The Jammu and Kashmir Reorganisation Act, 2019, is an act of India’s parliament that contains provisions to divide the Indian-administered state of Jammu and Kashmir, which is a part of the larger region of Kashmir that has been a source of contention between India, Pakistan, and China since 1947, into two Indian-administered union territories (UTs) called Jammu and Kashmir and Ladakh, with the first UTs becoming operational on October 31, 2019. On 5 August 2019, Minister of Home Affairs Amit Shah introduced a bill in the Rajya Sabha for the legislation, which was passed the same day. The Lok Sabha then passed it on August 6, 2019, and the president signed it on August 9, 2019. The act abolishes the Jammu and Kashmir legislative council. The bill was introduced after the presidential order which indirectly amended article 370 of the Indian constitution and revoked Jammu and Kashmir’s special status. It also extends the power of the central government and allows them to pass several executive orders about both union territories.
WHY UNION TERRITORY?
Here a question may be asked why are there two UT and not two states or a state and a UT. So before Jammu and Kashmir has a legislative assembly and most central laws are applied to J&K only when it is approved by its assembly but as of now Ladakh will not have its legislative assembly and will be directly controlled by a lieutenant governor. The first lieutenant governor of this union territory is a former defense secretary RK Mathur. The UT of J&K will have its legislative assembly following article 239a of the constitution also known as the Puducherry model. The legislative assembly of Jammu and Kashmir will have a term of 5 years and 107 members. Technically it is only 83 members as 24 seats are kept reserved for POK and are for the time being will remain vacant. The J&K legislative assembly will be able to frame laws on areas under state and concurrent list but this comes with some restrictions. The assembly does not have the power to create laws concerning public order, police, and trade and commerce. The act also carves out significant discretion for the LG who is the central appointee on All India Services that is IAS officers and the anti-corruption bureau. The LG also has the power to withhold assent from bills passed by J&K Assembly and reserve them for consideration by the president. The first LG of Jammu and Kashmir is Girish Chander Murmu who is a former principal secretary to PM Narendra Modi when he was the chief minister of Gujarat. So by this, both the UTs will be under the direct supervision of the center and thus is easier to govern.
The abolition of Article 370 already specifies that all the central laws that are applied to the rest of the country will be applied to the new UTs. The fifth schedule to the act also lists a total of 106 central laws which will now be applicable in the two new UTs while 153 state acts will be repealed. How will this impact things on the ground? The most significant will probably be the application of IPC and the central code of criminal procedure. J&K already had its own Ranbir penal code and CrPC which is now being repealed. They were similar to central laws but because they were technically separate legislative and judicial law didn’t automatically apply there. Let’s take section 377 for example, where the supreme judge decriminalizing consensual homosexual acts will now be applied on J&K as same with the removal of the child marital rape exception in section 375. Now some have argued that there is a 1995 J&K High Court decision that could already have been interpreted to have done this in the state already but this was not conclusive thus it is going to be a major change. Other major changes will be to personal law and the transfer of property. For example, the 2005 Hindu Succession Act amendments which gave women equal inheritance rights as men will now be applicable. The restrictions on the transfer of property under section 139 of the J&K Transfer of property act are also gone now. Juveniles between the ages of 16 and 18 can also be prosecuted as adults in Jammu and Kashmir and Ladakh now. This central law was enacted in 2015 but hadn’t been enacted in the state till now.
CHALLENGES IN THE SC REGARDING THE CHANGES
A constitution bench headed by Justice NV Ramana is hearing several petitions challenging the abrogation of article 370 and the reorganization act which are on the following grounds:-
The first one is that they have downgraded a state by giving them a special status as UTC which violates the principle of federalism and was not contemplated under the constitution. Also, the requirement under article 3 of the constitution is not fulfilled. Under this parliament has to get the views of the legislature of the state from which it is carving out the new states or new UTs but this never happened as J&K was and remains under the president’s rule. A request to stay the operation was rejected by the apex court with the judges saying that they would roll back the clock if necessary.
According to Sections 3 and 4 of the Act, the state of J&K is divided into two units. Following the Act’s implementation, both UTs have a common Lieutenant Governor a Legislative Assembly with 107 members has been established in the UT of J&K, out of which 24 seats have been suspended for the PoK region, and the UT of Ladakh has no Legislative Assembly. The Legislative Council of the state of J&K has been abolished, and all bills that were pending before the Council have been suspended.
Author’s Name: Mehul Khandelwal (Narsee Monjee Institute of Management, Hyderabad)