By: Aman Saraf
The legal framework regulating Jammu and Kashmir can in recent terms be adequately referred to as protean and erratic – and for good reason. Post the Constitutional Order 273 passed by the President declaring that Article 370 of the Constitution of India ceased to be operative (barring the applicability of the Constitutional provisions to Jammu and Kashmir), most extant laws of India began to apply to Jammu and Kashmir.
This was followed by the Jammu and Kashmir Reorganization Act, 2019 (“the Act”), converting the State of Jammu and Kashmir into two union territories – Union Territory of Jammu and Kashmir and the Union Territory of Ladakh. The entire body of law applying to these two territories was transformed by Section 95 of the Act read with the Fifth Schedule, that provided that “(1) All Central laws in Table-1 of the Fifth Schedule to this Act, on and from the appointed day, shall apply in the manner as provided therein, to the Union territory of Jammu and Kashmir and Union territory of Ladakh.”
Prior to the enactment of the Act, Jammu and Kashmir had its version of the Indian Penal Code (“IPC”), referred to as the ‘Ranbir Penal Code’. However, the Fifth Schedule repealed the Ranbir Penal Code and sought to apply the IPC by amending it to the extent of omitting the words “except the State of Jammu and Kashmir” in Section 1 of the IPC. Therefore, the amended Section 1 of the IPC now stands as “This Act shall be called the Indian Penal Code, and shall extend to the whole of India.” The Parliament deemed this omission to be appropriate to bring Jammu and Kashmir within the folds of the IPC.
Interestingly, though, the Act did not amend Section 18 of the IPC — whether by error, or design, is anyone’s guess. Section 18 defines ‘India’ and retains the definition prior to the 2019 changes — “India” means the territory of India excluding the State of Jammu and Kashmir. Thus, India as per IPC continues to exclude Jammu and Kashmir, irrespective of the amendment to Section 1.
In my opinion, the omission of amending this Section, while may be construed as hyper-technical, can have serious and far-reaching implications to the maintenance of law and order in Jammu and Kashmir. Of course, post the Act coming into force, ‘Jammu and Kashmir’ would now only mean the Union Territory of ‘Jammu and Kashmir’, as the State of Jammu and Kashmir no longer exists. Interpreting the provision in any other light would lead to an absurdity, as according to me, the intention of the legislature is not clear in the present scenario, as is set out below.
Repercussions and Consequences
Section 2 of the IPC states that every person would be liable for punishment under the IPC for every act for which he would be guilty within India. Keeping in mind the definition of India as displayed in Section 18, the territorial application of the IPC would continue to actively exclude Jammu and Kashmir from its intra-territorial jurisdiction.
It has already been held by the Telangana High Court in KRK Vara Prasad v. Union of India [1980 SCC OnLine AP 141] that the words in Article 1 of the Constitution that India is a Union of States comprising the territories of States and Union Territories among others cannot be imported into the definition of India under Section 18 IPC, which is a standalone provision that is constitutional. Therefore, seeking recourse of the definition of India in the Constitution to interpret Section 18 of IPC is not an option.
The interplay between Section 18 and Sections 3 and 4 of the IPC – which refer to its extraterritorial application – also assumes significance. Section 3 provides that if any Indian law provides for punishment of any act outside India, a person committing such an act outside India would be dealt with by the IPC as if the act had been committed within India. This indicates that an act committed in Jammu and Kashmir, which lies outside India as per Section 18, is only liable for punishment under IPC if an Indian law expressly mandates that the particular act committed outside India is nevertheless liable for punishment.
Most importantly, Section 4 provides that provisons of IPC would apply to commission of an “offence” by any citizen of India beyond India. Viewing this Section extremely technically, a “citizen of India” – while ordinarily obviously bringing those residing in Jammu and Kashmir within its ambit – is rendered ambiguous by the lack of amendment to Section 18.
Further, even if this ambiguity were overlooked, Section 4 would only cover acts committed by Indian Citizens in Jammu and Kashmir, which may to some extent cure the deficiency that Section 18 caused in Section 2 as explained above. However, a close reading of Sections 2, 3 and 4 will show that due to the stagnant definition of India in Section 18, there is a gap as to regulating offences committed by a foreigner in Jammu and Kashmir. Therefore, from this lens, a foreign citizen who commits a crime in Jammu and Kashmir would not be punishable under IPC, which is a grave loophole if my interpretation, in fact, holds true.
The definition of India in Section 18 would also have other unintended consequences. Section 75, which provides for enhanced punishment, would apply to only those convicted by a Court in India, thus excluding those convicted by Courts in Jammu and Kashmir. Further, going by Section 108A read with Section 18, any person in Jammu and Kashmir would not be liable for abetting an act outside India which would otherwise be an offence within India.
Even provisions that refer to import of counterfeit coins or a girl from a foreign country into India would not apply to the import of the same into Jammu and Kashmir. The definition of “local law” in Section 42 would not cover laws that are only enacted to apply to Jammu and Kashmir. Moreover, Section 121 speaks about waging war against the Government of India, which may not being within its scope the waging of war against the Council of Ministers headed by the Chief Minister of Jammu and Kashmir as set up by the Act.
However, per contra, it may be interpreted that Jammu and Kashmir being a Union Territory, the Government of Jammu and Kashmir would effectively translate to the Central Government. These are just a few examples of the huge repercussions that could ensue if the omission is not rectified.
Possible Solutions for the Gap
It may be argued that such an inadvertent omission by the Government cannot be read with a hyper-technical approach and can be adequately interpreted by Courts, especially since Section 97 of the 2019 Act provides Court with the power to construe laws in order to employ them in Jammu and Kashmir.
Firstly, it must be recognized that the IPC has always been considered an extremely exhaustive and specific Code, which goes as far as to define words like “Section” in Section 50 as “one of those portions of a Chapter of this Code which are distinguished by prefixed numeral figures.” So, a Code that has always intended to define every single nuance cannot be interpreted by Courts to the extent of altering a definition. Furthermore, the consequence of the Courts disregarding the lack of amendment to Section 18 would be akin to rewriting the Code by adding an offence applicable to acts by foreign citizens in Jammu and Kashmir.
Secondly, it must be noted that in the present scenario, there is no “gap” in the law. Section 18 clearly and unequivocally excludes Jammu and Kashmir. Courts cannot use their power of interpretation to alter an express definition, but can only strike it down should they conclude it violates constitutional provisions. It has been held by the Apex Court inGurudevdatta Vksss Maryadit & Ors v. State Of Maharashtra [(2001) 4 SCC 534] that “It is yet another rule of construction that when the words of the statute are clear, plain and unambiguous, then the Courts are bound to give effect to that meaning, irrespective of the consequences.” Section 18 is unambiguous in its exclusion of Jammu and Kashmir.
Thirdly, the Supreme Court held in Alkem Laboratories Ltd. v. State of Madhya Pradesh and Another[2019 SCC OnLine SC 1536] that: “It is a settled principle of statutory interpretation that any ambiguity in a penal statute has to be interpreted in favour of the accused.” Therefore, the principle of leniency as reiterated by a catena of judgments of the Apex Court must apply as well.
Fourthly, the principle of “casus omissus” – the power of courts to supply an obvious deficiency or omission of a provision – would not apply, for there is no “deficiency” or “omission” in any provision. As stated before, the definition of India is unequivocally clear in Section 18. Courts cannot use “casus omissus” to alter the express meaning provided by Parliament. This principle only applies to an obvious void in the law, not to a contradiction in the law.
Fifthly, it may be contended that the General Clauses Act, 1897 may be referred to in the event that there exists such a crucial ambiguity. However, in my opinion, the Act would not be of much assistance in the present scenario. While the General Clauses Act is indeed considered when there exists an ambiguity in any Act, it cannot be assumed that the definition of ‘India’ as in the IPC is an ambiguity for which the aid of the General Clauses Act can be taken.
In any case, when there is an express definition of India in the IPC that intentionally carries a rider by excluding Jammu and Kashmir, the definition of India in the General Clauses Act cannot be transposed and applied here. Applying the General Clauses Act to interpret the definition of “India” in the IPC would set a dangerous precedent of using the General Clauses Act to alter territorial jurisdiction of statutes. While the General Clauses Act has extensive provisions pertaining to the interpretation and procedures applicable to repealed enactments, it does not deal with the effect of an express shortcoming caused by a newly enacted law, especially when the legislative intent is extremely unclear.
Going one step further and purely for the sake of countering an argument that would in any case be shaky at best, even if it is considered that in the present case, there is a “substitution” (keeping in line with the Supreme Court judgment in Ramkanali Colliery of BCCL v. Workmen by Secy., Rashtriya Colliery Mazdoor Sangh that in such situations, the word “repeal” and “substitution” can be read together to have the same effect), Section 6 of the General Clauses Act clarifies that any such repeal cannot affect any rights or liabilities accrued. Therefore, an accused that fits the criteria mentioned in the Article can clearly argue that the omission by the legislature to exclude “except the State of Jammu and Kashmir” grants him a legal right of protection that cannot be deemed to be non-existent.
Lastly, Section 95 of the 2019 Act states that the Central Laws enlisted in the Fifth Schedule would only apply in the manner stated therein. The Legislature has made it abundantly clear that the only change they have sought to effect is the amendment of Section 1 of IPC and not Section 18. Certainly, Courts cannot substitute this express intention. Further, Section 96 of the 2019 Act actively gave the Central Government a chance to make any modifications or amendments within one year as was deemed fit to adapt the Central Laws to Jammu and Kashmir. Despite being given the express authority to do so, the Legislature has not amended Section 18 of IPC.
There is no doubt that the lack of amendment to Section 18 IPC is a technicality, but it is a technicality capable of causing unimagined consequences. It is the need of the hour that this contradiction is brought to the attention of the Legislature so as to exclude the words “excluding the State of Jammu and Kashmir”, along with other Sections in which these words exist. It is imperative that a mere technicality is not misused by any offender. Furthermore, in the absence of any amendment, there is an urgent need for at least the Judiciary to address the issue to provide clarity. In my opinion, erring on the side of caution would be the best possible approach to this conundrum.
(The article first appeared in the Proof of Guilt Blog.)