Article 370 ‘Revoked’: How Central Laws Will Impact Kashmiris
On Tuesday, 6 August, the Modi government has revoked Article 370 of the Constitution of India, and also bifurcated the existing State of Jammu and Kashmir into two Union Territories: (1) Ladakh; and (2) J&K.
This was not previously possible, with the J&K government having authority to pass its own laws on all matters except defence, external affairs and communications, giving it far more legislative power than any other state. If the state did not pass a law corresponding to a Central Act, this could result in major legal developments not being applicable to its people – for instance, the Right to Information Act.
This did not mean J&K had entirely separate laws from the rest of India – many Central laws either had an exact J&K version passed by the State Government and last year by Governor Satya Pal Malik (for example on Aadhaar, medical termination of pregnancy, dissolution of Muslim marriages), or the relevant state law was essentially the same (the Ranbir Penal Code, for instance).
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 J&K.
The fifth schedule of the Jammu and Kashmir Reorganisation Act 2019, which gives effect to the bifurcation, specifies 106 Central Acts which will be introduced in the new Union Territories after the Bill comes into force and also lists 153 State Acts which will be repealed at the same time. 7 State Acts will continue to operate in the new Union Territories in modified form.
Here are five of the more significant changes that will take place:
Indian Penal Code IN Ranbir Penal Code OUT
Although J&K’s Ranbir Penal Code (RPC) is 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 will no longer apply to J&K once the reorganisation is completed.
- Section 377 of the RPC was not affected by the Supreme Court’s landmark judgment decriminalising consensual homosexual acts. Which means now that the IPC is the applicable criminal law in the region, the Constitution Bench’s landmark reading down of Section 377 of the IPC will be in force there as well, in what will be a welcome development for the LGBTQ+ community in J&K.
- The Supreme Court’s striking off of the child marital exception in Section 375 of the IPC will also apply to J&K now. 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.
- The RPC does not have the equivalent of the IPC’s Section 304-B, which punishes ‘dowry deaths’. The IPC provision is very distinct, as 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.
2005 Amendment to Hindu Succession Act Now Applicable
J&K passed its own Hindu Succession Act in 1956, at the same time as the Central Act (part of a broader package of reforms to Hindu personal law) was passed.
However, the 2005 amendment to the Central Act, which was a landmark development for Hindu women, was not applicable in J&K as a corresponding amendment to the State Act was never made. This amendment will now be 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 ancestral property even after marriage, and they get the same rights in agricultural land (which had been excluded from earlier reforms) as men.
POCSO Act 2012 Applicable - With 2019 Amendments
The Protection of Children from Sexual Offences Act 2012 was a very important legislation in the fight against sexual abuse of children, punishing abuse of boys and girls (India’s rape laws under the IPC are not gender-neutral). It covered all forms of inappropriate conduct towards children and introduced important media guidelines to ensure responsible reporting of such incidents.
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 extension of the POCSO Act to J&K and Ladakh is therefore a welcome move.
The 2019 amendments to the POCSO Act, now applicable in J&K as well thanks to the reorganisation, include 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 Age of 16 Can be Tried as Adults
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.
This could have played a role in the Kathua rape and murder case, for instance, where one of the accused is a juvenile over the age of 16 (though there is a challenge claiming he was in fact an adult at the time of the offence). After the reorganisation, with 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 three for juvenile offenders in general.
Kashmiri Customs and State Regulations on Property Transfers No Longer Valid
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 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 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.
The protections in the old Section 139 included rights for local communities in various parts of J&K over land and resources, and restrictions on any alienation of these to outside parties – but none of these protections will be valid any longer. Unlike the other changes discussed above which would have a positive effect, this is one that could have negative consequences for the people of J&K, as some of these protections have been in place for over a century (and reflected customs that were even older).
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