by Nitesh Mishra
The Jammu & Kashmir Reorganisation Act, 2019 (“the Act”) was enacted and enforced by the Parliament of India, in August 2019. This Act has demoted the previously existing state of Jammu and Kashmir (“J&K”) to two Union Territories: one of J&K, and the other of Ladakh, after the abrogation of Article 370 of the Constitution.
Amidst the myriad opinions around this decision of the Parliament, I argue that it shall be appropriate to theorise the Act, in light of the existing jurisprudential theories. When the laws of a place get significantly overhauled, it becomes pertinent to analyse their jurisprudential nature, especially when the change comes amidst contradictory claims and interests.
In the present article, I intend to argue that the Act is a good law only in accordance with positivist notions. Furthermore, the Act should have been made considering sociological school as well, owing to the peculiar nature of J&K. An evolving theory of socio-legal positivism can be realistically adopted by Parliament and the Courts while taking future decisions on the matter.
Legal positivism aims at separating the law from non-law. This school is of the notion that the existence of a law or legal system, is not dependent upon the merits or demerits of the content of the law. Amongst the positivists, Hart’s conception is hailed to be the most revolutionary.
Hart has stated that acceptance of law is primary, while fear of law in ancillary, unlike English legal theorist, John Austin. He says that a society is governed by social rules, which have an internal aspect of acceptance attached to it and are different from social habits.
Hart conceptualises that a legal system is comprised of two kinds of rules of obligation: the primary rules, which govern the conduct of the society, and secondly, the secondary rule of obligation, which provides for recognition, alteration and adjudication of the primary rules. Amongst the secondary rules, the ‘rule of recognition’ is the most crucial, as it differentiates law from non-law.
Hart seems to inch towards the sociological school of jurisprudence, as he considers the acceptance by people while identifying law. However, he clarifies that the acceptance that he is talking about is of the officials who enforce the law, and not of people of the society in general. The people of the society merely ought to follow the law, irrespective of them accepting it or not. Furthermore, Hart has made it explicitly clear that the morality of law is not a consideration for him while identifying law from non-law.
In light of the legal positivist theory of Hart, the present Act stands as a valid law. It derives its recognition from the Constitution, which is the rule of recognition in India, as the Presidential Order had amended Article 367, for the purpose of bringing about an amendment to Article 370, and eventually, the present Act, reportedly. The officials, constituting of the Parliament and the Executives in the UTs of J&K and Ladakh, accept the law and have enforced it accordingly. The acceptance of the law by people and the morality of law is not a concern as per Hart, and hence, these arguments also do not stand, to his theory of legal positivism.
Hence, by mere virtue of being recognised by the Constitution and being accepted by the officials tasked with enforcing the law, the present Act stands valid as per Hart’s theory. Hart has skillfully recused himself from engaging with either the content of law (that is, its morality) or with the social impact and acceptance of the law. However, the historic significance of the present Act and its widescale impact on the lives of Kashmiris make it essential for us to delve into the analysing the validity of the law, from their perspective.
The term ‘sociological jurisprudence’ has been coined by Roscoe Pound, and this school of jurisprudence focuses upon the actual effects of laws and legal institutions upon the society, and the influence of the societal phenomena on the substantive and procedural aspects of law, rather than separating law from non-law.
Pound’s contribution to the sociological school lies in his discussion of two concepts: (a) legal interests, and (b) jural postulates. According to Pound, there are three categories of legal interests, which are pre-legal ideas and often laws are made for securing these interests. These are individual, public and social interests. He does not press upon a strict distinction between these interests and they often overlap with each other.
Pound’s theory is based upon the fact that in a society, at any given time, there shall be conflicts between the legal interests, and hence, prioritisation and balancing of the interest is required for resolution, which is done by the means of jural postulates.
Jural postulates presuppose legal reasoning about various rights and liabilities and provide what the people may reasonably be able to assume in a legal society, which may vary across and within legal systems. Finally, Pound states that the balancing of these interests requires ‘social engineering’, where the role of law is to provide as much as the society reasonably can, to all individuals.
I argue that the sociological school of jurisprudence would have been better suited for framing any legislation, with regard to the erstwhile State of J&K, owing to its peculiar nature. It concerns itself with the development and interaction of law with society, rather than merely analysing law as it exists and/or superimposing it upon a society, unlike legal positivists, who turn a blind eye to the dynamism and effect of the law on society.
J&K had a distinct ‘Instrument of Accession’, by means of which the State had agreed to become a part of India, disparate from any other state. Hence, the people of J&K had reasonable reasons to assume a social interest regarding their special status, within India. These interests pre-date even the law made with that regard, that is Article 370 of the Constitution, and hence, these legal interests of Kashmiris stand valid, as per Pound’s theory.
While the rest of India, generally, had a contradictory interest, regarding the special status of the erstwhile State, the Parliament ought to have enacted laws, which balanced the two conflicting interests, rather than imposing one interest over another.
The present Act entirely ignored the legal interests of Kashmiris as expressed by them, and has been enforced, without any due regard to social perception to the law. The legal interests of the Kashmiris of retaining their special status, which essentially included the enhanced powers of the state government of erstwhile Jammu and Kashmir, has been effectively nullified by virtue of the present Act. Thus, the Parliament has essentially failed in proper ‘social engineering’. Law is supposed to emanate from society, rather than be superimposed upon them.
Pound has also stated that while deciding between two conflicting interests, a judge with trained legal intuition can be trusted to reach the best resolution. The case challenging the constitutionality of the Act is pending in the Supreme Court, at present. It remains to be seen whether the judges balance the conflicting interests.
As discussed, legal positivism does not consider the effect of the law on society, while the sociological school does not contribute significantly in the identification of law from non-law. Hence, an evolving approach to law has been socio-legal positivism, which is the synthesis of the two schools of jurisprudence, and fundamentally accepts the social nature of law.
The theory retains the tenets of Hart’s positivism, via including within its fold, the primary and secondary rules of obligation. However, it rejects that the laws need to be obeyed by the people and accepted by officials. Its greatest strength lies in the fact that it presupposes very little about the law, and leaves it to conventional wisdom and empirical data of laws’ interaction with the society, for further analysis. This leaves a scope of flexibility in the law, which is of paramount importance if law indeed is a human creation.
In India, the Constitution holds a distinct significance. The Preamble states that the Constitution has been adopted by the ‘people of India’. Hence, it cannot be said to be a superimposed law. The Constitution is the ultimate rule of recognition for laws in India, and the Parliament is empowered to make laws, accordingly. Hence, the Parliament had all the powers to enact the present Act.
However, it was pertinent for the Parliament to leave some scope of flexibility in the Act, so as to allow it freely interact with the people of the erstwhile State of J&K. The absolutistic nature of the Act, where the effect that the law has on the people is not considered, is problematic. By the application of socio-legal positivism theory, such flexibility could be introduced in the Act, thereby making the transition easier.
The plethora of changes which the Act has brought about, ought to have been brought in a more phased manner, rather than forcing the Kashmiris into submission to the superimposed law, by the widespread curtailment of their liberties. The Parliament ought to have provided some breathing space to the Kashmiris for coming to terms with the changing realities, between these significant overhauls of their laws. For instance, the property laws in Kashmir need not have been immediately changed to allow the rest of India to own property in the Valley.
The Act has caused widespread discontent and apprehensions amongst the Kashmiris that their distinct culture is on the verge of vanishing from the Valley. However, such a phased approach, considering the social impact of laws, would have allowed the distinct Kashmiri culture to be eventually integrated with the rest of India.
In enacting the present Act, the Parliament ignored the social effect that it shall have upon the people who are primarily subjected to the law. The social interaction between the law and the people of Kashmir cannot happen in a controlled environment. The Act has a nature of being superimposed on the people of Kashmir. While the law stands as valid according to the legal positivistic theory, it falters massively according to the sociological jurists. A middle path approach of socio-legal positivism would have been a better way to go for the Parliament while enacting the Act, and perhaps, for future amendments to it.
Views are personal.
Image Credits: Al Jazeera
ABOUT THE AUTHOR
Nitesh Mishra is a third year student at National Law University Delhi.
 Roscoe Pound, The Scope and Purpose of Sociological Jurisprudence, 24(8) Harvard Law Review 591 (1911); Roscoe Pound, A Survey of Social Interests, 57 Harvard Law review 99 (1943).
 Roscoe Pound, The Role of the Will in Law, 68 Harvard Law Review 19 (1954).
 Brian Z. Tamanaha, Socio-Legal Positivism and a General Jurisprudence, 21(1) Oxford Journal of Legal Studies 1 (2001).