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Jammu and Kashmir Reorganisation Act, 2019 – Analysis

With effect from 9.08.2019, Jammu and Kashmir was removed from the first schedule of the Indian Constitution and was bifurcated into two union territories namely Jammu and Kashmir, and Ladakh. The Union Territory of Ladakh will consist of Kargil and Leh districts, and the Union Territory of Jammu and Kashmir will include the remaining territories of the existing state of Jammu and Kashmir. The Bill, however, was proposed by Ministry of Home Affairs, Mr Amit Shah on 5th August 2019 at the Rajya Sabha. The bill got an immediate assent from the president 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. The provisions contained in article 239A, which are applicable to “Union territory of Puducherry”, shall also apply to the “Union territory of Jammu and Kashmir” as per section 13 of the reorganisation Act,2019. The President 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. The Central government is permitted under Section 96 of the Jammu and Kashmir Reorganisation Act, 2019 to make changes and adjustments to facilitate the implementation of any law applicable to India, to the Union Territory of Jammu & Kashmir.

“For the purpose of facilitating the application in relation to the successor Union Territories, of any law made before the appointed day, as detailed in Fifth Schedule, the Central Government may, before the expiration of one year from that day, by order, make such adaptations and modifications of the law, whether by way of repeal or amendment, as may be necessary or expedient, and thereupon every such law shall have effect subject to the adaptations and modifications so made until altered, repealed or amended by a competent Legislature or other competent authority”

The 2019 Order provided that all provisions of the Constitution of India will apply to the state of Jammu & Kashmir, with a few exceptions and modifications. Though the power to abrogate or modify Article 370 was conferred on the President under clause (3) of the Article, there was a pre-condition to the same – concurrence by the Constituent Assembly of the State of Jammu & Kashmir. The Constituent Assembly had, however, ceased to exist as far back as in the 1950s.In order to get over this hurdle, the Presidential Order had amended Article 367 to replace the reference to “Constituent Assembly” under Article 370(3) to mean “Legislative Assembly”. A number of petitions challenging the abrogation of Article 370 are pending before the Supreme Court.

As per section 14(2), The Union Territory of Jammu and Kashmir will have a legislature, the one in Ladakh will not. The total number of seats in the Assembly will be 107.  Of these, 24 seats will remain vacant on account of certain areas of Jammu and Kashmir being under the occupation of Pakistan.  Further, seats will be reserved in the Assembly for Scheduled Castes and Scheduled Tribes in proportion to their population in the Union Territory of Jammu and Kashmir.  In addition, the Lieutenant Governor may nominate two members to the Legislative Assembly to give representation to women, if they are not adequately represented. The Assembly will have a term of five years, and the Lieutenant Governor must summon the Assembly at least once in six months. The Legislative Assembly may make laws for any part of the Union Territory of Jammu and Kashmir related to:

any matters specified in the State List of the Constitution, except “Police” and “Public Order”

any matter in the Concurrent List applicable to Union Territories.  Further, Parliament will have the power to make laws in relation to any matter for the Union Territory of Jammu and Kashmir.

The police and public order lies with the centre which brings to the interpretation that any neighbouring country or militants or non-state activists trying to cause harm through violence, the centre has absolute powers to deploy Indian Army in that disturbed region.

The Union Territory of Jammu and Kashmir will be administered by the President, through an administrator appointed by him known as the Lieutenant Governor. The Union Territory of Ladakh will be administered by the President, through a Lieutenant-Governor appointed by him. The 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 Lieutenant Governor. The Union Territory of Jammu and Kashmir will have a Council of Ministers of not more than ten per cent of the total number of members in the Assembly. The Council will aide and advise the Lieutenant Governor on matters that the Assembly has powers to make laws.

The High Court of Jammu and Kashmir will be the common High Court for the Union Territories of Ladakh, and Jammu and Kashmir. Further, the Union Territory of Jammu and Kashmir will have an Advocate General to provide legal advice to the government of the Union Territory. The central government will appoint Advisory Committees, for various purposes, including:

distribution of assets and liabilities of corporations of the state of Jammu and Kashmir between the two Union Territories,

issues related to the generation and supply of electricity and water,

issues related to the Jammu and Kashmir State Financial Corporation.  These Committees must submit their reports within six months to the Lieutenant Governor of Jammu and Kashmir, who must act on these recommendations within 30 days.

Therefore this Act primarily explains how the Jammu and Kashmir laws under the Jammu and Kashmir constitution were repealed and the Indian Constitution is being made applicable in the said union territories of Jammu and Kashmir and Ladakh.

– Karthik K.P.

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