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Jammu & Kashmir Reorganisation Bill-2019

Jammu & Kashmir Reorganisation Bill-2019

 

Context: Ending Jammu & Kashmir’s special status in the Indian Union, the government has extended all provisions of the Constitution to the State in one go, downsized the State into two Union Territories and allowed all citizens to buy property and vote in the State.

In this regard, Union Minister for Home Affairs, Shri Amit Shah, introduced two bills and two resolutions regarding Jammu & Kashmir (J&K). These are as follows:

  1. Constitution (Application to Jammu & Kashmir) Order, 2019 {Ref. Article 370(1) of Constitution of India} – issued by President of India to supersede the 1954 order related to Article 370.
  2. Resolution for Repeal of Article 370 of the Constitution of India {Ref. Article 370 (3)}.
  3. Jammu & Kashmir (Reorganisation) Bill, 2019 {Ref. Article 3 of Constitution of India}.
  4. Jammu & Kashmir Reservation (2nd Amendment) Bill, 2019.

 

Background:

So far, the Parliament had only residuary powers of legislation in J&K. This included enacted of laws to prevent terror and secessionist activities, for taxation on foreign and inland travel and on communication. 

 

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 Committee within 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”.

 

Legislative powers of the Union Territory of Jammu and Kashmir:

  1. The Legislative Assembly may make laws for the whole or any part of the Union Territory of Jammu and Kashmir with respect to any of the matters enumerated in the state list except on subjects “public order” and “police” which will remain in the domain of the Centre vis-a-vis the LG.
  2. In case of inconsistencies between laws made by Parliament and laws made by the Legislative Assembly, earlier law shall prevail and law made by the Legislative Assembly shall be void.
  3. The role of the Chief Minister will be to communicate to the L-G all decisions of the Council of Ministers relating to the administration of affairs of the Union Territory and proposals for legislation and to furnish such information relating to the administration of affairs as the L-G may call for.

 

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.

Difference between states and UTs:

  1. States have their own elected government, but in Union Territory (UT) is administered by the Central Government.
  2. The state is administered by Cheif minister, whereas UT is administered by Administrator appointed by President.
  3. The states have the Governor as its executive head, in UTs, President is its executive head.
  4. A state mandatorily has its own Legislative Assembly and make law for the state, for UT, it is not mandatory to have a Legislative Assembly.
  5. Powers in states are distributed through Federal mode that is powers divided between states and center. Whereas, in case of UTs, powers are Unitary in nature that is power is in the hands of the Center.
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