Operation of J&K’s Erstwhile Laws Post Article 370

When Article 370 of the Indian constitution was read down in the summer of 2019, several laws of the erstwhile state of J&K were under operation and implementation. Investigations and legal proceedings were going on under various statutes of the erstwhile J&K legal system.

But after the Jammu and Kashmir Reorganisation Bill, 2019 was introduced by the Minister of Home Affairs, Amit Shah, in Rajya Sabha on August 5, 2019, many laws of the erstwhile state of Jammu and Kashmir became redundant overnight. The introduction of the bill was preceded by a presidential order which indirectly amended Article 370 of the Indian constitution and revoked Jammu and Kashmir's special status.

The act divided the state into two union territories - Jammu and Kashmir, and Ladakh. While the former will have a legislative assembly, Ladakh will be administered by a lieutenant governor alone. Out of the six Lok Sabha seats allocated to the former state, one was allocated to Ladakh and five to the Jammu and Kashmir union territory. The High Court of Jammu and Kashmir functions as the High Court for both the union territories. The act provides that the administration of the Jammu and Kashmir will be as per Article 239A of the Indian constitution, originally formulated for the union territory of Puducherry.

The act has also given powers to the central government to pass a number of executive orders in relation to both the union territories. These orders have resulted in the modification or repeal of over 400 state and central laws with respect to the union territories. The act comprises 103 clauses which extend 106 central laws, including the Aadhaar Act, 2016, the Indian Penal Code, 1860, and the Right to Education Act, 2009, in J&K. Further, it repealed 153 state laws of Jammu and Kashmir. In addition, seven laws were made applicable with amendments. These amendments include lifting of prohibitions on lease of land to persons who are not permanent residents of Jammu and Kashmir. The act has been challenged in court through a number of petitions

But have all those pre-August 2019 legal proceedings been declared null and void after dozens of central laws were extended to Jammu & Kashmir under the J&K Re-organisation Act 2019 order 1st or subsequent orders? No, not at all.

Most of the erstwhile J&K state laws which have been repealed and replaced by central laws will continue to be in force until the proceedings taken under those laws are completed even if these laws stand repealed and replaced by central laws.

Similarly, many state laws of J&K were given legal protection. Under the J&K Reorganisation Act 2019 order 1st as many as 166 J&K laws were protected. Some of them were later repealed as well, under different orders passed by the MHA but still there are approximately 130 laws which continue to be in force.

Removal of Difficulties Order 

Along with the J&K Reorganisation Act 2019, the MHA came up with orders called Jammu and Kashmir Reorganisation (Removal of Difficulties) Orders, 2019, 2020 and 2021.The Article 214 of the Constitution of India provides that there shall be a High Court for each State. The High Court of Jammu and Kashmir was established on the basis of the Jammu and Kashmir Government order Number 1 issued on the 26th March, 1928 when Maharaja Hari Singh ruled Jammu & Kashmir.  The Part IV of the Jammu and Kashmir Constitution Act, 1939 dealt with the judiciary in the State. The High Court was established under clause (a) of section 48 of the said Act in 1928, and continued to be the High Court for the State. The sub-section (1) of section 93 of the Constitution of Jammu and Kashmir, 1956, declared that there shall be a High Court for the State of Jammu and Kashmir and that the High Court exercising jurisdiction in relation to the State immediately before commencement of the Constitution shall be the High Court for the State.

The Jammu and Kashmir Reorganisation Act, 2019 ( Act no 34 of 2019) was enacted to provide for reorganisation of the existing State of Jammu and Kashmir into the Union Territory of Jammu and Kashmir and the Union Territory of Ladakh. The clause (a) of sub-section (1) of section 75 of the Jammu and Kashmir Reorganisation Act, 2019 declared that the High Court of Jammu and Kashmir shall be the Common High Court for the Union Territory of Jammu and Kashmir and Union Territory of Ladakh.

Section 13 and 14 of the order 

The clause 13 of Jammu and Kashmir Reorganisation (Removal of Difficulties) Order, 2019 says that Acts repealed under J&K Reorganisation Act 2019 (post 370) shall not affect the previous operation of any law so repealed or anything duly done or suffered thereunder or any right, privilege, obligation or liability acquired, accrued or incurred under any law so repealed or any penalty, forfeiture or punishment incurred in respect of any offence committed against any law so repealed or any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if this Act had not been passed.

The clause 14 of J&K Reorganisation (Removal of Difficulties)  order 2019 also has similar provisions. It reads as :

 “Anything done or any action taken including any appointment or delegation made, notification, instruction or direction issued, form, bye-law or Scheme framed, certificate obtained, permit or licence granted or registration effected or agreement executed under any law shall be deemed to have been done or taken under the corresponding provisions of the Central laws now extended and applicable to the Union Territory of Jammu and Kashmir and the Union Territory of Ladakh and shall continue to be in force accordingly, unless and until superseded by anything done or any action taken under the Central laws now extended” 

Misinterpretation of the order 

Some Govt officers misinterpret both these clauses. Some months back, the collector land acquisition for Srinagar Ring Road district Budgam, in his response filed before the High Court of J&K supported by an affidavit in the matter of Abdul Salam Bhat & others vs UT of J&K said that Ring Road affected people from village Wathora Budgam cannot demand compensation under Right to Fair Compensation & Transparency in Land Acquisition Rehabilitation and Resettlement Act 2013- (Central law) as the same is negated in terms of clarification envisaged in clause 13 and 14. He believes that land acquisition proceeding in Wathora was started under J&K Land Acquisition Act 1934 samvat 1990 and has to be concluded under the same act.

This is misleading. The officer has not mentioned the official communication No: DCB/LAS/20/300-10 dated 18.05.2020 wherein his boss i.e the Deputy Commissioner, Budgam suggests Divisional Commissioner, Kashmir for issuance of a fresh notification under the central law (Right to Fair compensation act) as the declaration issued under section 6 of erstwhile J&K Land Acquisition Act 1934 (samvat 1990) has elapsed due to efflux of time as per section 11-B of the repealed act. The said letter contains a comprehensive village-wise status report about the acquisition of land for the construction of the Srinagar Ring Road.

The DC Budgam clearly discloses in his communication that in several villages like Gudsathoo,Ichgam,Ganjibagh, Dharmuna , Khanda including Wathora at serial no 19, the approval of the award has not been received from the competent authority within stipulated time of 2 years . He also admits that the land acquisition proceedings for these villages have lapsed under the provisions of section 11-B of the J&K Land Acquisition Act 1934 samvat 1990.

Prominently, the declaration under the repealed J&K Land Acquisition Act 1934 samvat 1990 was issued on August 8th 2017 and the awards were to be finalized within 2 years ( i.e. by or before August 7th 2019). The Collector and the Govt both failed to do so. The Deputy Commissioner, Budgam in his official communication mentioned above sought instructions from the Divisional Commissioner Kashmir to initiate fresh proceedings under the Central Land Acquisition Act in the following terms:

“Guide if the land acquisition matters of villages detailed at (a) of the communication are to be initiated afresh as per the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act 2013.”

 Instead of acting over the suggestion made by Deputy Commissioner Budgam, the Govt gave consent to the award through Financial Commissioner FRevenueJ&K  (competent authority) on 13th August 2020 vide his official communication No: FC -LS/LA-4577/2017. This was done after a time period of more than 3 years and is writ large with legal lacunas.

Conclusion  

It is lack of elementary knowledge about the interpretation of laws that has prompted the Collector concerned (now posted as Assistant Commissioner Revenue-ACR Srinagar) to misinterpret the statute. It was the duty of the Government more particularly a responsibility was cast upon General Administration Department (GAD) and Institute of Management Public Administration and Rural Development  (IMPARD) to conduct frequent workshops/capacity building programmes to create an understanding among the officers of Govt particularly the land acquisition collectors.

Earlier too, I had urged the Govt to hold sensitization programmes for land revenue officers for better implementation and interpretation of the revenue laws. In absence of such workshops and training programmes, varying interpretations and statements are sine qua non.

However, in exercise of inherent jurisdiction, the Hon’ble High Court is the best forum to interpret all statutes and laws made applicable to UTs of J&K and Ladakh. The J&K state Judicial Academy is yet another forum which could prioritize holding of workshops, interactive sessions and sensitization programmes on the changes in land acquisition laws in Jammu & Kashmir as all the district and sessions judges exercise special powers under the both repealed and existing land acquisition laws. Not only the judicial officers be invited to participate in these sessions but the collectors of land acquisition should be invited as well.


Views, claims and details mentioned in the article are the author’s own responsibility and do not necessarily represent the editorial stance of Kashmir Observer 

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Dr Raja Muzaffar Bhat

Dr Raja Muzaffar Bhat is an Acumen Fellow and Chairman Jammu & Kashmir RTI Movement. Feedback [email protected]

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