Thursday, February 22, 2024

Revocation of Article 370 and after-effects in J&K and Ladakh

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The Government of India revoked Article 370 of the Constitution of India on August 6, 2019 and bifurcated the existing state of J&K into two Union Territories, namely UT of J&K and UT of Ladakh.

The above action by the present government results to a change in ‘application of laws’ applied earlier in the two UTs. Now the two UTs will follow all the laws passed by the Parliament without any restrictions which was not previously possible. The revocation of the special status resulted in various legal developments being applicable to the people of the region, e.g. developments of Supreme Court of India in various judgments, and application of Right to Information Act etc.

Article 239 of the Constitution of India confers power onto the President of India to appoint an administrator (Lieutenant Governor) for the UTs. Article 159 of the Constitution of India sets out the oath taken by the governor (LG) administered by the Chief Justice of the High Court of the state, or any other senior justice if the chief is not available.

Gita Mittal, Chief Justice of J&K High Court conducted the oath of newly-appointed Lieutenant Governors (LGs) of J&K and Ladakh, namely Girish Chandra Murmu and Radha Krishna Mathur, respectively.

The rules regarding the ‘Transaction of Business’ between the state legislature of the UTs and LG appointed by the President of India were notified by the Ministry of Home Affairs notification dated August 27, 2019 as it states, if the LG and the council of ministers differ on any issue, the former is required to refer the matter to the President and the LG must adhere to the decision taken by the President.

MHA’s Notification:

“In exercise of the powers conferred by Section 55 of the Jammu and Kashmir Reorganisation Act, 2019, read with the Proclamation, dated 31st October, 2019 issued under section 73 of the Reorganisation Act, the President hereby makes the following rules,”

The central government invoked the proclamation issued by the President of India to impose President’s Rule in J&K UT, a ‘Presidential proclamation’ is an instrument similar to that as provided under Article 356 i.e. issued for the imposition of president’s rule in states since The power conferred under Article 356 limits to state and not UTs, it was imposed u/s 73 of the 2019 Reorganisation Act.

The above proclamation suspends Section 55 of the Reorganisation Act i.e. acting on the advice of the council of ministers of the state; it also means that President of India undertakes all the powers and functions of the government of the UT as mentioned in the proclamation and all those powers are vested in and exercisable by the LGs of the UTs.

The rules also state that any derogation between the council of ministers and LG of the state, the matter goes to President to decide.

Section 96 of the J&K Reorganization Act, 2019 (came into force on October 31, 2019) and gives effect to the bifurcation. 153 State Acts were repealed and at the same time 106 Central Acts were introduced, keeping only 7 State Acts to continue to operate in the new UTs in modified form.

Some of those acts are: IPC, 1860; CPC, 1908; CrPC, 1973; Prevention Of Corruption Act, 1988; Representation Of People Act, 1950; Press Council Act, 1978; Census Act 1948; Income-Tax Act, 1961; Census Act, 1948; Protection Of Human Rights Act, 1993; Insolvency And Bankruptcy Code, 2016; Press and Registration Of Books Act, 1867, Public Debt Act, 1944, Indian Forest Act, 1927; Securitization And Reconstruction Of Financial Assets And Enforcement Of Security Interest Act, 2002; All India Services Act, 1951; The Arbitration And Conciliation Act, 1996; Official Languages Act, 1963; Rehabilitation And Resettlement Act, 2013; Railway Property (Unlawful Possession) Act, 1966; Limitation Act, 1963; the Court-Fees Act, 1870; Textiles Committee Act, 1963; National Co-Operative Development Corporation Act, 1962.

Changes that took place after the revocation of Article 370

J&K had a separate flag owing to the provisions of Article 370 in the Constitution of India. Now, J&K’s state flag and emblem ceased to exist.

J&K had a bicameral assembly i.e. Legislative Assembly and Legislative Council. Now J&K has a separate unicameral assembly and the newly created UT of Ladakh will have no state assembly. 36 Member of Legislative Council positions have ceased to exist in J&K or Ladakh.

The authority over three key areas i.e. law and order, transfers and appointments of IPS, IAS and ACB will be looked after by the two LGs of the UTs instead of the Chief Minister as per the Presidential Proclamation.

The existing state cadre of officers will remain unchanged. However, the new appointments will be made from the Arunachal Pradesh-Goa-Mizoram-Union Territory (AGMUT) cadre.

While J&K will continue to have a chief secretary and a director general of police (DGP), Ladakh Police is headed by Inspector General of Police (IGP). Police of both the UTs is under the direct control of Department of Home Affairs, Government of India.

The state laws specially meant for the state will continue to remain in force, such as the Jammu and Kashmir Shri Mata Vaishno Devi Shrine Act, 1988; the Jammu and Kashmir Saffron Act, 2007; the Jammu and Kashmir Aerial Ropeways Act, 2002; Sher-i-Kashmir University of Agricultural Sciences and Technology Act, 1982; the Jammu and Kashmir State Sheep and Sheep Products Development Board Act, 1979 etc. There are a total of 166 state laws.

The Jammu and Kashmir Benami Transactions (Prohibition) Act; the Jammu and Kashmir Juvenile Justice (Care and Protection of Children) Act, 2013 were some of the acts repealed and replaced by the central laws.

Ranbir Penal Code (RPC) replaced by Indian Penal Code (IPC)

When RPC was enacted in 1932 it followed the pattern of IPC, 1860 except a few sections were repealed and a few were added. Since, the state of J&K was never under the purview of IPC, legislations and precedents set forth by the Indian Parliament and the Supreme Court of India respectively had no effect over the laws enacted in J&K.

·         Section 4 of IPC states that it covers even the crimes which are done by computer resources located in India whereas there is nothing mentioned in RPC related to such crimes.

·         Section 153AA of IPC states that knowingly carrying arms in a mass drill is punishable under the law but RPC is quiet with respect to this.

·         Section 195A (Para 2) of IPC states that if an innocent person is convicted and sentenced in consequence of such false evidence, with either death or imprisonment for more than 7 years, the person who threatens shall be punished with the same punishment and sentence in the manner and to the same extent as such innocent person is punished and sentence whereas there is no such provision in RPC for this matter.

·         Section 281 of IPC states that anyone who misguides a navigator by showing false light, mark or buoy should be punished under law but RPC doesn’t say anything about this.

·         Section 303 of IPC i.e. Punishment for murder by life-convict, Mithu v. State of Punjab AIR1983 SC 473Ranjit Singh vs. UT 1983 Cr LJ 1730 (SC), Bhagwan v. State of Punjab AIR 1984 SC 1120: 1984 Cr LJ 1928the mandatory imposition of death sentence on a life-convict undergoing life sentence has been struck down by Supreme court as unconstitutional where as there is no such thing regarding the Justice for life-convict in RPC.

·         Section 174-A, IPC Non- appearance in response to a proclamation under section 82 of ACT 2 of 1974, i.e. Code of Criminal Procedure, 1974 is not mentioned in RPC.

·         Section 304B, IPC dealing with respect to punishment in case of ‘dowry deaths’ i.e. it includes a presumption that the unnatural death of any married woman within seven years of marriage is a dowry death if it can be shown that there were any demands for dowry from the husband’s family. (RPC never had any equivalent section).

·         Supreme Court’s landmark judgment decriminalising consensual homosexual acts as mentioned in section 377 of the RPC was not affected earlier when RPC was still in force.

·         The Supreme Court’s striking off of the child marital exception in Section 375, IPC will also apply to both the UTs i.e. if a man has sexual intercourse with a girl between the ages of 15-18, this will be rape regardless of whether they are married.

·         Section 190ARPC states that government can punish anyone who circulates, publishes anything which is forfeited by government and the CM of the state that whether it was seditious or not. This section is not mentioned in IPC and certainly against the freedom of press, thought and expression.

·         Section 167ARPC states that any public servant who authorises payment to a contractor for work that is not executed as stated in contract is punishable under law.

·         Section 420ARPC states punishment for cheating with government and public authorities in performance of contract.

·         Section 204ARPCStates punishment for obliterating and defacing of evidence whereas in IPC punishment is given for only destroying the evidence.

·         Section 21, RPC widens the scope of who can be considered as Public Servant Whereas IPC has certain fixed criteria for it.

Though there aren’t major changes that occurred in terms of Penal Law after the extension of Indian Penal Code to the UTs of J&K and Ladakh and the function of police remains the same except a few places where the officers and the law officers needs to be trained and made aware of the changes (as mentioned above) that occurred, after the change from RPC to IPC and other state acts that were repealed, most of the old state acts were similar to that of the central acts except the amendments and legislations (and precedents) that took place in the central acts and not accepted/ modified by the J&K state government in the past. All such modification(s) in the Indian law is now widely applicable in the UT (s) of J&K and Ladakh.

Other Acts and Laws

The POCSO Act, 2012 now applicable.

The elected governments of J&K had failed to bring in their own version of this legislation, and it was only when the Governor was in charge in 2018 that a version of this law was introduced in the State. This Governor’s Act, however, would not have included the new amendments passed on 1 August by Parliament without an additional amendment.

The 2019 amendments to the POCSO Act, now applicable in J&K and it includes the death penalty for aggravated penetrative assault of a child below the age of 12 (this had also been introduced for rape of girls below the age of 12 in the IPC in 2018), and makes child pornography a separate, punishable offence.

Juveniles above the age of 16 can now be tried as adult in J&K and Ladakh

The Jammu and Kashmir Juvenile Justice (Care and Protection of Children) Act, 2013 (those aged 18 years and younger) corresponded to India’s Juvenile Justice Act passed in 2000. However, a new law replaced the law in India in 2015. The new Juvenile Justice (Care and Protection of Children) Act 2015 included several changes i.e. 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.

After the revocation of 370 and the 2015 Act now in force in J&K and Ladakh, such juveniles who commit serious crimes in J&K could be tried as adults, and face longer sentences than the current maximum of 3 years for juvenile offenders in general.

Hindu Succession Act (2005 Amendment) now applicable

Although J&K had a similar act passed in 1956, amendments made to HSA in 2005 were never adopted by the state of J&K.

The amendment to the Central Act in 2005, a landmark development for Hindu women was a crucial step towards gender equality, ensuring women retain their rights in ancestral property even after marriage, and they get the same rights in agricultural land (which had been excluded from earlier reforms) as men is now applicable to both the UTs.

Kashmiri Customs and State Regulations on Property Transfers No Longer Valid

The Transfer of Property Act 1882 is applicable across the country, but in J&K it was subject to the state’s own laws on transfer of immovable property, including those stemming from Article 35A.

Read Also: Ex-Bhushan Steel chief submits plea challenging IBC provisions before Delhi High Court

J&K had its own Transfer of Property Act 1977, which will continue to remain in force in the new Union Territories. However, the act was diluted resulting in Section 139 to be repealed, which protected any “Regulation, Hidayat, Resolution, Ailan, Rule or valid custom” in force in the region. It restricted and regulated the transfer of immovable property in the state of J&K.

-By Akarsh Sharma, Advocate, Supreme Court of India

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