Intro: Indian laws were part of J&K even prior to the accession of the state.
There is widespread propaganda by separatists including mainstream parties in Kashmir that large number of laws imposed by ‘India’ has destroyed the autonomous character of Jammu and Kashmir. It has thus become necessary to know the correct legal position to help people adopt a sagacious and realistic view of the coming future; otherwise, the ignorance of the past would corrupt our future.
Other than the issue of Article 370, which came into being post-1947 accession of the state to India, it needs to be known, if there were any kind of legal laws in J&K prior to its accession with India, in October, 1947.
The truth is that Indian laws were there, in substance, in J&K even prior to the accession. General Clauses Act of India which is an interpretative Act was itself applied to J&K in 1920 and this Act defines the pre-independence India as ‘British India together with the territories of Rulers’. In fact, the whole corpus of state laws, excluding those relating to customary laws and some pertaining to purely local conditions, was adopted fully or with minor changes in Indian laws. Indian Codes, both of Civil and criminal procedures, Evidence Act and a host of other enactments were adopted by J&K in the years between 1920 and 1932. Major and substantive laws like Code of Civil Procedure and Contract Act were enacted in 1977 Bikrami Samvat (1920 A.D).These were verbatim copies, without any change in the numbering of sections of parent Indian laws. Indian Penal Code renamed as Ranbir Penal Code (named after Ranbir Singh, second Dogra ruler) was applied in 1938 A.D. [The above Acts were dated in Bikram Samvat (established by emperor Vikramaditya, the Bikram Samvat calendar is 56.7 years ahead (in count) of the solar Gregorian calendar), but for the convenience of the readers of this article, the dates of the prevalent Gregorian calendar in India are given.] Till the end of March, 1955, the Bikram Samvat was the official calendar prevalent in J&K. It was replaced by the Gregorian calendar since April 1955. Conversion formula being- to get B.S year add 57 years to the A.D year. For example, the J&K Easements Act B.S 1977 was, in fact, the extension of central Easements Act which was extended to the state in 1920 A.D.
Another category of laws is the pre-accession laws which were repealed not ‘en bloc’ but as and when deficiency in state laws for meeting administrative requirements was experienced. For example-J&K’s ‘Preven-tion of Food Adulteration Act’ of 1958 was replaced in 1971 by extending the Central ‘Food Adulteration Act’ of 1954- as the state law could not adequately meet administrative requirements: J&K’s ‘Ancient Monuments Preservation Act’ of 1920 was substituted by much more comprehensive Central ‘Ancient Monuments and Archaeological Sites & Remains Act’ of 1958 for better protection against vandalism of Kashmir’s ancient monuments.
The Central Labour Laws (Extension to J&K) Act of 1970 enabled application of large number of beneficial enactments to the state e.g. The Minimum Wages Act, Factories Act, Labour Welfare Fund Act etc. Reserve Bank of India Act 1934 was extended to J&K in 1956. Had this not been done, J&K could not have availed many of the manifold financial advantages which are available to J&K under RBI’s beneficial umbrella. If Banking (Acquisition and Transfer of Undertakings) Acts of 1970 and 1980 had not been applied to J&K, the J&K Bank, state’s only Scheduled Bank could not have been adequate for the state’s credit and developmental requirements. Similarly, coverage of Life Insurance in the state was ensured to its citizens by the extension of LIC Act in 1956.
Sheikh Abdullah was restored to power after the 1975 Indira-Sheikh Accord. He remained in power for about seven years till his demise in 1982.The ’75 Accord had stated that relationship between the Centre and the State would continue to be governed by Article 370 of Indian Constitution. It further mentioned that if the State Government felt that any law extended till then was detrimental to the interests of the state, the position could be reviewed “sympathetically”. The Sheikh constituted a 3-member Cabinet Sub-Committee, called the Central Laws Review Committee (CLRC) in 1977. It gave its report in 1981. DD Thakur, Chairman of CLRC stated, “The needles of the clock cannot be turned back…none of the Central laws had impinged on the state’s special status or eroded the Kashmiri identity. Most of the Central laws are necessary to ensure basic freedom and justice for the people of the state.” It further stated that if these laws were to be scrapped and new laws were to be enacted, “again we will have to borrow from the same Constitution.”
GN Kochak and GM Shah, other two members gave a different report based on raw emotion and misplaced sentiments. Sheikh, however, accepted Chairman DD Thakur’s views and report. The matter rested there.
It is very significant to appreciate here that no further Constitution order was issued after the ’75 Indira-Sheikh Accord. It is only in the wake of militancy which erupted in 1990 that the State Assembly was dissolved resulting in Governor/President’s rule for as long as six years.
Before the 1996 elections, in the altered political climate, Farooq Abdullah started saying that he won’t contest the elections, unless Government of India agreed to grant autonomy, or restore pre-1953 position. The significance of this year was that it was the date of arrest of Sheikh Abdullah but as stated above, the Sheikh himself never asked for restoration of pre-1953 position.
Further constitutional evolution of the state shows that in the decades following the mid-fifties, integration was fortified in manifold ways. Apart from extending beneficial legislation and laws from time to time, host of national institutions and systems were introduced. Full jurisdiction of Supreme Court was extended in stages, although after the 1950 Agreement, only appellate jurisdiction of the Apex court was there. Comptroller and Auditor General’s jurisdiction was applied in 1958. So was the All India Services Act. In, 1960, Supreme Court’s civil and criminal jurisdiction was extended along with SLP (Special Leave to Appeal) post the decision of the J&K High Court.
|In seven long years of the Sheikh’s rule 1975-82, no communication was sent by his government for repealing any of the extended central laws|
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Let us take examples to show how absurd is the demand for abrogation of some of the Acts extended to the state, which are actually beneficial for the people of the state.
NABARD (National Agricultural Bank for Reconstruction and Develop-ment) agricultural finance and micro-credit facilities were sought to be extended to J&K: Had this not been done, crop insurance and other facilities for agricultural loans would have not been available to farmers in J&K.
Another fact of great political significance ought to be highlighted here. In 1966, direct elections to the Lok Sabha (LS) were introduced in J&K. Previously; state’s representation in the LS was by nomination which meant nomination by the ruling dispensation in the state. In the latest election to LS held in May, 2014, all the three candidates from Kashmir Valley who have been elected are from the Peoples Democratic Party (the party in opposition in the State Assembly). If the nomination system had continued (in keeping with the autonomous character of the state), then the three candidates would have been from the ruling party/ies of the state. Secondly, had the jurisdiction of the Election Commission of India not been extended to the state, how they could have been elected because a State Election Commission then would have been under the influence of the State’s ruling political executive?
It is only the impartiality and neutrality of the central election commission which has ensured this outcome. Is it not a great tribute to the functioning of Indian democracy in J&K? Can there be a better example of Self-Rule than this.
MP Khosla (The writer is a retired IAS and ex-Chief Secretary, Govt of J&K)