Srinagar: With the abrogation of Jammu and Kashmir's special status and implementation of Jammu and Kashmir Reorganisation Act 2019, several existing state laws were repealed or amended. Also, a total of 106 central laws are being implemented in the newly formed Union Territory of Jammu and Kashmir in phases.
In August, last year, Home Minister Amit Shah had informed Lok Sabha that the Prevention of Corruption Act, National Commission for Minorities Act and Land Acquisition Act and other central laws will now be effective in the region.
Replying to Opposition MPs' arguments against the decision of the government to abrogate Article 370, Amit Shah had said, "Due to Article 370, key central laws which were made for the welfare of the citizens of the country couldn't be implemented in Jammu and Kashmir, this will now change."
"With Article 370 in place, the development of Jammu and Kashmir was hampered and democracy was stifled in the state because the people couldn't benefit from the central laws made for the citizens of the country," Shah had asserted.
He had further said that refugees from Pakistan in Jammu and Kashmir couldn't even become councillors as Article 370 did not allow democracy to grow and instead helped corruption to flourish and poverty to increase.
HOW CENTRAL LAWS WILL IMPACT J&K RESIDENTS
Earlier, the J&K government had an authority to pass its own laws on all matters except defence, external affairs and communications. This gave J&K more legislative power than any other state. This did not mean the erstwhile state had entirely separate laws from the rest of India – many Central laws either had an exact J&K version passed by the State Government or the relevant state law was essentially the same (the Ranbir Penal Code).
As a result, the end of Article 370 and the bifurcation of the state into Union Territories will have some genuine legal consequences for the people of Jammu and Kashmir.
The fifth schedule of the Jammu and Kashmir Reorganisation Act 2019, which gives effect to the bifurcation, specifies 106 Central Acts which are being implemented in the new Union Territories after the Bill came into force and also lists 153 State Acts which were repealed at the same time.
Seven State Acts, however, continue to operate in the new Union Territories (Jammu and Kashmir, and Ladakh) but in modified form.
Although J&K's Ranbir Penal Code (RPC) was very similar to the Indian Penal Code (IPC) in force across the rest of the country, with most provisions identical, there are some key differences between them, which are now no longer applicable to the erstwhile state.
J&K had its own Hindu Succession Act 1956, at the same time as the Central Act (part of a broader package of reforms to Hindu personal law). However, the 2005 amendment to the Central Act, which was a big development for Hindu women, was not applicable in J&K as a corresponding amendment to the State Act was never made. This amendment is now applicable in J&K and Ladakh as the Central Act is now in force.
This will have significant implications for Hindu women in the erstwhile State (especially in Jammu), as the 2005 amendment was a crucial step towards gender equality, ensuring women retain their rights in the ancestral property even after marriage, and they get the same rights in agricultural land (which had been excluded from earlier reforms) as men.
J&K’s law for juveniles (those aged 18 years and younger) corresponded to India's Juvenile Justice Act passed in 2000. However, a new law replaced this for the rest of India in 2015. The new Juvenile Justice (Care and Protection of Children) Act 2015 included several changes to the juvenile justice system in India.
The headline change, of course, was the new rule that where a 'heinous offence' was alleged to have been committed by a juvenile aged 16 years or older, they could be tried as an adult if the Juvenile Justice Board decided this was appropriate after an assessment of their mental and physical capacity.
The Transfer of Property Act 1882, applicable across the rest of the country, was technically applicable in J&K before the reorganisation, but it was subject to the state’s own laws on the transfer of immovable property, including those stemming from Article 35A.
J&K had its own Transfer of Property Act 1977, which will continue to remain in force in the new Union Territories. However, it is a diluted version of this Act that remains in force, thanks to the removal of Section 139, which protected any “Regulation, Hidayat, Resolution, Ailan, Rule or valid custom” in force in the region. This effectively restricted and regulated the transfer of immovable property (land, houses, etc) in J&K.
WHAT LEGAL EXPERTS HAVE TO SAY
Syed Riyaz Khawar, a Senior Advocate in Jammu and Kashmir High Court, feels that abrogation of Article 370 and implementation of Jammu and Kashmir Reorganisation Act 2019 has led to the laws without any constitutional guarantee.
"Following the August 5 decision of the central government, the biggest change which is visible right now is that there is no constitutional guarantee in the laws as was provided by the Article 35A of the Indian Constitution. Like domicile, the law is now implemented in Jammu and Kashmir but it doesn't have any constitutional guarantee.
The law can be challenged anytime in the court as it is against Article 14 of the Indian constitution. Earlier, we had state subject laws which guarantee that the jobs are reserved for residents, state subjects can contest elections etc while outsiders can't participate in any of the state subject activities," Khawar said, adding, "That's why it is important to have 35A like constitutional guarantee."
He further said that the abrogation of Article 370 was illegal and that is why the case is currently underway in the Supreme Court of India.
"Prior to the implementation of Jammu and Kashmir Reorganisation Act 2019, we had our own 415-420 laws. Now they have enforced 106-107 central laws in the Union Territory and along with it, they have amended our existing state laws. Amendments were made in Land Abolition Act, Land Rights Act, Agriculture Reforms Act, etc.
Permanent state subject was prominently mentioned in every law but now there is nothing much anywhere. Jammu and Kashmir acceded to the Republic of India on certain conditions and with the abrogation of Article 370 that bridge has been burnt, Khawar said.
"The Central government also appealed state commissions viz, Accountability Commission, Commission for Women, Human rights commission, Information Commission etc. Earlier, any resident of Jammu and Kashmir could file a complaint regarding a bureaucrat, politician or even Chief Minister in the state commissions now there is nothing of that type. There is no doorstep judgement, no inexpensive judgement, or effective judgement. This must not happen in a democratic setup. Instead of providing justice to the people, justice is being delayed and we all know justice delayed is justice denied."
Speaking of the similar lines, Advocate Shabir Ahmad Bhat asserts, "following the August 5 decision, Kashmiri people are suffering because of lack of commissions."
"The decision of the government changed everything in Jammu and Kashmir. They not only changed the system but also abolished the commissions because of which people are feeling helpless as they have no platform to present their case. Not only people but also the lawyers who were dealing with these commissions are left jobless," Bhat who practices in J&K High court and is an active member of Kashmir High Court Bar Association."
He further said, "Central Administrative Tribunal (CAT) was established for adjudication of disputes with respect to recruitment and conditions of service. In Kashmir division, due to the absence of the CAT bench how much employees and lawyers are suffering you won't imagine. Nobody is ready to listen to our grievances.
Earlier, the Jammu and Kashmir High Court used to handle service matters and over 70,000 cases were pending for disposal and following the abrogation of the Article 370 all these matters were transferred to CAT. Unfortunately, only one bench for the tribunal was set up and that too in Jammu. All cases from Kashmir are being ignored intentionally or unintentionally.
It takes around 10 days to file cases through virtual mode. Instead of making us do all the hard work and then put in a queue, they can simply tell us that don't approach the Court. Justice won't be granted and we too won't approach them. We need at least a bench here."
"Silence doesn't mean people have accepted Domicile law. There are no protests that are just because of restrictions imposed by the administration and COVID-19 lockdown. They are terming the enacting of Domicile law as dictatorship.
While they announced the removal of J&K special status, though, by the illegal process, they also promised that the statehood will be returned soon and till that time a temporary arrangement was made for governance of the region. But this temporary arrangement is taking all the important decisions while we still don't have any elected government.
This is not a democracy but dictatorship," he says while listing the misuse of power by the Jammu and Kashmir administration.
Terming the happenings in Jammu and Kashmir post-Abrogation of Article 370 as illegal, Advocate Shafaqat Nazir, "Agar aap illegality ko koi naam dena chahiye to woh yeh hai" (roughly translated as "If you wish to give any name to illegality, it is this").
"You shut down a commission and don't come up with any replacement. This is simply a human rights violation. You closed down all the forums, including consumer forms, but defined no new formula. Now people don't know where to go.
This is nothing, imagine...they have detained three former chief ministers of Jammu and Kashmir and also arrested hundreds of youth in old cases. The Public Safety Act was slapped on them. There is no justification for these things. Everything going here is illegal but the question arises who will declare that "this is illegal," he said while adding, "fresh PSAs are being slapped on the people associated with Jamaat e Islami, hurriyat workers and other youth. This is not a good sign."
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