Srinagar: Laws are amended or repealed by legislature in a democratic set up. But the Bharatiya Janata Party (BJP)-led Central government has amended or repealed more than 200 laws applicable to the Union Territory of Jammu and Kashmir (J&K) through executive orders in the last one year, citing powers vested with it under the J&K Reorganisation Act.
The drastic changes effected through this route have raised questions on whether the scope of the power conferred upon the Centre is limited to facilitating application of statutes to the Union Territory of J&K or it can stretch them to any extent at its will. The statutory power of the Centre to do so has been challenged in J&K high court on the grounds that it “suffers from the vice of excessive delegation”.
Legal challenge
Advocate Hanan Moumin, through his counsel Taha Khalil, has filed a petition in the J&K high court, challenging section 96 of the Jammu & Kashmir Reorganisation Act.
The petitioner contended that the provision “suffers from the vice of excessive delegation as the words ‘amendment’ and ‘repeal’ have been incorporated in the section implying the designation and devolvement of essential legislative functions upon executive limb of the government.”
“The power to amend and/or repeal any existing law is a policy decision which, in a democratic set-up, is only exercised through a body of elected representatives, therefore, the vesting of powers to amend and/or repeal laws with the executive authorities is a bizarre precedence of usurping the power, authority and jurisdiction of legislative assembly of the Union Territory of Jammu and Kashmir,” reads the petition.
The petitioner cited the Supreme Court’s landmark verdict in the Delhi Laws Act case, in which it was held that the legislature cannot delegate its essential functions.
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The petitioner also contended that the power of modification and adaptation of laws for facilitating their application to Union Territories is confined to the extent of introduction of only peripheral or insubstantial changes, which keeps the inbuilt policy, essence and substance of the enactment intact. “The power of central government cannot be construed to such an extent whereby it can change the material provisions of the laws,” read the petition.
He further submitted that this position has been fortified by the authoritative judgment of the apex court in the Brij Sunder Kapoor vs Additional District Judge case.
Talking to The Wire, advocate Tanveer Ahmed Mir, who is appearing to argue in the case, said the Centre cannot make substantive amendments to the laws through executive orders. “In the name of adaptation and modification, you cannot amend or change laws to introduce new policies and decisions. For the purpose of changing substantive law, you need to have debate and discussions on the floor of the parliament or assembly,” he said.
He said the Centre cannot usurp powers of the legislature of Jammu and Kashmir Union Territory. “Once you recognise in the J&K Reorganisation Act that the Union Territory will have a legislature, you cannot usurp the powers of the legislature of the UT. The J&K Reorganisation Act does not say that this will be a place without a legislature,” he said.
Under section 96 of the J&K Reorganisation Act, the Centre has powers to adapt or modify laws for facilitating their application to UTs, if it feels it is necessary or expedient to do so. “For the purpose of facilitating the application in relation to the successor UTs, 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,” reads the provision.
Going by statutory obligations, the Centre exercised this power for the period between October 31, 2019 and October 30, 2020.
Indian security personnel stand guard along a deserted street during restrictions in Jammu, August 5, 2019. Photo: Reuters/Mukesh Gupta
Eight orders issued for J&K UT
The Central government has amended state and central laws through eight executive orders issued after the J&K Union Territory came into existence.
Of them, five orders deal with the adaptation of state laws and three with Central laws.
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The perusal of the orders issued by the Ministry of Home Affairs laid bare that little or insignificant changes have been made in Central laws applicable to J&K while massive changes have been introduced in state laws. The new policies and decisions introduced through these changes include domicile job law, property tax, district development councils etc. In the latest such order issued on March 26, ten land laws applicable to J&K were repealed.
Meanwhile, the Centre has issued four adaptation orders under the Reorganisation law for Ladakh in the last one year. Unlike J&K, no significant changes have been made for the Union Territory in the adaptation orders. Interestingly, domicile job law and land laws, which have been introduced in J&K, have not been made applicable to Ladakh.