The Jammu and Kashmir Reorganization Act, 2019 stands as it is, and by way of Section 95 provides for extension of 106 central laws to the newly created UT of J&K while dousing 153 erstwhile state laws and retaining 166 erstwhile laws.
The now extended central laws aspire uniformity in substantive and procedural law across the country. It also promises its people the access to rights and forums in parity with the rest of the countrymen. However, the tangible implementation by establishing the required tribunals, forums etc. is still a far reality. It be noted that for exercising the rights flowing from the freshly extended laws does not lay with the traditional Courts for their adjudication. For instance, amongst others, The Jammu and Kashmir Reorganization Act, 2019 extended central laws like Administrative Tribunal Act of 1985, Family Courts Act of 1984, Legal Services Authorities Act of 1987, Gram Nyayalayas Act of 2009, which necessitate the establishment of independent judicial bodies for their effective implementation. The newly extended laws provide for a composition or an organizational structure, which is different from its predecessor system and therefore would require systematic reorganization to keep the spirit of the central laws alive.
The establishment of forums would be a two-fold task. The first challenge would be “infrastructural” and second, “distribution”. 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 administration in establishing new forums. Leaning to one side can disquiet the stakeholders on the other side. The recently established bench of Central Administrative Tribunal at Jammu with no circuit bench in Kashmir displeased many who were expecting an equilibrium in the allocation.
If this asymmetrical approach is followed in the establishment of other forums, it would definitely upset the legal fraternity, but the ultimate loss would be that of the litigant whose sufferings would multiply on account of unwarranted travel to Jammu. Add to it, inflated litigation costs, boarding expenses, problems in communication, and other practical difficulties. Hence, what was far before remains far.
The only solution to ensure desired results would be to establish bench at both the divisions. Having multiple benches would ensure harmony and equality in terms of opportunity and employment, and would also be environment friendly as also futuristic.
The idea of Atmanirbhar i.e. self-reliant should be conceptualized in every sector. Having benches in both the divisions would make the two equal and self-reliant in terms of economic progress and legal rights. The demand for circuit benches is not a clamor only in J&K but similar demands are being made for cassation of benches of the Supreme Court at Hyderabad, Chennai, Kolkata and Mumbai. A similar recommendation was even advocated in the 229th report of the Law Commission in 2019. The idea to make the litigant travel as least as possible is subsumed in many legislations. For instance Section 22 C of the National Consumer Protection Act, 1986 provides for circuit benches.
The establishment process of Tribunals should, from the very inception be foresighted, and engineered on the principles of equality, practicality and accessibility. The UT of J&K, which is being projected as a future for investment, should from the very beginning be well equipped to handle grievances and disputes that may arise in future. Hence, those coming to Jammu and Kashmir should feel the ease in accessing justice, and not be unnecessarily made to shuttle between Jammu, and Kashmir.
With respect to the establishment of CAT bench at Jammu alone, some political parties raised the issue with New Delhi but in the absence of an elected government, the appeal by the political class was of little help. The non-establishment of the circuit bench also stands in the way of the idea to abolish “Darbar move” which is seen by many as an avoidable and unnecessarily wastage of time, energy and tax payers’ money. Hence, the futurist, pragmatic and viable idea would be to have benches in both the divisions and maintain a symmetrical Justice system.
Viqas Malik and Romaan Muneeb are lawyers at the J&K High Court