Territorial Application of IPC, 1860 to include Jammu and Kashmir

It is an old saying that "no person(natural or juristic) can be perfect" and legislatures are no exception of it. 

In the year of 2019, President of India, in the exercise of the powers conferred by clause (1) of Article 370 of the Constitution made an order namely Constitution (Application to Jammu and Kashmir) Order, 2019 by which Constitution (Application to Jammu and Kashmir) Order, 1954, as amended from time to time, was superseded and territorial application of whole Indian Constitution was extended to include the state of Jammu and Kashmir. In the same year Parliament enacted Jammu and Kashmir Reorganisation Act, 2019(hereinafter referred to as "Act 34 of 2019") by which the state of Jammu and Kashmir was bifurcated into two Union Territories. Section 95(1) of the Act 34 of 2019 states that All Central laws in Table -1 of the Fifth Schedule to the Act 34 of 2019, 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.

Entry no. 48 in Table - 1 of fifth schedule to the Act 34 of 2019 states that In section 1 of Indian Penal Code, 1860(hereinafter referred to as IPC, 1860), words, "except the State of Jammu and Kashmir" shall be omitted. It means by the Act 34 of 2019, section 1 of IPC, 1860 stand amended to extend the territorial application of IPC, 1860 to include both the newly born Union Territories. 

Section 18 of IPC, 1860 defines the term India as "the territory of India excluding the state of Jammu and Kashmir". Now this section has not been amended by any parliamentary enactment. Since the definition of India is not amended therefore wherever the term "India" is being used in IPC, 1860 has a mandatory reference to section 18 of IPC, 1860. E.g. Section 360 of IPC, 1860 provides the definition of Kidnapping from India as "Whoever conveys any person beyond the limits of India without the consent of that person, or of some person legally authorised to consent on behalf of that person, is said to kidnap that person from India". According to this definition a person can only be kidnapped from India under the said section and definition of India is given under section 18 which excludes the state of Jammu and Kashmir. It means, technically, a case where a person has been taken away from either of the newly born Union Territories, shall not fall within the ambit of Section 360 of IPC, 1860. 

Now it is pertinent to observe that even after amending Section 1 of IPC, 1860, technically, territorial application of IPC, 1860 was not extended to include both the newly born Union Territories. 

Now in this situation substantial question is whether this defect can be rectified? Fortunately yes, this defect can be rectified by two possible ways - 

Judicial Approach - 

Doctrine of Ejusdem Generis explained by Black's Law Dictionary(8th edition, 2004) as the principle of Ejusdem Generis is where general words follow an enumeration of persons or things, by words of a particular and specific meaning, such general words are not to be construed in their widest extent, but are to be held as applying only to persons or things of the same general kind or class as those specifically mentioned. it is a canon of statutory construction, where general words follow the enumeration of particular classes of things, the general words will be construed as applying only to things of the same general class as those enumerated.

Doctrine of Ejusdem Generis is explained by Halsburrys's Laws of England as a rule, where in a statute there are general words following particular and specific words, the general words must be confined to things of the same kind as those specified, although this, as a rule of construction, must be applied with caution, and subject to the primary rule that statutes are to be construed in accordance with the intention of Parliament. For the Ejusdem Generis rule to apply, the specific words must constitute a category, class or genus, then only things which belong to that category, class or genus fall within the general words.

In the case of Kavalappara Kottarathil Kochuni Vs The State Of Madras, Hon’ble Supreme Court has held that Doctrine of Ejusdem Generis is applicable when general words follow particular and specific words of the same nature, the general words must be confined to the things of the same kind as those specified. But it is clearly laid down by decided cases that the specific words must form a distinct genus or category. It is not an inviolable rule of law, but is only permissible inference in the absence of an indication to the contrary.

In the case of Uttar Pradesh Electricity Board Vs. Hari Shanker Jain, Hon’ble Supreme Court has held, that the true scope of the rule of "ejusdem generis" is that words of a general nature following specific and particular words should be so construed as limited things which are of the same nature as those specified. But the rule is one which has to be "applied with caution aud not pushed too far". It is a rule which must be confined to narrow bounds so as not to unduly or necessarily limit general and comprehensive words. If a broad-based genus could consistently be discovered there is no warrant to cut down general words to dwarf size. If giant it cannot be, dwarf it need not be. Further, Supreme Court has has laid down the following five essential elements of this rule:

(1) the statute contains an enumeration of specific words;

(2) the subjects of enumeration constitute a class or category;

(3) that class or category is not exhausted by the enumeration;

(4) the general terms follow the enumeration; and

(5) there is no indication of a different legislative intent. 

And further it was held, that If the legislative purpose of a statute is such that a statutory series should be read Ejusdem Generis, so be it, the rule is helpful.  But if not, the rule is more likely to defeat than to fulfill the purpose of the statute. The rule like many other rules of statutory interpretation is a useful servant but a bad master.

Supreme Court or High Court of Jammu and Kashmir by applying "doctrine of ejusdem generis" can rectify the error committed by Parliament and the confusion, prevailing in this relation, shall be eliminated, if the said error is not intentional. 

Parliament's Approach - 

Parliament simply may rectify this error by amending section 18 of IPC, 1860.