Reorganization of Jammu and Kashmir

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The Jammu and Kashmir Reorganisation Act, 2019 contains provisions to reorganise the State of Jammu and Kashmir into two union territories, one to be called Jammu and Kashmir, and the other Ladakh on 31 October 2019.

The former will have a legislative assembly whereas Ladakh will be administered by a Lieutenant Governor alone. The Union Territory of Ladakh will include the districts of Leh and Kargil. All other districts will remain with Jammu and Kashmir.

Out of the six seats allocated to the State of Jammu and Kashmir, one will be allocated to Ladakh and the remaining five will remain with the Union Territory of Jammu and Kashmir. The High Court of Jammu and Kashmir will function as the High Court for both the Union Territories.

The Bill was passed by the Parliament on 6 August 2019 and assented to by the President of India on 9 August 2019.

Why did the President pass an Order before the Bill was introduced?

The introduction of the Bill was preceded by a Presidential Order under Article 370 of the Indian constitution declaring that all the provisions of the Indian Constitution would be applicable to Jammu and Kashmir.

The 1954 Order had a proviso to the Article 3 of the Indian constitution, stating that the Union would not alter the area, name and the boundaries of the State of Jammu and Kashmir. Its revocation paved the way for the introduction of the Reorganisation Bill.

What is the governance structure of J&K?

The administration of the Union Territory of Jammu and Kashmir will be as per the Article 239 of the Constitution of India. The Article 239A, originally formulated for the Union Territory of Puducherry, will also be applicable to Jammu and Kashmir.

The Union Territory will be administered by a Lieutenant Governor appointed by the President of India. It will have a legislative assembly of 107 to 114 members, whose tenure will be five years. The legislative assembly may make laws for any of the matters in the State List except “public order” and “police”, which will remain the preserve of the Union government.

A Council of Ministers including a Chief Minister will be appointed by the Lieutenant Governor from the membership of the legislative assembly. Their role will be to advise the Lieutenant Governor in the exercise of functions in matters under the jurisdiction of the legislative assembly. In other matters, the Lieutenant Governor is empowered to act in his own capacity. The Lieutenant Governor will also have the power to promulgate ordinances which will have the same force as the acts of the legislature

Key changes:

  1. The President had used his powers under Article 370 to fundamentally alter the provision, extending all Central laws, instruments and treaties to Kashmir. However, the drastically altered Article 370 will remain on the statute books.
  2. While the Union Territory of Jammu and Kashmir will have a legislature, the one in Ladakh will not.
  3. The notification by the president has effectively allowed the entire provisions of the Constitution, with all its amendments, exceptions and modifications, to apply to the area of Jammu and Kashmir.
  4. The Bill proposes wide powers to the Lieutenant Governor of the proposed Union Territory of Jammu and Kashmir and makes it the “duty” of the Chief Minister of the Union Territory to “communicate” all administrative decisions and proposals of legislation with the LG.
  5. All Central laws and State laws of J&K would apply to the new Union Territories of J&K and Ladakh.
  6. Assets and liabilities of J&K and Ladakh would be apportioned on the recommendation of a Central Committeewithin a year.
  7. Employees of State public sector undertakings and autonomous bodies would continue in their posts for another year until their allocations are determined.
  8. The police and public order is to be with the Centre.
  9. The notification amends the expression “Constituent Assembly”, contained in the proviso to clause (3) of Article 370, to mean “Legislative Assembly”.


Role and powers of the Lieutenant Governor:

  1. The Bill specifies that the Union Territory of Jammu and Kashmir and the Union Territory of Ladakh will have a common Lieutenant Governor.
  2. Appointment of L-G in Ladakh: The President shall appoint the L-G under article 239. The L-G will be assisted by advisors appointed by the Centre since the Union Territory will not have a Legislative Assembly.
  3. In the case of Union Territory of Jammu and Kashmir, the L-G shall “act in his discretion” on issues which fall outside the purview of powers conferred on the Legislative Assembly, in which he is required to exercise any judicial functions, and/or matters related to All India services and the Anti-Corruption Bureau
  4. The Chief Minister shall be appointed by the L-G who will also appoint other ministers with the aid of the CM. The L-G shall also administer the oath of office and of secrecy to ministers and the CM.
  5. The L-G will have the power to promulgate ordinances which shall have the same force and effect as an act of the Legislative Assembly assented by the L-G.

Impact:

  1. The tabling of the proposed Reorganisation Bill is also proof that the long reign of the 1954 Order has ended. The 1954 Order had introduced a proviso to Article 3, namely that “no Bill providing for increasing or diminishing the area of the State of Jammu and Kashmir or altering the name or boundary of that State shall be introduced in Parliament without the consent of the Legislature of that State“. That power of the State Legislature to give prior consent does not exist anymore. This has provided a free hand to the Centre to table the Reorganisation Bill.
  2. With the removal of the 1954 Order, the power of the State Legislature ceases to exist and Parliamentary laws, including that of reservation, would apply to Jammu and Kashmir as it does in other parts of the country.
  3. The government called this the end of “positive discrimination” and the closing of the “chasm” between residents of J&K and citizens of other parts of the country.
  4. The removal of the 1954 Order further also negates a clause which was added to Article 352. The Order had mandated that no proclamation of Emergency on grounds “only of internal disturbance or imminent danger shall have effect” in the State unless with the concurrence of the State government.

Rationale behind this move:

  1. Article 370 has prevented J&K to merge with India rather than being a basis of its merger.
  2. Article 370 was seen as discriminatory on the basis of gender, class, caste and place of origin.
  3. Post the repeal of the Article 370, doors to private investment in J&K would be opened, which would in turn increase the potential for development there.
  4. Increased investments would lead to increased job creation and further betterment of socio-economic infrastructure in the state.
  5. Opening of buying of lands would bring in investments from private individuals and multinational companies and give a boost to the local economy



Criticism:

  1. The mechanism that the government used to railroad its rigid ideological position on Jammu and Kashmir through the Rajya Sabha was both hasty and stealthy. This move will strain India’s social fabric not only in its impact on Jammu and Kashmir but also in the portents it holds for federalism, parliamentary democracy and diversity.
  2. The passing of legislation as far-reaching as dismembering a State without prior consultations has set a new low.
  3. The entire exercise of getting Article 370 of the Constitution effectively abrogated has been marked by executive excess.
  4. A purported process to change the constitutional status of a sensitive border State has been achieved without any legislative input or representative contribution from its people.

Challenges ahead:

  1. The move will be legally challenged on grounds of procedural infirmities and, more substantively, that it undermines the basic feature of the compact between Delhi and Srinagar that was agreed upon in 1947.
  2. The President’s power under Article 370 has been used both to create an enabling provision and to exercise it immediately to modify the Order, thereby dispensing with the role envisaged for the State Assembly.
  3. While it is true that in 1961 the Supreme Court upheld the President’s power to ‘modify’ the constitutional provisions in applying them to J&K, it is a moot question whether this can be invoked to make such a radical change: a functioning State has now been downgraded and bifurcated into two Union Territories.
  4. But beyond the legality, the real test will be on the streets of Srinagar, Jammu and Delhi once the security cordon is lifted from the State.
  5. What was unbecoming is the unwillingness to enter into consultation with the mainstream political leaders; in no other State would former Chief Ministers have been dealt with so cavalierly.


Conclusion:

The special status of J&K was meant to end, but only with the concurrence of its people. The Centre’s abrupt move disenfranchised them on a matter that directly affected their life and sentiments. Moreover, that this was done after a massive military build-up and the house arrest of senior political leaders, and the communications shutdown reveals a cynical disregard of democratic norms. Whatever its intent in enabling the full integration of Jammu and Kashmir with India, this decision to alter the State’s status could have unintended and dangerous consequences but it’s considered to be as one of the finest masterstroke in Political history of any party. BJP will have electoral gains far fetched, reaching out to maximum of the people by this masterstroke.

Author: KHUSHI DHAREWA

Editor: Kanishka VaishSenior Editor, LexLife India.

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