Modi-Shah’s Kashmir Blueprint: Decoding the J&K Bill

In addition to their move to effectively render Article 370 inoperative, the Modi government on Monday, 5 August, also introduced a Bill in Parliament to bifurcate the State of Jammu and Kashmir into two Union Territories.

The Jammu and Kashmir Reorganisation Bill 2019 was passed in the Rajya Sabha, and looks set to be passed in the Lok Sabha before the current session of Parliament ends on 7 August.

While on the face of it the Bill may seem like a fairly straightforward piece of legislation, it is part of a complex manoeuvre by the government, predicated on the order against Article 370, and with far-reaching implications for the Valley and its people.

Here’s how the Prime Minister and Home Minister Amit Shah have sought to implement their longstanding objective, and the changes it will bring to the (for a little while longer) State of Jammu and Kashmir.

HOW HAS THE GOVERNMENT JUSTIFIED THE CHANGES?

The Bharatiya Janata Party (BJP) made the revocation of Article 370 one of the planks of its manifesto in the 2019 elections, and although they had made a similar promise back in 2014, this time they always looked like they would get their way.

The presidential order announced before the Bill was introduced played a key role in making this possible, as by extending the whole Constitution to Jammu and Kashmir (which had been restricted through the mechanism of Article 370 previously), it was possible to designate J&K as a Union Territory. This order has also formed the basis of a proposed resolution for Parliament to endorse changes to Article 370.

The Statement of Objects and Reasons of the Bill provides different reasons for why Ladakh on the one hand and Jammu and Kashmir on the other are to be designated as Union Territories.

• For Ladakh, the stated rationale is that this has been a “long pending demand of people of Ladakh, to give it the status of a Union Territory to enable them to realise their aspirations.”
• However, for Jammu and Kashmir, the reason provided by Shah is “the prevailing internal security situation, fuelled by cross border terrorism in the existing State of Jammu and Kashmir.” This is likely to become extremely controversial as it is being used as a justification to displace Jammu and Kashmir in the federal pecking order, setting a dangerous precedent.

HOW WILL THE TWO UNION TERRITORIES BE ORGANISED?

• The Union Territory of Ladakh (UTL) will comprise the districts of Kargil and Leh, while the rest of the existing State of Jammu and Kashmir will be part of the new Union Territory of Jammu and Kashmir (UTJK). You can see what the projected territories of both UTs are in the map below:

• The UTL will not have its own legislature, but the UTJK will have its own Legislative Assembly. This is of course one of the key differences between States and UTs – all States have their own Legislative Assemblies, which draft laws for them, but UTs normally don’t, instead being administered by the President.
• UTJK joins Puducherry and Delhi as the only UTs with their own legislatures. UTL will follow the same system as Chandigarh and the rest of the Union Territories in India.
• The Governor of Jammu and Kashmir (currently Satya Pal Malik) will be designated as the Lieutenant Governor of both UTL and UTJK.
• The existing State of J&K’s four Rajya Sabha representatives will now represent the UTJK. UTL will not have any representatives in the Upper House of Parliament.
• UTJK will have five representatives in the Lok Sabha, while Ladakh gets one. The existing State of J&K currently has six MPs in the Lok Sabha.
• A new delimitation of constituencies has been effected for the Lok Sabha and for the new Legislative Assembly of UTJK, which can be found in the schedules to the Bill. This also fulfils a longstanding policy objective of Modi and Shah.

HOW WILL THE GOVERNMENT OF THE UNION TERRITORY OF JAMMU & KASHMIR OPERATE?

The model for how the UTJK will operate is, it would seem, Puducherry, rather than Delhi. Article 239A of the Constitution will apply to UTJK to allow the setting up of a Legislative Assembly and a Council of Ministers. The UTJK will not have a Legislative Council, ie, there is no Upper House.

THE LEGISLATIVE ASSEMBLY

• The Legislative Assembly of the UTJK will have a total of 107 seats, four less than the number of seats in the old State Assembly. Twenty four of these seats relate to territories in Pakistan Occupied Kashmir, and will remain vacant till their occupation over the region ceases – this is the same position as things currently stand. Effectively, therefore, 83 seats will be up for election the new legislature.
• Two women members may be nominated by the Lieutenant Governor if he/she thinks women are not adequately represented, a continuation of the existing policy.
• A key new development is that there will now be reservations for Scheduled Castes and Scheduled Tribes in the new Legislative Assembly. This appears to be part of a broader trend of extending reservations to the region which apply across the rest of the country – a separate Bill was also introduced on the day to extend the 10 percent quota for economically weaker sections, for instance – and is another blow to J&K’s special status.
• Members of the new UTJK Legislative Assembly will have a term of five years, as compared to the six-year term enjoyed by MLAs in the old government.

THE COUNCIL OF MINISTERS AND THE LIEUTENANT GOVERNOR

• The UTJK will have a Council of Ministers headed by a Chief Minister, to aid and advise the Lieutenant Governor.
• The Supreme Court in 2018 had held that the ‘aid and advice’ of such a Cabinet would be binding on the LG, and that should be the case here as well, though the Centre has been careful to carve out a lot of discretion for the LG, presumably to avoid the troubles they have had with Arvind Kejriwal’s Delhi government.
• The Bill specifies the following specific issues where the LG’s discretion can override the Assembly: All India Services and the Anti-Corruption Bureau, both of which have been sticking points with the Delhi government and continue to be argued in the courts.
• The LG also has the power to withhold assent from Bills passed by the Legislative Assembly, or to reserve them for consideration of the President. This works differently from the LG of Delhi’s power to refer disputes to the President, as the LG here has more discretionary power.

WHAT LAWS WILL BE APPLICABLE TO THE NEW UNION TERRITORIES?

• Parliament will have full powers to make laws for both Union Territories insofar as the Centre can make laws for Union Territories in general.
• The UTJK’s Legislative Assembly can draft laws on all matters in the State List of the Seventh Schedule of the Constitution (except public order and police) as well as the Concurrent List. However, certain aspects of these, for instance on laws relating to trade and commerce, are restricted for UTs, and these restrictions apply to UTJK and UTL.
• Of course, the biggest change that the Bill brings about – facilitated by the changes to Article 370 – is the application of laws drafted by Parliament and applicable across the rest of the country. The fifth schedule to the Bill lists 106 Central Acts (such as the RTI Act) which are now applicable in Jammu and Kashmir, while 153 State Acts are listed to be repealed.
• Major changes will include the application of Indian Penal Code, which replaces Kashmir’s Ranbir Penal Code, as well as application of the Transfer of Property Act 1882, which replaces a local law for the same that has been one of the fundamental aspects of Kashmir’s special status, as guaranteed by Article 35A of the Constitution. Codified Central personal laws, including the Hindu Marriage Act and the Dissolution of Muslim Marriage Act, will also now apply, which is also likely to be a cause for controversy.
• Certain provisions of the Constitution that were previously not applicable to Jammu and Kashmir will also now be applicable there, such as Article 360 (declaration of a ‘Financial Emergency’). President’s Rule can now be directly imposed in both new UTs – previously in J&K there first had to be a period of Governor’s Rule, and only then could President’s Rule take place.
• The separate passports of citizens from Jammu and Kashmir will no longer be valid, and the Constitution of J&K has been effectively rendered inoperative as well.

IS ALL OF THIS LEGALLY VALID?

The manner in which these changes to Jammu and Kashmir have been introduced has raised a number of questions regarding the process, and there could well be grounds to challenge the Bill if it is passed by Parliament.

First off, the entire Bill is only possible because of the presidential order on Article 370. Without this, the slate of Central Acts applied to the new UTs would not be possible, for instance. Yet the presidential order itself looks liable to challenge for failing to comply with the spirit of Article 370.

Furthermore, the nature of Jammu and Kashmir is intrinsically tied to what its people and its representatives agreed to at the time of acceding to India. In addition to the Instrument of Accession, there was the Delhi Agreement of 1952 and the deliberations of the J&K Constituent Assembly, none of which envisaged J&K as a Union Territory.

The whole idea was for it to be a state with special status, so it is difficult to see how this new iteration of J&K is in consonance with any of that. This could lead to a challenge against the Bill for attacking the federal structure of the country and for violating what does appear to be part of the Basic Structure of the Constitution.

And then of course there is the fact that none of this has been done with even a semblance of consent of the people of J&K. Instead, local leaders have been detained, there is a total communications blackout, and military forces were rushed into the region on alternative pretexts.

(CORRECTION: The video above mentions that Jammu & Kashmir used to have seven Lok Sabha seats based on the number of MPs during the previous Lok Sabha term. However, this included a bye-election result, so the number of Lok Sabha MPs was six.)