• Malik and Romaan Law Offices

Self Reliant Kashmir, Legally

Updated: Aug 5, 2020

Though the Law which abrogated a Law to introduce a new Law is itself under Judicial Scrutinyto test the correctness of Law and is presently 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 Actsto the newly created UT of J&K while extinguishing 153erstwhile Acts passed by the respective State Legislature and further securing 166 erstwhile Acts.

The extension of these Central Acts, which aims at uniformity in Law across the country and was extended to J&K with an idea to provide its people access to laws in form of rights as was being extended to the rest of the country-men. The extension of Central Actswas proposed on 9th of August 2019 but the tangible implementation in forms of establishing requisite forums, Tribunals etc. is still a far reality. Many of the Central Acts extended to J&K by virtue of The Jammu and Kashmir Reorganization Act, 2019 have 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 Acts have a separate composition or organizational structure which differs from the erstwhile Acts and hence needs systematic reorganization in order to keep the these Central Acts alive and effective like the rest of the country.

The establishment itself would be a two fold task, First would be the infrastructural challenge and Second would be the distribution, Hence would would require consistency in the distribution to keep the 2 brothers happy i.e Jammu and Kashmir, an old afghan proverb (Brothers love when equal) which fits the situation and should be the weighing scale for the state before 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 own bench of Central Administrative Tribunal, which in any other situation would have been lauded but its establishment at Jammu with no bench in Srinagar displeasured many who were expecting symmetry of Justice.

If any asymmetrical approach is followed in establishment of new forums, tribunals etc. the ultimate loss would be off the litigant though the legal fraternity of the non-receiver end would also sufferer but the repeated and unwanted travel of Jammu connecting Kashmir snakeway road in pursuit of justice would definitely cost Litigant more in agony and money, a prolonged wait which would further be stretched by distance. Hence what was far before still remains far.

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

The principle of Atmanirbahar i.e self reliance shall be conceptualized in every industry and not just manufacturing and the idea of division of benches would make the 2 parts equal and self reliant; the demand of separate bench is not only an issue of J&K but similar demandsare even made for cassation of Benches of the Hon’ble Supreme Court of India Hyderabad, Chennai, Kolkata and Mumbai and was even proposed in the Law Commission report 229 of 2019.

Idea to make the litigant travel less for justice has been on the back of the legislature through out 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 ease of access to litigants.

The establishment process of these forums should from inception be foresighted and on the principles of practicality and ease of accessibility. UT of J&K which is being projected as future Investment State should from 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 Srinagar the appeal by the mighty politician is as good as infructuous as the forum vests with 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 casted on executive and judiciary. Hence the futuristic and viable idea would be to develop simultaneous benches of the newly created establishment to maintain a symmetrical Justice.

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