belonging to Scheduled Tribes/Castes. The state government has tried to bring in various amendments over the years to remove this restriction. 13/17
In 2016, the Jharkhand government amended the Act to permit the acquisition of tribal-owned land for ‘development’. The amendment was later revoked after widespread protests. 14/17
In 1996, the Centre introduced the PESA Act to empower gram sabhas in Schedule 5 areas. The Act states that no land can be alienated without the consent of the gram sabha. Most states have delayed framing rules under the law to ensure the provision is not implemented. 15/17
Other states that do not have Schedule 5 and Schedule 6 areas also enacted land reform laws, such as the Punjab Land Alienation Act, 1916, and the Rajasthan Land Revenue Act, 1956, to protect the lands of tribals, but they mostly remain on paper. 16/17
In May 2013, Goa had requested to be granted special status under Article 371 to protect the rights of its original inhabitants over land and its resources. This was, however, considered ‘unfeasible’ by the Centre. 17/17
