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<\/a>\u00a0<\/span><\/div>\nOn 26th<\/sup> October, the After explaining the procedure adopted We shall conclude our discussion by The procedure adopted for notifying the Through the Adaptation Order <\/span>notified<\/span><\/a><\/span> by the Union Home Ministry, multiple This has led to an uproar, and politicians It is pertinent to note here that in In both of these Adaptation Orders, it has To recall, the Reorganization Act has “For the purpose of facilitating The Fifth Schedule referred to above This power is available for a period of An important question arises here with The scope and ambit of the power of \u2018adaptation From a plain reading of Section 96, it The presence of a one-year time limit This also implies that policy changes Keeping in mind the wording of Section The Adaptation Orders referred to above There are hence strong grounds to The As per the Reorganization Act, the Section 58 makes <\/span>Article 239<\/span><\/a><\/span> Unlike Ladakh, Article 240 has not been However, the Government may This may be used as a justification by Continued Imposition of President\u2019s Keeping this possible justification Article 356<\/span><\/a><\/span> The rationale behind the Central This implies that for all matters
\nMinistry of Home Affairs <\/span>notified<\/span><\/a><\/span> the Jammu and Kashmir Reorganization
\n(Adaptation of Central Laws) Third Order, 2020 (\u2018the Adaptation Order<\/b>\u2019).
\nThis executive order has made wide-ranging amendments to the land laws applicable
\nin Jammu & Kashmir. These amendments are applicable only in the Union
\nTerritory of Jammu & Kashmir, and are not applicable in the Union Territory
\nof Ladakh. <\/span><\/p>\n
\nfor amending these land laws, we shall discuss the constitutional validity of
\nthe Adaptation Order notified by the Home Ministry. <\/span><\/p>\n
\nexamining how the conversion of the State of Jammu & Kashmir into 2 Union
\nTerritories, along with the continued imposition of President\u2019s Rule, has given
\nthe Central Government a justification for making legislative policy changes
\nwithout any prior consultation. <\/span><\/p>\n
\nAdaptation Order <\/span><\/b><\/p>\n
\nland laws that were applicable in the erstwhile State of Jammu & Kashmir
\nhave either been repealed or amended. 12 land laws have been repealed, while 26
\nhave been amended. After these amendments, outsiders (i.e. those who are not
\ndomicile residents of Jammu & Kashmir) can acquire both agricultural as
\nwell as non-agricultural land in the Union Territory. <\/span><\/p>\n
\nsuch as Omar Abdullah have contended that allowing outsiders to purchase land
\nwill further disempower the local population, and may alter the demography of
\nKashmir in the long run. It was also argued that such far-reaching changes to
\nland laws were made without any prior stakeholder consultation. <\/span><\/p>\n
\nApril, a similar \u2018Adaptation Order\u2019 was notified, to enact a new domicile
\npolicy for Jammu & Kashmir. This was done by amending the <\/span>Jammu & Kashmir Civil
\nServices (Decentralization and Recruitment) Act, 2010<\/span><\/a><\/span> \u2013 which prescribed the conditions that
\nmust be satisfied for claiming the status of a \u2018domicile resident\u2019 of Jammu
\n& Kashmir. Just like the land law amendments, even the domicile policy was
\ncriticized on the ground that it was notified without any prior consultation or
\ndiscussion. <\/span><\/p>\n
\nbeen stated that the Order derives legal force by virtue of Section 96<\/u>
\nof the <\/span>Jammu and Kashmir Reorganization
\nAct, 2019<\/span><\/a><\/span> (\u2018the
\nReorganization Act<\/b>\u2019). <\/span><\/p>\n
\nbifurcated the erstwhile State of Jammu and Kashmir into two separate Union
\nTerritories of Jammu & Kashmir and Ladakh. This statute was introduced simultaneously
\nwith the <\/span>Presidential Order<\/span><\/a><\/span> and the <\/span>Statutory Resolution<\/span><\/a><\/span> which amended Article 370 of the
\nIndian Constitution, on 5th<\/sup> August 2019. To understand the nature
\nand purpose of the Adaptation Order, it is instructive to refer to Section 96
\nof the Reorganization Act. Section 96 falls under Part XIV of the
\nReorganization Act, which consists of \u201cLegal and miscellaneous provisions\u201d. It
\nstates as follows: <\/span><\/p>\n
\nthe application in relation to the successor Union Territories<\/i><\/b>, of
\nany law made before the appointed day, as detailed in Fifth Schedule, the
\nCentral Government may, before the expiration of one year from that day, by
\norder, make such adaptations and modifications<\/b> of the law, whether by
\nway of repeal or amendment, as may be necessary or expedient<\/b>, and
\nthereupon every such law shall have effect subject to the adaptations and
\nmodifications so made until altered, repealed or amended by a competent
\nLegislature or other competent authority”<\/i>(emphasis supplied). <\/p><\/blockquote>\n
\nconsists of the Central and State Laws that are applicable in the newly formed
\nUnion Territories of Jammu & Kashmir and Ladakh. Section 96 confers the
\nCentral Government with the power to amend or repeal any Central or State law
\napplicable in the Union Territories, if it considers it to be \u2018necessary and
\nexpedient\u2019. <\/span><\/p>\n
\none year from the appointed date i.e. the date on which the Reorganization Act
\ncame into force – which was 31st<\/sup> October 2019. Hence, the Government
\ncan resort to Section 96 only upto 31st<\/sup> October 2020. Now, such a
\nprovision enabling the adaptation and modification of existing laws by the
\nExecutive is not unique to this Reorganization Act. A similar provision is also
\npresent in Section 101 of the <\/span>Andhra Pradesh Reorganization
\nAct, 2014<\/span><\/a><\/span>, which
\nconferred the government with powers of adaptation and modification \u2013 for a
\nperiod of 2 years. <\/span><\/p>\n
\nrespect to the scope and ambit of the power of \u2018adaptation and modification\u2019
\nconferred by Section 96. The question that arises here is whether the power
\nconferred by Section 96 is limited to making \u2018adaptations and modifications\u2019 solely
\nfor purposes of procedural and administrative efficiency, or whether it also extends
\nto making policy alterations \u2013 such as allowing outsiders to purchase land, or enacting
\na new domicile policy. <\/span><\/p>\n
\nand modification<\/i>\u2019<\/span><\/b><\/p>\n
\nis evident that the purpose of this provision is to adapt or modify any law for
\nthe purpose of facilitating its application to the successor Union Territories,
\nif the Central Government feels that it is necessary and expedient to do so. This
\nis further qualified by a one-year time limit, which means that adaptations and
\nmodifications can be made for a temporary period of one year – from the date on
\nwhich the Reorganization Act has come into force. <\/span><\/p>\n
\nand the words \u201cfor the purpose of facilitating the application in relation
\nto the successor Union Territories, of any law<\/i>\u201d indicates that such
\nadaptations and modifications made through executive orders can be undertaken only
\nfor procedural and administrative matters connected with the bifurcation and
\nthe conversion of the erstwhile State into 2 Union Territories. \u00a0<\/span><\/span><\/p>\n
\nmade through executive orders which are unconnected to this process of
\nfacilitating the application of existing laws shall be beyond the ambit of
\nSection 96. This interpretation is also in line with the Supreme Court\u2019s
\ndecision in the landmark <\/span>In Re: The Delhi Laws Act<\/span><\/i><\/a><\/span> (1951) case, where it was held that
\nthe Legislature cannot delegate matters of essential legislative policy to the
\nExecutive. <\/span><\/p>\n
\n96 and the In Re: Delhi Laws Act<\/i> decision, it can be argued that Section
\n96 cannot be used to make any substantive policy changes by amending existing
\nlaws; and it is restricted to matters of procedure and administration that are necessary
\nfor facilitating the smooth application of existing laws to the newly
\nconstituted Union Territories. <\/span><\/p>\n
\nhave amended existing laws to permit outsiders to purchase land, and has also framed
\na new domicile policy for Jammu & Kashmir. These are clearly changes that
\nfall within the realm of legislative policy, and are not simple modifications that
\nhave been made for procedural and administrative convenience. As they are substantive
\npolicy changes, it can be argued that they do not fall within the ambit of the
\npower conferred by Section 96 \u2013 and should hence be struck down for going beyond
\nwhat is permitted by the Reorganization Act. <\/span><\/p>\n
\nchallenge the Adaptation Orders in the Jammu & Kashmir High Court or the
\nSupreme Court. Let us now examine certain constitutional provisions that the
\nCentral Government may invoke, in response to a possible legal challenge. <\/span><\/p>\n
\nCentral Government\u2019s possible line of defence <\/span><\/b><\/p>\n
\nUnion Territory of Ladakh does not have a Legislature, and is to be administered
\nby a Lieutenant Governor, acting on behalf of the President. On the other hand,
\nthe Union Territory of Jammu & Kashmir follows a model similar to Pondicherry
\nand Delhi. Along with a Lieutenant Governor, Jammu & Kashmir is envisaged
\nto have a Legislature and a Council of Ministers headed by the Chief Minister. <\/span><\/p>\n
\nand Article 240<\/a> of the
\nConstitution applicable to the Union Territory of Ladakh. Article 240 states
\nthat for specified Union Territories (such as Pondicherry and now Ladakh), any
\nRegulation made by the President which amends or repeals any applicable law
\nshall have the same force as an Act of Parliament. Hence, with respect to the
\nUnion Territory of Ladakh, all executive orders issued by the Central Government
\nshall be equivalent to a parliamentary law. However, the position is
\nsignificantly different for the Union Territory of Jammu & Kashmir. <\/span><\/p>\n
\nmade directly applicable to the Union Territory of Jammu & Kashmir. This is
\nby virtue of Section 13 of the Reorganization Act. Section 13 only states that the
\nprovisions contained in <\/span>Article 239A<\/span><\/a><\/span> of the Constitution as applicable to
\nPondicherry shall also be applicable to the Union Territory of J& K. <\/span><\/p>\n
\nnevertheless invoke the proviso to Article 240(1) as a defence. The proviso to
\nArticle 240(1) states that if a body is created to function as the Legislature
\nfor the Union Territories enlisted under Article 239A (which now includes
\nPondicherry and Jammu & Kashmir), then until the first meeting of the Legislature,
\nthe Central Government may make Regulations that amend or repeal the existing
\nlaws that are applicable in the Union Territory. Also, as per Article 240(2), all
\nsuch regulations made before the first meeting of the Legislature shall have
\nthe same force as a statute passed by Parliament. <\/span><\/p>\n
\nthe Central Government in a possible constitutional challenge, as the Union
\nTerritory of Jammu and Kashmir is currently under President\u2019s rule, and no
\nLegislative Assembly has been created after the passage of the Reorganization
\nAct. It may contend that even if the Adaptation Order is beyond the ambit of
\nSection 96 of the Reorganization Act, it is saved by Article 239A and Article
\n240 \u2013 as Jammu & Kashmir does not have a Legislature as of now. \u00a0<\/span><\/span><\/p>\n
\nrule – A larger constitutional question<\/span><\/b><\/p>\n
\naside, there is a larger constitutional question that the Court must address. As
\nthe Union Territory of Jammu and Kashmir is envisaged to have a Legislative
\nAssembly, Article 239A read with the proviso to Article 240(1) permits the
\nissuance of executive orders by the Central Government only until the first
\nmeeting of the Legislative Assembly, after fresh elections are held. Jammu
\n& Kashmir was under President\u2019s rule prior to its conversion to a Union
\nTerritory, and has continued to remain in President\u2019s rule even after 31st<\/sup>
\nOctober 2019 (when the Reorganization Act came into force). <\/span><\/p>\n
\nof the Indian Constitution has continued to hold fort in Jammu & Kashmir
\nsince 19th<\/sup> December 2018, and there is no specific information on
\nany proposal to have fresh elections in the near future. The continued
\nimposition of President\u2019s rule and the conversion of the State into 2 Union
\nTerritories has given the Central Government a carte blanche<\/i> to
\nindiscriminately take advantage of the statutory and constitutional provisions
\nreferred to above, and rule by executive decree. <\/span><\/p>\n
\nGovernment wanting this unbridled power can be highlighted by referring to the
\nSupreme Court\u2019s decision in <\/span>NCT of Delhi v. Union of India<\/span><\/i><\/a><\/span>. In its decision, the Supreme Court held
\nthat although Delhi is a Union Territory and akin to a quasi-State, the actions
\nof an elected government and an elected Legislature shall bind the Lieutenant
\nGovernor – for all matters that are within its legislative domain. Although
\nthis decision was based on an interpretation of Article <\/span>239AA<\/span><\/a><\/span>
\nof the Constitution, it applies squarely to Jammu & Kashmir \u2013 as akin to
\nDelhi, Jammu & Kashmir is envisaged to have a Legislature despite being a
\nUnion Territory. <\/span><\/p>\n
\nwithin its legislative domain, the Legislature of the Union Territory of Jammu &
\nKashmir shall stand supreme, and bind the Lieutenant Governor and the Central
\nGovernment. Hence, if fresh elections had been held and a Legislative Assembly
\nhad been constituted, the Home Ministry could not have indiscriminately taken
\nthe benefit of Article 239A, Article 240, and Section 96 of the Reorganization
\nAct – to bring about radical policy changes relating to land and domicile. \u00a0<\/span><\/span><\/p>\n