Jammu and Kashmir’s new land law amendments – Are they constitutionally valid?

 

On 26^th October, the Ministry of Home Affairs notified the Jammu and Kashmir Reorganization (Adaptation of Central Laws) Third Order, 2020 (‘the Adaptation Order’). This executive order has made wide-ranging amendments to the land laws applicable in Jammu & Kashmir. These amendments are applicable only in the Union Territory of Jammu & Kashmir, and are not applicable in the Union Territory of Ladakh.

After explaining the procedure adopted for amending these land laws, we shall discuss the constitutional validity of the Adaptation Order notified by the Home Ministry.

We shall conclude our discussion by examining how the conversion of the State of Jammu & Kashmir into 2 Union Territories, along with the continued imposition of President’s Rule, has given the Central Government a justification for making legislative policy changes without any prior consultation.

The procedure adopted for notifying the Adaptation Order

Through the Adaptation Order notified by the Union Home Ministry, multiple land laws that were applicable in the erstwhile State of Jammu & Kashmir have either been repealed or amended. 12 land laws have been repealed, while 26 have been amended. After these amendments, outsiders (i.e. those who are not domicile residents of Jammu & Kashmir) can acquire both agricultural as well as non-agricultural land in the Union Territory.

This has led to an uproar, and politicians such as Omar Abdullah have contended that allowing outsiders to purchase land will further disempower the local population, and may alter the demography of Kashmir in the long run. It was also argued that such far-reaching changes to land laws were made without any prior stakeholder consultation.

It is pertinent to note here that in April, a similar ‘Adaptation Order’ was notified, to enact a new domicile policy for Jammu & Kashmir. This was done by amending the Jammu & Kashmir Civil Services (Decentralization and Recruitment) Act, 2010 – which prescribed the conditions that must be satisfied for claiming the status of a ‘domicile resident’ of Jammu & Kashmir. Just like the land law amendments, even the domicile policy was criticized on the ground that it was notified without any prior consultation or discussion.

In both of these Adaptation Orders, it has been stated that the Order derives legal force by virtue of Section 96 of the Jammu and Kashmir Reorganization Act, 2019 (‘the Reorganization Act’).

To recall, the Reorganization Act has bifurcated the erstwhile State of Jammu and Kashmir into two separate Union Territories of Jammu & Kashmir and Ladakh. This statute was introduced simultaneously with the Presidential Order and the Statutory Resolution which amended Article 370 of the Indian Constitution, on 5^th August 2019. To understand the nature and purpose of the Adaptation Order, it is instructive to refer to Section 96 of the Reorganization Act. Section 96 falls under Part XIV of the Reorganization Act, which consists of “Legal and miscellaneous provisions”. It states as follows:

"For the purpose of facilitating the application in relation to the successor Union Territories, of any law made before the appointed day, as detailed in Fifth Schedule, the Central Government may, before the expiration of one year from that day, by order, make such adaptations and modifications of the law, whether by way of repeal or amendment, as may be necessary or expedient, and thereupon every such law shall have effect subject to the adaptations and modifications so made until altered, repealed or amended by a competent Legislature or other competent authority"(emphasis supplied).

The Fifth Schedule referred to above consists of the Central and State Laws that are applicable in the newly formed Union Territories of Jammu & Kashmir and Ladakh. Section 96 confers the Central Government with the power to amend or repeal any Central or State law applicable in the Union Territories, if it considers it to be ‘necessary and expedient’.

This power is available for a period of one year from the appointed date i.e. the date on which the Reorganization Act came into force - which was 31^st October 2019. Hence, the Government can resort to Section 96 only upto 31^st October 2020. Now, such a provision enabling the adaptation and modification of existing laws by the Executive is not unique to this Reorganization Act. A similar provision is also present in Section 101 of the Andhra Pradesh Reorganization Act, 2014, which conferred the government with powers of adaptation and modification – for a period of 2 years.

An important question arises here with respect to the scope and ambit of the power of ‘adaptation and modification’ conferred by Section 96. The question that arises here is whether the power conferred by Section 96 is limited to making ‘adaptations and modifications’ solely for purposes of procedural and administrative efficiency, or whether it also extends to making policy alterations – such as allowing outsiders to purchase land, or enacting a new domicile policy.

The scope and ambit of the power of ‘adaptation and modification’

From a plain reading of Section 96, it is evident that the purpose of this provision is to adapt or modify any law for the purpose of facilitating its application to the successor Union Territories, if the Central Government feels that it is necessary and expedient to do so. This is further qualified by a one-year time limit, which means that adaptations and modifications can be made for a temporary period of one year - from the date on which the Reorganization Act has come into force.

The presence of a one-year time limit and the words “for the purpose of facilitating the application in relation to the successor Union Territories, of any law” indicates that such adaptations and modifications made through executive orders can be undertaken only for procedural and administrative matters connected with the bifurcation and the conversion of the erstwhile State into 2 Union Territories.  

This also implies that policy changes made through executive orders which are unconnected to this process of facilitating the application of existing laws shall be beyond the ambit of Section 96. This interpretation is also in line with the Supreme Court’s decision in the landmark In Re: The Delhi Laws Act (1951) case, where it was held that the Legislature cannot delegate matters of essential legislative policy to the Executive.

Keeping in mind the wording of Section 96 and the In Re: Delhi Laws Act decision, it can be argued that Section 96 cannot be used to make any substantive policy changes by amending existing laws; and it is restricted to matters of procedure and administration that are necessary for facilitating the smooth application of existing laws to the newly constituted Union Territories.

The Adaptation Orders referred to above have amended existing laws to permit outsiders to purchase land, and has also framed a new domicile policy for Jammu & Kashmir. These are clearly changes that fall within the realm of legislative policy, and are not simple modifications that have been made for procedural and administrative convenience. As they are substantive policy changes, it can be argued that they do not fall within the ambit of the power conferred by Section 96 – and should hence be struck down for going beyond what is permitted by the Reorganization Act.

There are hence strong grounds to challenge the Adaptation Orders in the Jammu & Kashmir High Court or the Supreme Court. Let us now examine certain constitutional provisions that the Central Government may invoke, in response to a possible legal challenge.

The Central Government’s possible line of defence

As per the Reorganization Act, the Union Territory of Ladakh does not have a Legislature, and is to be administered by a Lieutenant Governor, acting on behalf of the President. On the other hand, the Union Territory of Jammu & Kashmir follows a model similar to Pondicherry and Delhi. Along with a Lieutenant Governor, Jammu & Kashmir is envisaged to have a Legislature and a Council of Ministers headed by the Chief Minister.

Section 58 makes Article 239 and Article 240 of the Constitution applicable to the Union Territory of Ladakh. Article 240 states that for specified Union Territories (such as Pondicherry and now Ladakh), any Regulation made by the President which amends or repeals any applicable law shall have the same force as an Act of Parliament. Hence, with respect to the Union Territory of Ladakh, all executive orders issued by the Central Government shall be equivalent to a parliamentary law. However, the position is significantly different for the Union Territory of Jammu & Kashmir.

Unlike Ladakh, Article 240 has not been made directly applicable to the Union Territory of Jammu & Kashmir. This is by virtue of Section 13 of the Reorganization Act. Section 13 only states that the provisions contained in Article 239A of the Constitution as applicable to Pondicherry shall also be applicable to the Union Territory of J& K.

However, the Government may nevertheless invoke the proviso to Article 240(1) as a defence. The proviso to Article 240(1) states that if a body is created to function as the Legislature for the Union Territories enlisted under Article 239A (which now includes Pondicherry and Jammu & Kashmir), then until the first meeting of the Legislature, the Central Government may make Regulations that amend or repeal the existing laws that are applicable in the Union Territory. Also, as per Article 240(2), all such regulations made before the first meeting of the Legislature shall have the same force as a statute passed by Parliament.

This may be used as a justification by the Central Government in a possible constitutional challenge, as the Union Territory of Jammu and Kashmir is currently under President’s rule, and no Legislative Assembly has been created after the passage of the Reorganization Act. It may contend that even if the Adaptation Order is beyond the ambit of Section 96 of the Reorganization Act, it is saved by Article 239A and Article 240 – as Jammu & Kashmir does not have a Legislature as of now.  

Continued Imposition of President’s rule - A larger constitutional question

Keeping this possible justification aside, there is a larger constitutional question that the Court must address. As the Union Territory of Jammu and Kashmir is envisaged to have a Legislative Assembly, Article 239A read with the proviso to Article 240(1) permits the issuance of executive orders by the Central Government only until the first meeting of the Legislative Assembly, after fresh elections are held. Jammu & Kashmir was under President’s rule prior to its conversion to a Union Territory, and has continued to remain in President’s rule even after 31^st October 2019 (when the Reorganization Act came into force).

Article 356 of the Indian Constitution has continued to hold fort in Jammu & Kashmir since 19^th December 2018, and there is no specific information on any proposal to have fresh elections in the near future. The continued imposition of President’s rule and the conversion of the State into 2 Union Territories has given the Central Government a carte blanche to indiscriminately take advantage of the statutory and constitutional provisions referred to above, and rule by executive decree.

The rationale behind the Central Government wanting this unbridled power can be highlighted by referring to the Supreme Court’s decision in NCT of Delhi v. Union of India. In its decision, the Supreme Court held that although Delhi is a Union Territory and akin to a quasi-State, the actions of an elected government and an elected Legislature shall bind the Lieutenant Governor - for all matters that are within its legislative domain. Although this decision was based on an interpretation of Article 239AA of the Constitution, it applies squarely to Jammu & Kashmir – as akin to Delhi, Jammu & Kashmir is envisaged to have a Legislature despite being a Union Territory.

This implies that for all matters within its legislative domain, the Legislature of the Union Territory of Jammu & Kashmir shall stand supreme, and bind the Lieutenant Governor and the Central Government. Hence, if fresh elections had been held and a Legislative Assembly had been constituted, the Home Ministry could not have indiscriminately taken the benefit of Article 239A, Article 240, and Section 96 of the Reorganization Act - to bring about radical policy changes relating to land and domicile.  

As discussed above, the Adaptation Orders that made land and domicile-related changes were notified without any prior legislative consultation. If there was an elected Legislature in the first place, amendments to land laws, or a new domicile policy could only have been enacted through legislation, after debate and discussions involving members across party lines. The conversion to Union Territories coupled with the imposition of President’s rule has prevented any such discussion from taking place, and has granted the Central Government with unbridled power to make policy prescriptions without any pre-legislative consultation process.

While the Central Government may contend that once there is an elected legislature, the Legislature may further amend or repeal the changes after discussion, this shall only buttress my primary point – that as the presence of a Legislature is envisaged, such legislative policy prescriptions should be left solely within its domain.

This only culminates in one common end – which is the need for a greater legal and judicial conversation on whether it is within the spirit of the constitutional framework to indefinitely impose and repeatedly extend President’s rule under Article 356, and rule virtually by executive decree. Until this status quo remains, there shall only be rule by law in Jammu & Kashmir, and not rule of law.

[An earlier version of this piece was posted on the Indian Constitutional Law and Philosophy Blog in April. It is being reposted here with prior permission, after making changes based on developments that have taken place since April].