Jammu & Kashmir Reorganisation Act, 2019
This Article is written by Naini Naryan, a Third Year B.A LL.B (Hons.) Student at University of Petroleum and Energy Studies, Dehradun.
Abstract
After passing a legislative resolution on the removal of special status in Jammu and Kashmir by diluting Article 370 Rajya Sabha has now passed the vote on the 2019 reorganization bill, from 31 October 2019, this law came into force with full effect with a new reconstruction of the JK State divided into two territories of the Union- Jammu and Kashmir and Ladakh. Bill 2019 that will effectively transform the state of Jammu and Kashmir into two territories (UT), Jammu and Kashmir with a legislature and Ladakh without a legislature. This paper will be discussing many things like a legislative resolution on Article 370 and the J & K Reorganization Bill have been adopted by Rajya Sabha and will be put to a vote in Lok Sabha next.
Jammu and Kashmir will also become the largest union territory (UT) in India in terms of the area once it is cut while Ladakh, will be 2nd UT after it arrives at force. This bill includes 103 clauses, by amending some relevant central or state laws (i.e. 106 central laws and 7 state laws) also repealing 153 state laws and the laws of the governor. From the designated day, the governor of the current state of J&K will be appointed Lieutenant Governor for both UT until the term of office is determined by the President of India.
About Article 370
Several Opposition members in and outside Parliament raised claims about, what Union Home Minister Amit Shah today said in the Rajya Sabha was not scrapping or abrogating Article 370 of the Indian Constitution. Article 370 is an enabling provision, which explains that which parts of the Indian Constitution have jurisdiction over Jammu and Kashmir, which adopted a separate state constitution for itself during the 1950s. Article 370 (3) empowers the President to decide the limit of the jurisdiction of the Constitution of India over the state. Article 370 is a part of the Constitution and cannot be repealed without a constitutional amendment in accordance with Article 368. No such bill was passed by Amit Shah in Parliament today. The government used the same article 370 to proclaim that Jammu and Kashmir granted special status under that article. Amit Shah said: “Not all the provisions of Article 370 are now transposed to Jammu and Kashmir[1].”
This was done by a presidential order which, in fact, will succeed the old presidential orders covered by Article 370. In the past, Jammu and Kashmir dealt with only a number of limited provisions, such as external relations, communication and defence. This means that the separate constitution of Jammu and Kashmir is no longer in force in the state. As the state constitution had become obsolete and Articles 1 to 2 were addressed to Jammu and Kashmir, the central government had the power to trace the map of the state.
How Government used Article 370 to kill Article 370
At an important event, Union Interior Minister Amit Shah proposed a resolution in Rajya Sabha to ineffectively article 370 in Jammu and Kashmir. Interestingly, in his statement in Rajya Sabha, Amit Shah invoked the same article 370 to make it ineffective. Article 370 of Article 370 authorizes the President to declare at any time the special status of Jammu and Kashmir. Bharatiya Janata has issued a presidential order to implement that the party had promised in the election of Lok Sabha in April-May, and that had been the party’s long-standing demand[2].
Article 370(3)[3] is worded as follows: ‘By way of derogation from the above provisions, the President may declare by public notification that this Article is no longer in operation, with the exception of the amendments and subject to the amendments and the date indicated by him’.
Article 370 confers in many respects a special status for Jammu and Kashmir, which confers authority on the central government only in foreign relations, defence and communication. Article 370 refers to the ‘temporary provisions on the state of Jammu and Kashmir’ and limits Parliament’s power to legislate for the State to a precise list of issues. Amit Shah has also tabled a resolution for the reorganization of Jammu and Kashmir. Ladakh will be a separate territory of the Union without a parliamentary term, while Jammu and Kashmir will be an area of the Union with one parliamentary term.
This movement by Narendra Modi’s government was a surprise. There was speculation that the government would reject Article 370, but many erased the idea by saying that the Supreme Court would be invoked with numerous cases related to Article 370 and Article 35(a)[4]. Instead of rejecting Article 370, the government used the power granted to the president by the same article to render that provision invalid.
Otherwise, the deletion of Article 370 would require a constitutional amendment under Article 368. But, citing Article 370(3), the government has wisely avoided the path of change. The presentation of the resolution for the adoption of the Order of the President led to a huge pandemonium in Rajya Sabha. Oppoisiton leaders, including Ghulam Nabi Azad, rejected the decision on the grounds that the government had “murdered” the constitution. Amit Shah defended the measure, saying that the government of Narendra Modi followed what Pandit Jawaharlal Nehru did in 1952 and 1962. Pandit Nehru and later the Prime Minister of Jammu and Kashmir, Sheikh Abdullah, accepted the Delhi Agreement in 1952, which grants special privileges to the people of Kashmir on matters of property based on hereditary principles. A presidential decree was also implemented in 1965.
This measure by the Modi government, if and when the approval of the two chambers of parliament is obtained, would mean that the Indian Constitution will be fully applicable to Jammu and Kashmir. The separate constitution of Jammu and Kashmir will no longer be in force. Article 35a, which distinguishes between permanent residents of Jammu and Kashmir and foreigners, will also have no effect. The reserve laws apply to employment and education in Jammu and Kashmir, as well as to the rest of the Indian states. Foreigners will be eligible for admission to colleges funded by the government of Jammu and Kashmir and jobs in the offices of the government of the state. It would be possible to acquire land and own property by persons previously considered foreigners. This was considered a major reason preventing companies from building large units in Jammu and Kashmir. The government argued that lifting the restrictions on property by foreigners will pave the way for prosperity in Jammu and Kashmir. Kashmir women marrying a non-Kashmir and their children would no longer lose their inheritance law.
Bifurcation of Jammu and Kashmir[5]
The Union Home Minister, Amit Shah, also proposed a bill to divide the state of Jammu and Kashmir into two UT (Union territories), Jammu and Kashmir. Amit Shah told Rajya Sabha on Monday that the government had proposed reorganizing Jammu and Kashmir and creating two separate areas of the Union of Ladakh and Jammu and Kashmir.
This has happened in view of the current threat of cross-border terrorism. The area of the Ladakh Union is a long-awaited demand from the inhabitants of the region and the decision aims to meet the needs of the local population, said Amit Shah.
Change after Scrapping of Article 370[6]
With the repeal of Article 370, Jammu and Kashmir will not have their own flag or constitution, and the term of office of the state of the legislature will be a period of five years like any other state and two Union territories in the country. The Indian Penal Code (IPC) will replace the Ranbir Penal Code (RPC) to deal with criminal cases, and Article 356, which allows the President’s rule to apply in each state, will also apply in the Union territories (UTs) Jammu and Kashmir and in Ladakh with an unprecedented decision of the Centre. With two new UTs, the total number of up to 9 J-K, Ladakh, Delhi, Puducherry, Diu and Daman, Dadra and Nagar Haveli, Chandigarh, Lakshadweep and Andaman and Nicobar Islands will go.
This decision will be challenged by law on procedural grounds and, in particular, will undermine the fundamental feature of the 1947 Delhi-Srinagar Pact[7]. The power of the President under Article 370 was used both to establish a justification and to exercise the power to amend the Order immediately, thereby dissolocating the role of the State Assembly from the intended role. Although the Supreme Court upheld the President’s power to upsoateen the constitutional provisions by applying them to J&K, it is theoretically clear whether this can be used as such a radical change: a functioning state has been declassified and diverted to two areas of the Union. But beyond legality, the real test will be on the streets of Srinagar, Jammu and Delhi once the state barrier is lifted. What was unworthy was the reluctance to consult with the main political leaders; No other state would have been treated so ruthlessly.
Jammu & Kashmir Reorganisation Bill 2019
- Assembly Seats– A bill to divide Jammu and Kashmir will result in an increase in seats in the newly formed Assembly from 107 to 114 seats, 24 of which would be considered vacant until Pakistani Kashmir (PoK) falls under the jurisdiction of the Indian state. The National Assembly currently has 111 seats, 46 of which are in the Kashmir Valley, 37 in Jammu and 4 in the Ladakh division. After the adoption of the Rehabilitation Act by Parliament, Ladakh will be a territory of the Union managed by the Centre.
- Assembly Tenure– With abrogation of Article 370, tenure of J&K state Assembly will now be 5 years as in other parts of state which till now had a special status with a 6 year tenure.
- Reservation– The new assembly must have a reserve for the planned cabinets (SC) and the minor tribes (ST) as in other parts of the state.
- Reorganisation of Constituencies- The constituencies are reorganised by a restriction under the Law of Parliament of 2002. For the purposes of delimitation, the 2011 census figures are considered as a reference.
- Unicameral Policy- Bill also wants to abolish the State Legislative Council to make J-K a comfortable policy. The state will have a chief minister and a governor of Lt,1, and all financial bills will have to be approved by Lt Governor.
Reason behind the Act
Article 370 prevented J&K from merging with India instead of being a basis for its merger. Article 370[8] was considered to be discriminatory on grounds of sex, class, caste and place of origin. The repeal of Article 370 would open the doors to private investment in J&K, which in turn would increase the development potential in that country. Higher investment would lead to more jobs and an improvement in economic and social infrastructure in the state. Opening up land purchases would involve investment by individuals and multinationals and give a boost to the local economy.
Impact of the Act
The introduction of the proposed rehabilitation bill is also proof that the long domination of the Order of 1954 is over. The Order of 1954 had insinuated Article 3 that no bill providing for the expansion or reduction of the territory of the state of Jammu and Kashmir or the modification of the name or border of that state would be presented to Parliament without the approval of that state’s legislative power.” This power of the state legislator to give prior consent no longer exists. This gave the Centre carte blanche to introduce the Rehabilitation Act.
With the repeal of the 1954 decree, the legislative power of the state was extinguished and parliamentary laws, including the reserve, would apply to Jammu and Kashmir, as is the case in other parts of the country. The government has called this an end to “positive discrimination” and the closing of the “gap” between the people of J-K and the citizens of other parts of the country. The repeal of the 1954 decision also denies a clause that was added to section 352[9]. The College had mandated that no emergency declarations would enter into force in the state for reasons of “internal disturbance or imminent danger” unless the government agreed.
Challenges faced by the Act
This measure is legally challenged because of procedural inadequacies and, still essential, undermines the fundamental characteristic of the 1947 Delhi-Srinagar pact.
The power of the President under section 370 was used both to create an authorization and to exercise it without delay to amend the by-law, relinquishing the role provided for by the National Assembly.
Although the Supreme Court upheld the presidential power to “change” the constitutional provisions on the application of J&K in 1961, it is questionable whether this can be applied to such a radical change: a functioning state has now been demoted and transformed into two UT. But beyond legality, the real test will be on the streets of Srinagar, Jammu and Delhi as soon as the security record is removed from the state. What was unpleasant was the lack of willingness to engage with the leaders of the general public; In no other state would the former prime ministers have been treated in such a cavalier manner.
Conclusion
J & K’s special status should end, but only with the consent of his people. The centre’s sudden gesture deprived her of her rights on an issue that directly affected her life and feelings. This was done after a massive military build-up and house arrest of high-ranking political leaders, and the closure of communications reveals a cynical disregard for democratic norms. Despite their intention to allow the full integration of Jammu and Kashmir with India, this decision to change the status of the state could have unforeseen and dangerous consequences.
[1] Article 370 has not been scrapped. What does Modi govt move on Kashmir mean?, https://www.indiatoday.in/news-analysis/story/article-370-has-not-been-scrapped-what-does-modi-govt-move-on-kashmir-mean-1577411-2019-08-05, (September 11, 2020)
[2] Kashmir: How govt used Article 370 to kill Article 370, https://www.indiatoday.in/india/story/kashmir-article-370-ladakh-jammu-1577321-2019-08-05, ( September 11, 2020 )
[3] indian constitution, article 370, clause 3.
[4] Indian constitution, article 35, clause a
[5] No Article 370 for Jammu & Kashmir, historic move by Modi govt, https://www.indiatoday.in/india/story/kashmir-unrest-amit-shah-parliament-reservation-bill-amendment-artcle-370-1577275-2019-08-05, (September 11, 2020)
[6] J&K Reorganisation Bill 2019 passed in Rajya Sabha, https://currentaffairs.gktoday.in/jk-reorganisation-bill-2019-passed-rajya-sabha-08201982340.html, (September 11, 2020)
[7] Jammu & Kashmir Reorganisation Bill-2019, https://www.insightsonindia.com/2019/08/06/jammu-kashmir-reorganisation-bill-2019/, (September 11, 2020)
[8] Indian constitution, article 370
[9] Indian constitution, article 352