Guest Post: A Peculiar Problem Posed by the J&K Reorganisation?

(This is a guest post 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.”

The Problem

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 However, the Fifth Schedule repealed the Ranbir Penal Code and sought to apply the IPC by amending it to the extent of omitting the words “except the State of Jammu and Kashmir” in Section 1 of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 in Gurudevdatta 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.

Conclusion

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. 

Lalita Kumari, and Police Discretion at the Stage of Registering an FIR

Six year old Lalita Kumari went missing from near her house on the night of May 5, 2008. When she did not come back, her father filed a missing persons report. A week later he was told that his daughter had been abducted, and so he filed a complaint with Police Station Loni, Ghaziabad, Uttar Pradesh. The police did not even register a First Information Report under Section 154 of the Criminal Procedure Code of 1973, in turn compelling Bhola Kamat to write to the Senior Superintendent of Police, Ghaziabad. 

It was only on the direction of the Superintendent of Police, Ghaziabad, that FIR No. 484 was registered by Police Station Loni on 06.06.2008, under Sections 363, 366, 506, and 120-B of the Indian Penal Code. Things did not end here. The police refused to carry out a proper investigation, as per Kamat, unless he paid up. This led to Bhola Kamat invoking the extraordinary jurisdiction of the Supreme Court and file a habeas corpus petition to produce his missing child. This petition was registered as Lalita Kumari v. Government of Uttar Pradesh & Others [W.P. (Crl.) 68 of 2008]. 

The Five-Year Journey of Lalita Kumari

The records of this case do not clearly reflect what happened in respect of the main plea seeking production of Lalita Kumari. Instead, right from the outset, the focus of the proceedings appears to have become the purported inaction of the local police in registering the case. On the first date itself, the Bench of Justices G.S. Singhvi and B.N. Agrawal noted that: 

"[I]t is a matter of experience of one of us ... that in spite of law laid down by this Court, the police authorities concerned do not register FIRs unless some direction is given by the Chief Judicial Magistrate or the High Court or this Court. ... On the other hand, there are innumerable cases that where the complainant is a practical person, FIRs are registered immediately, copies thereof are made over to the complainant on the same day, investigation proceeds with supersonic jet speed ... "

This apparent class-divide prompting the workings of the criminal process compelled the Bench to observe that it was "high time to give directions" to the governments to make police accountable for not only registering FIRs but also handing over copies, and where it was not being done, then to hold the errant officials accountable.

While it took some time to get responses from all states and union territories, very early on it became clear to the bench that it had, unwittingly almost, touched upon an arena of several contradictory views expressed in earlier opinions. There certainly was a line of judgments which implored prompt registration of FIRs where information disclosed commission of cognizable offences and sought to exclude any discretion in this matter with the police. This, however, coexisted with judgments which called upon the police to tread cautiously and make sufficient inquiries because registering an FIR, as per this view, was a critical stage that ought not to be triggered lightly. 

As a result, Lalita Kumari's petition first went before a Bench of Three Justices and remained there for almost four years. On 27.02.2012, this bench of Three Justices concluded that the conflict of opinion on the issue was such (both, in terms of precedent as well as the views taken by all the States and Union Territories) that it would be best for a Constitution Bench to settle the matter once and for all. The outcome of this exercise the decision reported as (2014) 2 SCC 1, titled Lalita Kumari v. Government of Uttar Pradesh & Others ["Lalita Kumari"]. From a criminal process standpoint, it is arguably one of the most important decisions over the past decade, and it is credited with having held that a police officer must register an FIR when information discloses the commission of a cognizable offence.

Critiquing the Constitution Bench Judgment

That the issue of non-registration of FIRs is still very much a live one since Lalita Kumari was decided is a well-known fact. In no small measure is this attributable to the class divide that the Bench had taken note of in its very first order — it is usually the cases filed by the haves that are resolved at a supersonic jet speed, while those of the have-nots continue to be neglected. Given this institutional malaise, hardly any significant critical engagement has happened with what the judgment in Lalita Kumari itself did. It is unacceptably simplistic to conclude that Lalita Kumari has held that FIRs must be registered and that it does not happen is because of rogue elements in the force. 

Instead, I argue that Lalita Kumari actually failed to discharge its mandate of clarifying the law and, thus, has also contributed to the current state of affairs. While the Bench set out to resolve contradictory views, what it ended up doing was to place that contradiction at the very heart of the decision, and complicated things further. [Earlier posts on interpreting Section 154 are here, and here]

As a starting point, let us extract the complete paragraph from the Constitution Bench judgment which is supposed to lay down the law:

In view of the aforesaid discussion, we hold:

i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.

ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not. 

iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further. 

iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence. 

v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. 

vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under: 

a) Matrimonial disputes/ family disputes 

b) Commercial offences 

c) Medical negligence cases 

d) Corruption cases 

e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay. 

The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry. 

vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry [Note: this was clarified to read 21 days by a subsequent order in the matter]. 

viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above.

Reading this paragraph in full makes it clear that there is no unequivocal directive being issued that the police must register FIRs. The judgment only held that police must register where information discloses a cognizable offence, and this one word changes everything. In affirming that FIRs need only be lodged if police find that a cognizable offence is disclosed, what Lalita Kumari does is unequivocally accept that there is clear discretion and application of mind being exercised by the police at this stage. FIRs are, therefore, matters of moment and not mere administrative exercises of power. 

Having recognised, albeit indirectly, that registration of FIR is an exercise of police discretion, it fell to the Court to clarify the scope and extent of the same. This is what the subsequent paragraphs try to do. A preliminary inquiry may be conducted where the information does not disclose a cognizable offence, but this does not extend to verifying the veracity of the allegations, rather it is "only to ascertain whether the information reveals a cognizable offence" and must be done promptly. 

By saying the same thing through a slightly different combination of words, the Court does not manage to offer any clarity on the issue. How will the police conduct this inquiry all the while staying clear of going into the merits? Can they call for documents or summon persons to question them? Can potential accused persons be called to the station as well? Since there is no clear recognition of such preliminary inquiries within the Criminal Procedure Code, what legal status will any such requests for documents or oral clarifications carry? These are only some necessary questions which arose once the Court affirmed the practice of preliminary inquiries, which continue to pose troubling questions till today.

In a judgment focused upon police discretion in the context of registering FIRs, the Court paid hardly any attention to issues of discretion that went beyond the mere registration of the FIR and touched upon the contents of such documents. Specifically, on the offences themselves that are disclosed. 

Let me explain. There is a gap between information which a layperson brings to the police and the "First Information Report" which is born as a result of that interaction. This transformative exercise is, in many cases, not purely administrative because the informant will often not speak the language of the penal code. It will fall to the police to figure out which offences are made out, and view that information from the lens of mens rea and actus reus. Often, it will also fall to the police to decide which offences should be picked where the information discloses commission of both generic and special crimes. 

These are not academic issues but carry significant liberty-related consequences, for the same narrative may not only trigger both cognizable and non-cognizable offences, but also offences where bail is a matter of right and others where no such right exists. All these aspects are also an element of discretion vested with the police officer, and required discussion, if not regulation, by the Court in Lalita Kumari.  After all, the Court itself had framed the issue as requiring police to identify if cognizable offences are disclosed. Yet, these aspects of discretion wielded by police went entirely unnoticed.   

Conclusion

Lalita Kumari ultimately failed to deliver on its initial promise. Legally, it did not clarify much. What it did very well was to prolong the status quo and keep all stakeholders happy. Victims are told that police are duty-bound to register FIRs for cognizable offences, while police are told that they are duty-bound to register cases if the information they get discloses the commission of cognizable offences. For good measure, failure to register cases could attract action, which again only continued status quo. In having taken up the issue of police discretion while registering cases, the Court had the perfect opportunity to take a closer look at the role played by police in framing the case and invoking offences at this initial stage of the process. It did not even recognise the significance of this power wielded by police officers, let alone meaningfully engage with it. 

The exercise of discretion by police officers at Loni, which caused Bhola Kamat to run from pillar to post to get a case lodged for his abducted daughter, came out relatively untouched after the long journey that the Lalita Kumari petition had in the Supreme Court. It remains the principal reason why the police can refuse to register FIRs outright. What has changed, though, is that where victims and police would have earlier cited different precedent, today Lalita Kumari gives the answers for both sides in the room, by not really answering anything at all.