JAMMU AND KASHMIR REORGANIZATION ACT
Background:
The government has abolished Jammu & Kashmir's special status in the Indian Union by extending all of the Constitution's provisions to the state all at once, downsizing the state into two Union Territories, and allowing all Indians to acquire property and vote in the state.
Shri Amit Shah, the Union Minister for Home Affairs, has introduced two laws and two resolutions on the subject of Jammu and Kashmir (J&K).
The following are some of them:
The President of India issued the Constitution (Application to Jammu and Kashmir) Order, 2019 (Ref. Article 370(1) of the Constitution of India) to replace the 1954 order pertaining to Article 370.
Refer to Article 370 (3) of the Indian Constitution for a resolution to repeal Article 370.
The Jammu and Kashmir (Reorganisation) Bill, 2019, is based on Article 3 of the Indian Constitution.
Bill to amend the Jammu and Kashmir Reservation Act, 2019.
Background of Article 370:
In J&K, the Parliament had limited residuary legislative powers. This included legislation to deter terrorism and secessionist movements, as well as taxation on international and domestic travel and communication.
Changes that are significant:
The President had utilised his Article 370 authority to substantially change the clause, extending to Kashmir all Central laws, instruments, and treaties. The radically amended Article 370, on the other hand, will remain on the books.
While Jammu and Kashmir's Union Territory will have a legislature, Ladakh's will not.
The president's order effectively allows the whole Constitution, including all amendments, exclusions, and revisions, to apply to the state of Jammu and Kashmir.
The Bill gives the Lieutenant Governor of the proposed Union Territory of Jammu and Kashmir broad powers and makes it the "obligation" of the Union Territory's Chief Minister to "convey" all administrative decisions and legislative initiatives to the LG.
The new Union Territories of J&K and Ladakh would be governed by all J&K state and federal laws.
Within a year, the assets and liabilities of J&K and Ladakh would be apportioned based on a Central Committee's suggestion.
Employees of state-owned enterprises and autonomous bodies would be able to keep their jobs for another year until their allocations were established.
The Centre will be in charge of the police and public order.
In the provison to clause (3) of Article 370, the word "Constituent Assembly" is changed to "Legislative Assembly" by the notification.
The Union Territory of Jammu and Kashmir has been given the following legislative powers:
Except for the subjects "public order" and "police," which will remain in the realm of the Centre vis-à-vis the LG, the Legislative Assembly may pass legislation for the entire or any part of the Union Territory of Jammu and Kashmir on any of the items specified in the state list.
In the event of a conflict between laws passed by Parliament and laws passed by the Legislative Assembly, the earlier law will take precedence, and the law passed by the Legislative Assembly will be nullified.
The Chief Minister's job will be to report to the L-G any Council of Ministers decisions relating to the administration of the Union Territory's affairs, as well as legislative initiatives, and to provide such information relating to the administration of affairs as the L-G may require.
The Lieutenant Governor's role and powers are as follows:
The Union Territory of Jammu and Kashmir and the Union Territory of Ladakh will share a Lieutenant Governor, according to the bill.
L-G appointment in Ladakh: Article 239 requires the President to nominate the L-G. Because the Union Territory will not have a Legislative Assembly, the L-G will be aided by advisors selected by the Centre.
In the Union Territory of Jammu and Kashmir, the L-G shall "act in his discretion" on issues that lie outside the scope of the Legislative Assembly's powers, in which he is needed to execute any judicial functions, and/or matters relating to All India services and the Anti-Corruption Bureau.
The L-G will appoint the Chief Minister, as well as other ministries, with the assistance of the CM. Ministers and the CM will be sworn in by the L-G, who will also administer the oath of office and confidentiality.
The L-G will have the authority to enact ordinances that will have the same force and effect as a Legislative Assembly act that has been assented by the L-G.
Impact:
The introduction of the proposed Reorganisation Bill also demonstrates that the 1954 Order's lengthy reign has come to an end. "No Bill providing for extending or decreasing the size of the State of Jammu and Kashmir, or altering the name or boundary of that State shall be submitted in Parliament without the permission of the Legislature of that State," according to the 1954 Order. The State Legislature's power to grant prior permission is no longer in effect. The Centre now has a free hand to introduce the Reorganisation Bill.
With the repeal of the 1954 Order, the State Legislature's capacity to legislate is gone, and Parliamentary rules, including reservation laws, will apply to Jammu and Kashmir as they do to the rest of the country.
The elimination of "positive discrimination" and the "chasm" between inhabitants of J&K and people of other parts of the country, according to the authorities.
The repeal of the 1954 Order also nullifies a clause inserted into Article 352. The Order stated that no proclamation of emergency on the grounds of "only internal unrest or impending danger" would be valid in the State unless the State administration agreed.
The rationale for this action is as follows:
Rather than being a basis for a merger, Article 370 has stopped J&K from merging with India.
On the grounds of gender, class, caste, and place of origin, Article 370 was deemed discriminatory.
After Article 370 is repealed, avenues to private investment in J&K will open, increasing the potential for development in the state.
Increased investment would result in more jobs being created and the state's socioeconomic infrastructure being improved.
The opening of land purchases would attract investments from both private persons and big corporations, boosting the local economy.
Criticism:
The government's method for forcing its strict ideological position on Jammu and Kashmir through the Rajya Sabha was rushed and covert. This decision will strain India's social fabric, not just because of its impact on Jammu and Kashmir, but also because of the implications for federalism, parliamentary democracy, and diversity.
The passage of far-reaching legislation such as dismembering a state without previous deliberation has set a new low.
Executive overreach has characterised the entire process of getting Article 370 of the Constitution effectively repealed.
Without any legislative input or representative participation from the people, a supposed procedure to change the constitutional status of a critical border state has been completed.
Challenges to come:
The move will be contested in court on procedural grounds and, more importantly, on the grounds that it undermines a key aspect of the 1947 agreement between Delhi and Srinagar.
The President's power under Article 370 was utilised both to draught an enabling provision and to use it immediately to change the Order, effectively eliminating the State Assembly's involvement.
While the Supreme Court recognised the President's right to'modify' constitutional provisions in applying them to J&K in 1961, it is debatable whether this power can be used to make such a drastic change: a functioning state has now been demoted and divided into two Union Territories.
However, once the security cordon is lifted from the State, the real test will be on the streets of Srinagar, Jammu, and Delhi.
What was unseemly was the refusal to consult with major party leaders; former Chief Ministers would not have been treated so casually in any other state.
Conclusion:
J&K's special status was supposed to come to an end, but only if its citizens agreed.
The unexpected move by the Centre disenfranchised them on a topic that directly affected their lives and feelings.
Furthermore, it demonstrates a callous disrespect for democratic principles because this was done after a large military build-up, the house arrest of senior political leaders, and the communications lockdown.
Whatever its motivation for allowing full integration of Jammu and Kashmir with India, the move to change the status of the state could have unanticipated and severe implications.