Analysis: Changes in Legal Framework due to Bifurcation of Jammu and Kashmir

Photo by Imad Clicks on Pexels.com

Jammu & Kashmir, also known as paradise on earth is region full of mountains located at the intersection of India, Pakistan, China and Afghanistan. It appears to be landlocked, remote, and covered by successive ranges of Himalayas. “Jammu & Kashmir was named as the paradise on Earth by the Mughals as it has everything that a paradise should have which includes its snowcapped mountains, sunny gardens and romantic households.[1]” However, since past seventy years, the paradise on earth has seen a lot of violence and loss of many lives due to the bitterness in sovereignty dispute of India and Pakistan. The paradise continues to observe bloodshed even today.

The sovereignty of Jammu & Kashmir state has always been an important part of history. Since the time of independence i.e., 1947, majority of region of Jammu & Kashmir comes under the Republic of India. The terms of accession signed by monarchs of Jammu & Kashmir with government of India have been a guide for relationship between Jammu & Kashmir and India. The treaty of accession provided India with the control of power of defense, external affairs and communications in the state of Jammu & Kashmir. The treaty was arranged in such a way that it provided the state of Jammu & Kashmir pseudo autonomy over their internal affairs. The bond between state of Jammu & Kashmir and India got inseparable leading to slowly intensifying the treaty.

On August 5th of 2019, the government of India officially issued presidential orders for the annulment of the 72 years long autonomy of Jammu & Kashmir under the article 370 of Indian constitution. Simultaneously, the very same day, Republic of India passed a bill which made the state of Jammu & Kashmir bifurcate into two new union territories i.e., Ladakh and Jammu & Kashmir. The two measures i.e., the end of special status given to Jammu & Kashmir along with the transformation into two union territories made possible for all bills, act, laws passed by parliament to be used without any restriction of region. The freedom of applying all the laws passed in parliament was earlier not possible as Jammu & Kashmir government was having special powers to pass their own laws except in the area of external affairs, defense and communications. These special powers provided the state of Jammu and Kashmir with way more legislative powers in comparison to other states in India. If say, a state did not pass or comply with one law issued by central government, then the result could be devastating, people of that particular state could be kept away from major legal developments that could have benefitted them like for instance – a substantial thing like Right to Information (RTI).

Jammu & Kashmir having special status did not mean that it had completely different laws from the rest of the states in India. “It was observed that even in special status, many central laws were being passed by the state government and Governor Satya Pal Malik[2]” that got implied in the state of Jammu & Kashmir by just making an exact J&K version of it (for example on medical termination of pregnancy, dissolution of Muslim Marriages, Aadhar). Also, there have been few essential state laws which were implied as it is (for example the Ranbir penal code). However, there were many laws or important amendments of the laws which were passed by Parliament of India but would not be amended in the Jammu and Kashmir version of that law.

So, as a result of the revocation of article 370 and simultaneously bifurcation of the state of Jammu & Kashmir have led to some genuine changes in legal frameworks which have brought legal consequences for the people of Jammu & Kashmir.

Overview of Article 370 –

The most controversial and disputed article within the constitution of India is Article 370. Article 370 has a complex history which was full of immeasurable and temporary provisions. It was also decorated as a “temporary provision” of Indian constitution. According to this article “any modification, amendments or exceptions in Article 370 within the Constitution of India in the application to the Jammu and Kashmir State were within the discretion of the Assembly[3].” There were both historical as well as political reasons to why Jammu & Kashmir under article 370 was accorded with a special status before it was abrogated before 2019. Article 370 was also titled as national liability of Government of India. The basis of this article was not dependent on the legal or constitutional dimension, rather it was more based on religious and political dimensions. When studied in deep, this article also displays the deep understanding of unilateral and bilateral government in a country.

The Path to Article 370 –

Ascending the throne of the princely state of Jammu and Kashmir under British Raj, came Maharaja Hari Singh. Before Maharaja could even take over the reign of his princely state, many men in various regions wanted to get employed in their native region and also, they wanted to restrict outsiders claiming the jobs available in their region. The resentment to do so grew like fire after world-war-I. The resentment was basically against the educated men coming from the districts that neighbored Jammu and Kashmir. These men were perceived as people who came to encroach upon the rights of the state’s indigenous population. In the early stages of resentment, Maharaja tried to ignore this matter but as the agitation grew out of control and Maharaja saw that there was no way to make the agitated citizens to withdraw, he was forced to communicate the declaration that the agitators wanted. He declared that state subjects would be the first preference to get the employment over outsiders. The order also consisted of one more clause and that was that, outsiders will be barred if they would hold an immovable property within the princely state of Jammu and Kashmir. Although orders were passes by the Maharaja but regional and communal tensions continued and were constantly brewing throughout the year, along with the various events of India’s Independence. Lastly, Article 370 and article 35A found its way to the constitution and the state’s law leading Jammu and Kashmir to have a special status within India.
Once the Constitution of India was adopted, Article 370 was added in it on the basis of Instrument of Accession signed between India and the state of Jammu and Kashmir. Whereas, all the other states of India were signing two documents i.e., Instrument of Accession and Instrument of Merger, which made the states merge completely with India, without any special status or relation, the state of Jammu & Kashmir never did the same. The special power that was provided to the state of J&K was always under great contention. Although many people believed that the special status helped the state to establish autonomy which ultimately helped in its existence. On the contrary, many people believed that the root cause for all the problems faced by Jammu & Kashmir before abrogation was due to this article. This conflict in opinions has led to interesting demographic variations in which people could observe that majority of Hindus settled in Jammu region while majority of Muslims settled in Kashmir region.

CHANGES IN LEGISLATION AFTER THE REORGANIZATION-

The abrogation of article 370 and formation of two union territories of Ladakh and Jammu & Kashmir had some genuine legal ramification for people of Jammu and Kashmir. Under the fifth schedule of Jammu and Kashmir Reorganization Act, 2019, 106 Central Act were introduced and 153 state acts were repealed simultaneously in the Union Territories. Also, 7 state acts were implemented in a modified form.

The most remarkable changes that took place are-

  1. Termination of Ranbir Penal Code (RPC) –

Ranbir Penal Code was withdrawn and Indian Penal Code (IPC) was implemented after the reorganization of Jammu & Kashmir. Although RPC was similar to IPC, the following three provisions of it were no longer effective.

  1. Unconstitutionality of Section 377 as held by the Honorable Supreme Court in Navtej Singh Johar vs Union of India was not implemented in the state of Jammu & Kashmir in 2018. Whereas now since IPC is the applicable criminal law in the union territory of Jammu & Kashmir, the unconstitutionality of section 377 will be implemented here as well.
  2. The striking off of the child marital exception under section 375 of the IPC as held by the Honorable Supreme Court of India will also now be effectively implemented in the union territory of Jammu and Kashmir. “As a result, 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.[4]
  3. The provision and punishment for ‘dowry deaths’ under section 304-B of IPC will also be applicable to the union territories.
  • Implementation of Code of Criminal Procedure, 1973 –

The CrPC was made effective within the union territories of Jammu & Kashmir and Ladakh after the reorganization act was passed. As per the act, “in sub-section (2) of section 1 of CrPC, the words except in Jammu and Kashmir[5]” was to be omitted.

  • Guaranteed Right to Education-

Earlier, the basic Right to Education was not granted to the people of Jammu and Kashmir. With the reorganization of the state, children between the age group of 8 to 14 years living in union territory of Jammu and Kashmir can now avail the Right to Education.

  • The Hindu Succession Amendment Act, 2005 will now be applicable to the union territories of Ladakh and Jammu & Kashmir-

The Hindu Succession Act, 1956 was passed at the same time by the central government for whole of India and by the government of Jammu and Kashmir for its state. However, the Central Act was amended in 2005 with a remarkable development for Hindu women, but it was not implemented in the state of Jammu & Kashmir. Since, Central Act is now in force, this amendment will be effective and applicable to the newly formed union territories as well.

  • Rights of West Pakistan Refugees-

Unlike the situation before reorganization, refugees of West Pakistan can now avail citizenship, democratic and property rights in the union territory of Jammu and Kashmir.

  • POCSO Act, 2012 (including amendments of 2019) will now be applicable –

The Protection of Child from Sexual Offences Act, 2012 was enacted by the Central government in 2012 for the entire country except the state of Jammu & Kashmir. It was in 2018 that the state government of Jammu and Kashmir had implemented their own version of this legislation, but in 2019 again, they did not implement the amendments that were passed by the central government. As a result of the reorganization, the amendments of 2019 in POCSO Act will not be implemented in Jammu & Kashmir as well as Ladakh.

  • Implementation of Right To Information Act –

Earlier, because of the inapplicability of Right to Information Act, the elected government of the state was not accountable, responsible and transparent. In the present scenario, Right to Information, a fundamental right is applicable and investigating authorities like CBI can also invade without taking any permission.

  • Implementation of Juvenile Justice (Care and Protection of Children) Act, 2015 in the union territories-

Earlier, Jammu and Kashmir’s legislation for juveniles were consistent with India’s Juvenile Justice Act, 2000. However, a new legislation known as Juvenile Justice (Care and Protection of Children) Act was passed in 2015 for whole of India but was not implemented in the state of Jammu & Kashmir. Presently, this act of 2015 is applicable to the union territories of Ladakh and Jammu and Kashmir.

  • State regulation on Property transfer and Kashmiri customs now invalid-

Transfer of Property Act, 1977 was effective in the state of Jammu and Kashmir back then and will continue to remain in effect now. “However, it will be 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.[6]” Section 139 gave rights over land, resources and to curtail alienation of outside parties to local communities of Jammu and Kashmir, but these rights are no longer valid and cannot be practiced now.

  1. The Benami Transaction (Prohibition) Act, 1988 is now applicable-

The reorganization bill stated that the words “except the state of Jammu and Kashmir[7]” in sub-section (2) of section 1 of this act shall be omitted making this act effective in the union territory of Jammu and Kashmir.

  1.  The Hindu Marriage Act, 1955, the Hindu Adoption and Maintenance Act of 1956, The Hindu Disposition of Property Act of 1960 was all enforced in the union territories after the reorganization.
  2. Earlier, the Prohibition of Child Marriage Act, 2007 was not implemented in the state of Jammu and Kashmir. As a result of the reorganization, this act is not applicable to the union territories.
  3. Earlier, scheduled tribes or other traditional communities living in forests had no rights or protection. Whereas, now with the applicability of Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forests Rights) Act, 2007, their rights will be protected.
  4. With the recent implementation of Special Marriage Act, 1954 in the union territory of Jammu and Kashmir, more religious harmony and tolerance is expected.
  5. The Consumer Protection Act, 1986 – “In sub-section (2) of section 1, words, except the State of Jammu and Kashmir[8]” was omitted and this act was brought into force in the union territories.
  6. The Disturbed Areas (Special Courts) Act, 1976 – “In sub-section (2) of section 1, words, except the State of Jammu and Kashmir[9]” was omitted and the act was implemented in these union territories unlike earlier times.

In terms of legislation, there were the few major changes brought in union territories of Ladakh and Jammu and Kashmir.

CONCLUSION –

Through this article we can summarize that Maharaja Hari Singh introduced two orders for the princely state of Jammu and Kashmir, which later got written in the constitution of India as article 370 and 35A. These articles were the cause which provided a special status to the state of Jammu & Kashmir. This special status was taken away from Jammu & Kashmir when the central government in August 2019 revoked article 370 and 35A and simultaneously created two new union territories out of the state of Jammu and Kashmir. This bifurcation of Jammu and Kashmir brought many changes including many major changes in the legal framework.

Author: Nikita Srivastava, SVKM’S NMIMS Kirit. P Mehta School of Law, Mumbai.


[1] Adarsh Vijayakumaran, “The Indian Determination of Jammu and Kashmir: A Critical Appraisal of History, Sovereignty, and Jus Genitium” 12 SSRN 15, 20 (2020)

[2] Vakasha Sachdev, “Article 370 ‘Revoked’: How Central Laws Will Impact Kashmiris”, The Quint, Aug.7, 2019.

[3] Anshum Agarwal, “Revocation of Article 370”, 1 Lawjustify Journal, 37,48

[4] Vakasha Sachdev, “Article 370 ‘Revoked’: How Central Laws Will Impact Kashmiris”, The Quint, Aug.7, 2019.

[5] Ministry of Law and Justice, “The Jammu and Kashmir Reorganisation Act, 2019”, 37-41 (August, 2019)

[7] Ministry of Law and Justice, “The Jammu and Kashmir Reorganisation Act, 2019”, 37-41 (August, 2019)

[8] Ministry of Law and Justice, “The Jammu and Kashmir Reorganisation Act, 2019”, 37-41 (August, 2019)

[9] Ministry of Law and Justice, “The Jammu and Kashmir Reorganisation Act, 2019”, 37-41 (August, 2019)

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s