JK REORGANIZATION ACT 2019

The Jammu and Kashmir Reorganisation Act, 2019 is an act of the Parliament of India. It contains provisions to reconstitute the state of Jammu and Kashmir into two union territories, one to be eponymously called Jammu and Kashmir, and the other Ladakh, on 31 October 2012. A bill for the act was introduced by the Minister of Home Affairs, Amit Shah, in the Rajya Sabha, on 5 August 2019 under the leadership of Prime Minister Narendra Modi. The bill was passed in Rajya Sabha the same day and was passed by the Lok Sabha on 6 August 2019. It received the President’s assent on 9 August 2019

 

The introduction of the bill was preceded by a presidential order under Article 370 of the Indian constitution that revoked Jammu and Kashmir’s special status, and mandating, inter alia, that all the provisions of the Indian Constitution would be applicable to Jammu and Kashmir. This enabled the parliament to enact the legislation.

Background

Article 370 of the Indian constitution gave Jammu and Kashmir special status. In contrast to other states of India, Jammu and Kashmir had its own constitution and administrative autonomy. In particular, inter alia, Indian citizens from other states could not purchase land or property in Jammu and Kashmir.

The Bharatiya Janata Party came to power in the 2014 Indian general election and had included in their 2019 election manifesto the revocation of Article 370 of the Constitution of India. The State had been first under Governor’s rule and then under President’s rule since 20 June 2018,after the coalition government headed by Mehbooba Mufti lost support from the Bharatiya Janta Party.
Prior to the introduction of the bill and the revocation of the state’s special status, the central government locked down the Kashmir valley, with a surge in security forces, imposition of Section 144 preventing assembly, and placing political leaders under house arrest. 35,000 paramilitary troops were deployed to Indian-administered Kashmir, prior to which a warning was issued to annual Hindu pilgrims and tourists citing a terror threat and imminent attacks by militants. The imposing of restrictions included the blocking of internet and phone services. Politicians, such as former Jammu and Kashmir chief ministers Omar Abdullah and Mehbooba Mufti were put under house arrest. The moves were followed by the revocation of the state’s special status without the consent of the state legislature, which had ceased to exist owing to President’s rule in the state.

Statutory provisions

The act reorganises the state into two union territories, namely the eponymous union territory of Jammu and Kashmir, and that of Ladakh. While the former will have a legislative assembly, Ladakh will be administered by a lieutenant governor alone. The union territory of Ladakh will include the districts of Leh and Kargil, while all other districts will be accorded to Jammu and Kashmir. Out of the six seats allocated to the state of Jammu and Kashmir, one will be allocated to Ladakh and five will be accorded to the Jammu and Kashmir union territory. The High Court of Jammu and Kashmir will function as the High Court for both the union territories.

The act provides that the administration of the Jammu and Kashmir will be as per Article 239 of the Indian constitution. Article 239A, originally formulated for the union territory of Puduchery, will also be applicable to Jammu and Kashmir. A lieutenant governor appointed by the President will Administer the union territory of Jammu and Kashmir, which will have a legislative assembly of 107 to 114 members, with tenure of five years. The legislative assembly may make laws for any of the matters in the state list except “public order” and “police”, which will remain as the law-making powers of the union government. A Council of Ministers including a Chief Minister will be appointed by the lieutenant governor from the members of the legislative assembly, with the role to advise the lieutenant governor in the exercise of functions in matters under the legislative assembly’s jurisdiction. In other matters, the lieutenant governor is empowered to act in his own capacity, who will also have the power to promulgate ordinances having the same force as acts enacted by the legislature.

Enactment

The bill was introduced by the Minister of Home Affairs Amit Shah in the Rajya Sabha on 5 August 2019. The introduction of the bill was preceded by a Presidential Order under the Article 370 of the Indian Constitution, which superseded the 1954 Presidential Order. It made, inter alia, all the provisions of the Indian constitution applicable to the State of Jammu and Kashmir. The 1954 Order had a provision to the Article 3 of the Indian constitution, stating that the Union would not alter the area, name and the boundaries of the State of Jammu and Kashmir. Its revocation paved the way for the introduction of Reorganisation Bill.

Rajya Sabha

The bill caused pandemonium in the Rajya Sabha. Two members of the Jammu and Kashmir People’s Democratic Party (PDP) tore up copies of the Indian constitution in protest, following which they were suspended from the House; 13 members of the Trinamool Congress walked out of the House; and 6 members of Janata Dal United (allied to ruling BJP) boycotted the voting. However, the bill acquired the support of Bahujan Samaj Party, YSR Congress, Telugu Desam Party and the Aam Admi Party. Along with the 107 members of the ruling National Democratic Alliance, the number of supporting parliamentarians totalled to 117. The bill was passed by the Rajya Sabha with 125 members in favour and 61 members against.

Lok Sabha

The Bill was introduced in the lower house of Indian parliament, Lok Sabha on 6 August 2019. The All India Trinamool Congress and Janata Dal (United) walked out from the house, while Indian National Congress, Nationalist Congress Party and Samajwadi Party opposed the bill; Bharatiya Janata Party, Shiv Sena, Biju Janata Dal, YSR Congress Party, Telangana Rashtra Samithi, Telugu Desam Party, Shiromani Akali Dal and Bahujan Samaj Party supported it. The bill was passed by the house with 370 votes in favour and 70 votes against.

Assent and publication

The bill received the assent of the president on 9 August 2019, subsequent to which it was published in the Gazette of India. A notification published on the same day provides for the union territories to come into effect from 31 October 2019.

ABOUT ARTICLE 370

Article 370 of the Indian Constitution is a ‘temporary provision’ which grants special autonomous status to Jammu & Kashmir. Under Part XXI of the Constitution of India, which deals with “Temporary, Transitional and Special provisions”, the state of Jammu & Kashmir has been accorded special status under Article 370. All the provisions of the Constitution which are applicable to other states are not applicable to J&K. According to this article, except for defence, foreign affairs, finance and communications, Parliament needs the state government’s concurrence for applying all other laws. Thus the state’s residents live under a separate set of laws, including those related to citizenship, ownership of property, and fundamental rights, as compared to other Indians.

Indian citizens from other states cannot purchase land or property in J&K. . Under Article 370, the Centre has no power to declare financial emergency under Article 360 in the state. It can declare emergency in the state only in case of war or external aggression. The Union government can therefore not declare emergency on grounds of internal disturbance or imminent danger unless it is made at the request or with the concurrence of the state government.

Under Article 370, the Indian Parliament cannot increase or reduce the borders of the state. The Jurisdiction of the Parliament of India in relation to Jammu and Kashmir is confined to the matters enumerated in the Union List, and also the concurrent list. There is no State list for the State of Jammu and Kashmir.

As the same time, while in relation to the other States, the residuary power of legislation belongs to Parliament, in the case of Jammu and Kashmir, the residuary powers belong to the Legislature of the State, except certain matters to which Parliament has exclusive powers such as preventing the activities relating to cession or secession, or disrupting the sovereignty or integrity of India.

• The power to make laws related to preventive detention in Jammu and Kashmir belong to the Legislature of J & K and not the Indian Parliament. Thus, no preventive detention law made in India extends to Jammu & Kashmir.

• Part IV (Directive Principles of the State Policy) and Part IVA (Fundamental Duties) of the Constitution are not applicable to J&K.

J&K After 31st October 2019

  • No Dual Citizenship
  • Central Laws can directly apply
  •  No Separate Laws for J&K
  •  No two flags
  • Elections every five years
  • Centre can declare financial emergency under Article 370
  • Police’ and ‘Public Order’ will be managed by the Centre
  •  Jammu & Kashmir will have a legislative assembly like Puducherry.
  • Ladakh will be administered by Lieutenant Governor like Chandigarh The High Court of Jammu & Kashmir’ will function as the High court for both the Union Territories.
  • J&K will have its own goods and services tax (GST) while UT of Ladakh will be governed by the Union Territory GST Act.

SUMMARY OF THE LEGISLATION

  • PART-I (Section 1 & 2): PRELIMINARY
  • PART II (Section 3-7): REORGANISATION OF THE STATE OF JAMMU AND KASHMIR
    PART III (Section 8 -57): REPRESENTATION IN THE LEGISLATURES
  • PART IV (Section 58): ADMINISTRATION OF UNION TERRITORY OF LADAKH
  • PART V (Section 59-64): DELIMITATION OF CONSTITUENCIES
  • PART VI (Section 65-66): SCHEDULED CASTES AND SCHEDULED TRIBES
    PART VII (Section 67-74): MISCELLANEOUS AND TRANSITIONAL PROVISIONS
  • PART VIII (Section 75-78): HIGH COURT
  • PART IX (Section 79): ADVOCATE-GENERAL OF UNION TERRITORY OF JAMMU AND KASHMIR
  • PART X (Section 80-83): AUTHORISATION OF EXPENDITURE AND DISTRIBUTION OF REVENUES
  • PART XI (Section 84): APPORTIONMENT OF ASSETS AND LIABILITIES
  • PART XII (Section 85-87): PROVISIONS AS TO CERTAIN CORPORATIONS AND ANY OTHER MATTERS
  • PART XIII (Section 88-93): PROVISIONS AS TO SERVICES
  • PART XIV (Section 94-103): LEGAL AND MISCELLANEOUS PROVISIONS
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