Justice (Retd.) G D Sharma
pallav5354@gmail.com
When on October 26, 1947, Maharaja Hari Singh acceded to the Union of India, the total area of the erstwhile State of Jammu and Kashmir was approximately 2,22,000 to 2,23,000 square kilometers. It’s total population according to 1931 Census was 31.21 lakh (approximately). The break up shows that in Jammu Division four districts were Hindu dominated whereas, remaining Mirpur district and Poonch estate (Jagir) had Muslim domination. Out of total population, Muslims constituted 61%, Hindus 37.2%, Sikhs1.6% and others including Buddhists, Christians, Jains etc about 0.16%. Kashmir Division’s population was 11-12 lakh. Muslims contributed 76-77 % of total population. Kashmiri Pandits contributed approximately 20%, remaining part of the population included Sikhs, Buddhists and Christians etc. Ladakh’s population was between 60,000-70,000 and majority of them were Buddhists. Baltistan’s population was 80,000-1,00,000 and out of them 75% were Shia Muslims and rest Sunnis. Gilgit which comprised areas of small principalities namely, Hunza, Nagar, Chilas, Punial, Yasin, Gupis, Ishkoman had population between 1,00,000 to 1,20,000. Majority were Sunni Muslims and the rest were Ismailis Muslims.
Judicial system in Jammu Region before Maharaja Gulab Singh
In the early medieval period, there were numerous small Dogra Rajput states and their respective Raja used to be the supreme judge. His Wazirs/Dewans settled day-to-day disputes.
Village level Panchayats settled civil and family matters. To some extent, basic tenets of “Manusmriti” and “Mitakshara” school of Hindu law were observed. Local customs had also relevancy. The remaining Muslim population had their own legal systems.
In Kashmir Valley: Pre-Dogra. Period.
Hindu period: up to 13 century.
Basic law:- Dharamshastras (Manu, Yajnavalka) local customs and King’s proclamations. A King used to be the supreme judge. Even Panchayat system existed. Justice was based on Dharma, equity, custom and even on oral and documentary evidence. Disputes were mostly settled by fines, compensation and reconciliation. In case of heinous crimes; discretion of the ruler used to be the final.
Kashmir Sultanate (1339-1586)
Islamic Sharia of Hanifi school. For Hindus: traditional Shastric law and customs. But when Sultan Sikander (1389-1413) ruled Kashmir, Hindu religious institutions were reduced and many were even destroyed. Atrocities on Hindus were committed.
Mughal rule 1586-1752
Muslim Sharia and imperial farmans. Religious begot and ruthless brutal king Aurangzeb in 1675 appointed Iftikhar Khan as Subedar (Governor) of Kashmir. He forcefully converted many Hindus (Kashmiri Pandits). Hindu temples were taxed and, in many cases, damaged. Jizya (tax) was imposed on Hindus. A delegation of Kashmiri Pandits led by Pandit Kripa Ram Dutt met revered Sikh Guru Teg Bahadur ji and presented their grievances describing their forced conversions and atrocities. They appealed for his protection. Guruji accepted their solicitations. In return, he (Guruji) had to face the wrath of Aurangzeb which ultimately led to his martyrdom in a very cruel and savage manner along with his three dear devotees at the hands of Aurangzeb. This fiendish and savage act shook the foundations of Mughal empire and consequently end of his dynastic rule.
Afghan Rule 1752-1819
This rule universally is regarded as most oppressive for Hindus. Heavy taxes, public torture, and cruelty by their soldiers both on males and females without any restraints and checks forced large scale migration of Kashmiri Pandits. This barbaric rule ended in 1819 when Maharaja Ranjit Singh of Punjab conquered Kashmir. Sikh rule remained only for 27 years followed by Dogra Rule (in 1819).
Judicial system in Ladakh before Dogra rule
Ladakh was an independent Buddhist kingdom and judicial system was traditional, community based and heavily influenced by Tibetan Buddhist principles. The Gyalpo (king) was the highest judicial authority. Lamas acted as mediators in disputes. Customary law was also followed.
Judicial system in Baltistan pre-Dogra rule
Baltistan was governed by local Rajas, who acted as the highest judicial authorities. Justice was based on customary Balti – Tibetan traditions, later influenced by Islamic ethics.
Judicial system in Gilgit pre-Dogra rule
Gilgit was ruled by small local Rajas and Mirs and justice was largely custom based. Village elders and clan heads settled most disputes through mediation. Serious matters such as land disputes, murders, inter clan disputes went to the Rajas or Mirs who acted as the final judicial authorities. They followed Muslim law.
Maharaja Gulab Singh (1846-1857)
Maharaja Gulab Singh focused mainly on consolidation of power, but laid preliminary foundations of judicial system. He delegated judicial functions to Wazirs, Thanedaars and revenue officers. Executive and judicial powers were combined. Beginnings of record-keeping and appointment of officers for civil / criminal and revenue officers for solving dispute had been initiated.
Maharaj Ranbir Singh (1857-1885)
Maharaj Ranbir Singh is considered the real architect of the modern judicial system in Jammu and Kashmir. He introduced structured legal reforms. Appointed committees to collect customary laws, Darbar orders, and religious local practices, with the goal of creating a more uniform legal system. This effort laid the foundation for later coded laws.
Criminal cases were handled through: Wazarat courts (district level). Then there were Governor Adalats- important appellate courts. Thandaars- police + magisterial functions. Village headmen – resolved minor disputes through custom.
Ranbir penal code was conceptualized and drafted originally during his period after on the lines of Indian Penal Code of 1860 with suitable modifications and named as “Ranbir Dand Bidhi”, later on it was formally codified and enacted in 1932 by Maharaja Hari Singh after the name of Ranbir Singh. Criminal cases were handled through Wazarat courts i.e. District level then there were governor Adalat important appellate courts. Religious courts (Dharam Adalats) followed Hindu law and Adalat-Qaza followed Muslim law. They handled civil disputes like marriage, inheritance, and personal matters.
During his regime in the year 1867, the first systematic settlement of revenue records was undertaken by measuring the land, classifying the soils and preparing formal revenue records, such as “Askas Jamma Bandi”, “Khasara Gardawri” etc.
Maharaja Partap Singh (1885 to 1925)
During his rule, the most famous and detailed land settlement had been done by Sir Walter Lawrence (1895 – 1905). This settlement set afoot the beginning of Jammu and Kashmir land revenue regulations (1906) and settlement rules, and other land related enactments. Excise regulations were introduced in 1890. Structured system of “Records Rights” was established.
Maharaja Hari Singh (1925 – 1947)
Detailed procedure for land survey, defined rights of tenants, occupancy tenants and lumbar/chowkidar rules were made. He introduced Land Alienations Laws to protect the peasants. By 1930, Jammu and Kashmir had a fully codified revenue administration, comparable to British provinces. Famous State Subject Rules were issued through notification of 20th April 1927. He undertook major steps for the modernization of legal reforms. In the year 1930 by proclamation, Maharaja created A Supreme Judicial Advisory Body of Judicial Advisors, “but remained himself the final Judicial Authority. In 1934 he promulgated “The Constitution Act of J&K and thereby established the first Legislative Assembly – a representative government but retained overriding powers. The Constitution Act of J&K State of 1939 was a hallmark achievement. It was an amending and consolidating Constitutional Statue to revise and replace the working scheme of the 1934 Constitution Act. Abolition of Beggar (forced labour), Compulsory Primary Education were his socialistic oriented Acts. He introduced Legal and judicial reforms by enacting the, “The Constitution of the Jammu and Kashmir High Court Act – 1928. The establishment of Jammu and Kashmir High Court was a great step in aid for modernization of the judicial system. Civil service regulations were modernized. Reforms of Civil and Criminal Procedure Codes adapting Indian Codes to Jammu and Kashmir speak volumes of his progressive public oriented rule. Modernization of Police administration was codified. He did not tolerate corruption in his state and took harsh and stringent steps by codifying the relevant Acts. Regulated by making relevant Acts and Rules for expansion of irrigation system. Codified roads, telegraph regulations. Made Mining laws, Forest laws. Took steps to regulate the local production of electricity. Health services of medical staff including service conditions of doctors and paramedic staff were regulated.
Public vaccination and epidemic control laws were made. Labour and Industrial legislation started during his time. In other words, codifications of laws had started during the reign of Maharaja Ranjit Singh and developed during the reign of Maharaja Pratap Singh, but finality was attained to be at par with Indian Provinces by his efforts. Revenue laws, Jail manuals were copied with modifications for adoption from neighbouring Punjab Province. Though the Ranbir Penal Code was enacted conceptually in 1862 to replace arbitrary and customary criminal practices on the basis of Indian Penal Code, 1860 with adaptations suited to local conditions of the Jammu and Kashmir state yet between 1862 and 1932, the RPC underwent limited amendments and judicial refinements. It was supplemented by codified Criminal Procedure and Evidence Act but by 1932, it stood as a fully developed and stable code. The Civil Procedure Code of 1908 also aligned with the jurisprudence of contemporary legal systems of neighbouring province of Punjab. These laws remained in force till 2019.
Establishment of Board of judicial Officers
During the rule of Maharaja Pratap Singh, in the year 1889, the British government asked him to appoint a council, and the judicial member of the council to exercise all the appellate powers, both on civil and criminal side. The state having two provinces – Jammu and Kashmir had two chief judges, exercising judicial authority, but they acted under the Superintendent and Control of the law member of the council. Later the council was abolished, and a minister designated as judge of the High Court was appointed by the ruler of the state, and instead of law member, a ministry in the judicial department was created. Thereafter, in 1928 by virtue of Order No. 1 dated 26th of March 1928, the High Court of judicature was established and for the first time the High Court was to consist of the Chief Justice and two judges. The usual places of sitting of the High Court used to be Jammu and Srinagar. In 1934 and in 1939, Maharaja Hari Singh promulgated the Constitution Acts (supra), which incorporated the provisions of law relating to the High Court and conferred upon the High Court, a substantial measure of independence. The High Court was invested with the powers of superintendence and control over the Courts/ District judiciary.
In 1930, three members Board of Judicial Advisors akin to Privy Council in British India was established as stated supra. The Board had to advise the Ruler in the disposal of the civil and the criminal appeals against the decisions of the High Court. The Board of Judicial Advisors was abolished in 1948 after the Accession of the State to the Union of India took place. It’s jurisdiction was transferred entirely to the J&K High Court. At the time of its abolition 17 appeals were pending before it. On the request of the Chief Justice of the Jammu and Kashmir High Court, the government of India with the concurrence of the Chief Justice of India constituted a Special Bench of Supreme Court which heard the pending appeals in Srinagar. The Supreme Court upheld the impugned judgments of the High Court in all the 17 appeals. It is a historical event when a Bench of Supreme Court held its sitting outside the place of seat at Delhi until date. This is the sole instance. Letters patent powers were conferred on the High Court of J&K in 1954 vide Constitution Application order of 1954. The jurisdiction of Supreme Court was extended to Jammu and Kashmir but in only specified matters from 1950 onward. The Jammu and Kashmir state had its own constitution and a separate state flag. The residents of the state were even denied the benefits of fundamental rights. The daughters of the J&K State who married outside the state of Jammu and Kashmir had no right to inherit the ancestral property as well as right to get any government job. The Jammu and Kashmir High Court rectified this wrong in its landmark judgment delivered on 7th October 2002. The separate State Constitution, it’s flag, Article 370 and Article 35-A are now events of the past. In 2019, all the provisions of Indian Constitution were made applicable.
At the end, it is stated by way of an epilogue that following the end of Dogra Rule, the judiciary faced marked discrimination, being denied fair, emoluments, and basic facilities – such as adequate housing and transport – available to judicial officers and High Court judges across the country. This was because of special status of the state due to separate constitution and separate state flag. Article 370 was also incorporated in the Indian Constitution which was also standing as a bulwark. Such a travesty of justice survived for more than two decades for J&K High Court judges. The district judiciary members had even to wait for longer period till the Supreme Court gave its judgment in the case of All India Judges Association versus Union of India, 1993 4 SCC 288.
(The author is former Judge, Jammu and Kashmir High Court, Jammu)
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