Self Reliant Kashmir, Legally

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The Law which abrogated a Law to introduce a new Law is itself under Judicial Scrutiny and is presently the subject matter of WP(C) 1099 of 2019 before the Hon’ble Supreme Court of India, but in the absence of any decree nisi, as the situation persists, The Jammu and Kashmir Reorganization Act, 2019 by way of Section 95 extended 106 Central Acts to the newly created Union Territory(UT) of Jammu and Kashmir (J&K) while dousing 153 erstwhile Acts passed by the predecessor State Legislature and securing 166 erstwhile Acts.

The Central Acts, which have now been made applicable to J&K aims at uniformity in Law across the country and promise its people to access to laws in the form of rights, as is being extended to the rest of the countrymen. The extension of Central Acts made on 9th of August 2019, but the tangible implementation in forms of establishing requisite forums, Tribunals etc. is still a far reality, as many of the Central Acts extended to J&K under The Jammu and Kashmir Reorganization Act, 2019 have a prerequisite of a separate Judicial forum for its effective implementation, as the jurisdiction does not rest with the traditional courts for adjudication.

For example, the Jammu and Kashmir Reorganization Act, 2019 extended Central Acts like The Administrative Tribunal Act 1985 or The Family Courts Act 1984, The Legal Services Authorities Act, The Gram Nyayalayas Act, 2009 and many other in the list which prerequisites an independent judicial establishment for its implementation or some of the Acts have a separate composition or organizational structure which differs from the erstwhile Acts and hence needs systematic reorganization to keep the these Central Acts alive and effective like the rest of the country.

The establishment of forums would be a two-fold task, First would be the infrastructural challenge and Second “distribution”, and the latter would require a pragmatic approach and consistency in distribution to keep the two brothers happy, i.e. Jammu and Kashmir. An old Afghan proverb (Brothers love when equal) should be the weighing scale for the state for establishing new forums, tribunals and courts in J&K, as leaning to one side can disquiet the stakeholders on the other. The recent development wherein the State of J&K was given its bench of Central Administrative Tribunal, which in any other situation would have been lauded but its establishment at Jammu with no bench in Srinagar displeased many who were expecting symmetry of justice.

If any asymmetrical approach is followed in the establishment of new forums, tribunals etc. the legal fraternity of non-receiver would be upset, but the ultimate loss would be off the litigant whose suffering would multiply on unwanted travel of Jammu connecting Kashmir snake way road in pursuit of justice and would cost litigant more in agony and money, a prolonged wait which would further be stretched by distance. Hence what was far before remains far.

The principle of establishing tribunals and extending Central Acts is to impart timely adjudication, therefore, creating division of benches at both Jammu and Kashmir would be a viable solution instead of decorating one house while scavenging the other. Creating multiple benches of newly created forums would not only help in creating harmony apart from creating equal employment and opportunity but would also be environment friendly and a futuristic approach.

The principle of Atma Nirbhar, i.e. self-reliance shall be conceptualized in every industry and not just manufacturing, and the idea of division of benches would make the two hands equal and self-reliant; establishment of the separate benches is not only a clamour of J&K, but similar demands are even being made for cassation of Benches of the Hon’ble Supreme Court of India at Hyderabad, Chennai, Kolkata and Mumbai and was even proposed in the Law Commission report 229 of 2019.

The idea to make the litigant travel less for justice is subsumed in the legislature which is reflective in many Acts, for example, section 22C of the National Consumer Protection Act, 1986 proviso for circuit benches, hence what is clear is the intent of legislature behind incorporating such provisions is nothing but the ease of access to litigants.

The establishment process of these forums should, from inception be foresighted and shall be engineered on the principles of practicality and accessibility. The UT of Jammu & Kashmir which is being projected as future Investment State should from the beginning be well equipped to handle the grievances and dispute that might arise in future; hence those coming to Jammu and Kashmir should feel the ease and accessible justice and shall not be unnecessarily made shuttle between J and K.

On the establishment of CAT bench at Jammu, some politicians raised the issue with the Central Govt. but in the absence of any appropriate government in the State, the appeal by the mighty politician is as good as infructuous as the forum rests at Delhi, again a journey to long to travel for justice. The non-establishment of the separate benches also stands against the idea of abolishing Darbar move which again is seen by many as unnecessarily travel, expenditure and cause of delay in performing the duties as has been cast on executive and judiciary. Hence the futuristic, pragmatic and viable idea would be to develop parallel benches of the newly created forums to maintain a symmetrical Justice system.


The Authors Viqas Malik & Romaan Muneeb are Lawyers at the J&K High Court. The Authors can be reached at malikan[email protected]


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