By Ms. Tanya Singla, Batch of 2023, UILS, Panjab University
At dusk of 3 June 1947, after the announcement of Clement Richard Atlee, the then Prime minister of the United Kingdom, to “assembled benches of the House of Commons”, Indians realised the inevitability of Partition. Prime Minister Atlee, on that day, was giving voice to what is famously known as ‘Mountbatten Plan’ which, among other things, provided for the bifurcation of British India into India and Pakistan as two sovereign countries and the erstwhile princely states with carte blanche either to choose any of the countries or to remain sovereign. Thence, the integration of princely states became the first challenge for India when “at the stroke of the midnight hour” on August 15, 1947, it attained independence. And out of all the princely states, the accession of Kashmir was the most onerous. The Muslim-majority state of Kashmir was at that time under the rule of Maharaja Hari Singh, a tenacious Hindu ruler, who was keen to retain the independent status for his state. But this ambition of Maharaja was too high, for Pakistan, to countenance, which itself was eager to merge Kashmir with its own territory. In pursuance of its interest in annexing Kashmir, Pakistan launched and abetted a series of blitzkriegs comprising ‘Operation Gulmarg’, ‘No Tax Agitation’ and ‘Pakhtoon Tribesmen Attack’ which made Maharaja jittery. All this while, India was waiting in the wings. The hapless Maharaja then turned to India and agreed to accession in return for military help. Indian military drove back the Pakistani infiltrators in no time and Maharaja signed the ‘Instrument of Accession’ (IoA) with India on 26th October, 1947.
But the story did not end there, Kashmir’s accession to India, apart from the military help, was also conditioned on the fact that the Union of India will maintain its autonomy. For instance, the schedule appended to IoA executed by Maharaja clearly limits the power of the Union Legislature to make laws for the state except in the cases of Defence, External Affairs and Communications. Also, it was agreed that only those laws of the Union Legislature will be applicable to the state, which would be approved by the State Assembly.
With this background in mind and to comply with the conditions of accession, Article 370 was incorporated in Part XXI of the Indian Constitution. Article 370, which allowed the state of Jammu and Kashmir to have its own constitution, flag and the freedom to make laws, was what we can call as the heart and soul of the state of Jammu and Kashmir.
J&K REORGANISATION ACT, 2019
The heart and soul of state of Jammu and Kashmir has now been scrapped by the Constitution (Application to Jammu and Kashmir) Order, 2019 (C.O. 272) issued by the President of India on August 5, 2020. While doing so the minister of home affairs, at the time of speaking in Rajya Sabha, stated that the Article has been responsible for “increased corruption” and less development of the state and eulogised the presidential order as an emendation of the “historic blunder”. This defenestration of Article 370 was followed by the introduction and enactment of Jammu and Kashmir Reorganisation Act, 2019 which has now been in effect since October 31, 2019.
WHAT HAS BEEN CHANGED?
The pièce de résistance of the Act is its provision of bifurcation of the erstwhile state of Jammu and Kashmir into Union Territory of Jammu and Kashmir and that of Ladakh. This is the first instance in Indian political history since the categorisation of states ended in 1956 that a state has been turned into UT though the UTs have been turned into states in the past. As per the bifurcation created under this act, now the UT of Ladakh comprises the districts of Leh and Kargil while the UT of Jammu and Kashmir comprises the rest of the former state of Jammu and Kashmir.
The Act does not provide for any legislative assembly for the UT of Ladakh implying that all the decision-making power pertaining to the UT rests with the Union government. On the contrary, section 13 of the act provides for the applicability of Article 239A to the UT of Jammu and Kashmir. This Article talks about the creation of a local legislature in cases of certain UT. Hence, under sub section 2 of section 14, it has been stated that there shall be a legislative assembly for the UT of Jammu & Kashmir.
The tenure of the Assembly has been fixed at 5 years as opposed to that of 6 years for the Legislative Assembly of the erstwhile state of J&K and the number of total seats in the Assembly has been fixed at 107. Out of these 107 seats, 24 are to be left vacant for the area of J&K under the occupation of Pakistan until this occupation ceases to exist, which implies that only 83 seats will be up for elections. Also, under sub-section 6 of Section 14 of the Act, some seats in the Assembly shall be reserved for the Scheduled Castes and Scheduled Tribes which was not the case earlier with the Legislative Assembly of the ‘state’ of Jammu & Kashmir. Furthermore, the Legislative Council of the erstwhile state of Jammu & Kashmir has been abolished by section 57(1) of the Act.
Section 32 of the Act empowers the Assembly to make laws on subjects enumerated in the State list except for the matters related to ‘Public Order’ and ‘Police’ and all the 52 subjects enumerated in Concurrent List.
The local bureaucracy, J&K Public Services Commission, Police and Anti-Corruption Bureau has been directly or indirectly put under the control of the Ministry of Home Affairs at the centre. The schedule 5 appended to the Act carries a laundry-list of 106 Central laws which now apply to the UT of Jammu & Kashmir and Ladakh and the schedule also carries a list of 153 State laws which now stand repealed.
This application of Central laws and the abnegation of State laws are conducive to the scads of socio-legal implications. For instance, Jammu and Kashmir had its own Ranbir Penal code(RPC) and Jammu & Kashmir CrPC, which albeit incorporated the provisions similar to the ones articulated in Indian Penal Code and central CrPC but the legislative emendations and the precedents set by the judiciary could not be automatically applied in the erstwhile state of Jammu & Kashmir. With RPC and J&K CrPC now repealed and replaced by IPC and central CrPC, this is going to be changed now. For example: the decision of Supreme Court to decriminalise consensual homosexual acts under Section 377 of IPC will now hold good in the UTs of Jammu & Kashmir and Ladakh. Similar is the case with personal laws and the 2005 amendment to Hindu Succession Act which granted equal inheritance rights to women will now be applicable here. Also, the state’s own 2009 law of RTI has now been replaced with the central RTI Act, 2005. Another important implication pertains to the property rights in the erstwhile state of J&K. With the restrictions imposed by Section 139 of J&K Transfer of Property Act gone now, people from anywhere in the country can buy property in the UTs. This will have a major impact on the demography of the erstwhile state of J&K.
WHAT DO THE EXPERTS SAY?
The aficionados are divided and have dichotomous views on the validity and rectitude of the government’s move to abrogate Article 370 and to enact J&K Reorganization Act. Those who favour the move believe it to be constitutionally valid and not illegal and argue that Article 370 was meant to be abrogated as it had been incorporated under the heading of ‘Temporary, Transitional and Special Provisions’. They also believe that these moves of the government have facilitated the ‘real integration’ of the former state of Jammu and Kashmir with the rest of India. They have hailed these moves as the correction of a historical faux pas. Also, these moves have been highly embraced and welcomed by those who considered Article 370 a stumbling block in the progress of Jammu and Kashmir.
On the other hand, there are people to whom these governmental moves are complete anathema. They consider these actions of the government a ‘blatant disregard to the letter and spirit of the Constitution’. Their opinion, to a considerable extent, is based on the unilateralism displayed by the government while arriving at this decision. The popularly elected leaders instead of being consulted were put under house-arrest prior to the presidential order dated August 05, 2019. Apart from this, the vitriol of the Order and the Act is also based on how they were unfolded. With the educational institutions closed, telephone and internet services down and the state-wide communications scrapped, the government has been accused of unleashing the reign of human rights abuses.
THE CURRENT SCENARIO
As per the provision, the erstwhile state of Jammu and Kashmir now stands bifurcated into Union Territories of Jammu & Kashmir and Ladakh. The UT of Ladakh now has R.K. Mathur, its first and incumbent Lieutenant Governor and has one seat in the House of People. The UT of Jammu & Kashmir has G.C. Murmu as its Lieutenant Governor and has five seats in the House of People.
Meanwhile, the petition filed by advocate M.L. Sharma (Manohar Lal Sharma v. Union of India) on August 06, 2019 seeking the revocation of C.O. 272 and Jammu and Kashmir Reorganisation Act, 2019 is pending in Supreme Court before the five-judge bench led by Justice N.V. Ramana to review the constitutionality of the said order and legislation. The petition poses C.O. 272 as the ‘colourable exercise’ of the legislative power for its faulty interpretation of ‘Constituent Assembly of J&K’ as ‘Legislative Assembly of J&K’. It also contends that Article 370 is irrevocable since the constitutional condition of such recommendation by Constituent Assembly of J&K is not possible due to its non-existence. As regards to J&K Reorganisation Act, the petition is skeptical of its constitutionality and contends that Article 3 of the Constitution does not empower the Parliament to demote the position of federal units, i.e. from ‘states’ to ‘union territories’. It also sees the concerned legislation as a clout to the federal principles of Indian democracy as also to the fundamental rights of the citizens of J&K by denying them any say in the matter.
Also, the restrictions imposed in the erstwhile state in the wake of abrogation of Article 370 have not yet been completely lifted. Ergo, the various fundamental rights of the citizens to move freely, to speak and express themselves, etc. are highly being put paid to. Some of them like the internet speed restrictions are continued ostensibly due to security reasons but the problem is that the restrictions in place are quite disproportionate. What has been more unfortunate is that even the apex court is not performing its job as a sentinel on qui vive to protect the fundamental rights of the citizens of J&K. In Anuradha Basin v. Union of India, where the petition was filed for the restoration of 4G Internet network to J&K, the court, instead of reviewing the matter itself, asked the executive to review its order. By doing this, the court did not only lose the opportunity to make good the loss the people of J&K has borne but also come a cropper in doing its job by delegating it to the executive.
Inter alia, the Union of India has introduced the fresh rules of domicile in the newly-formed Union Territories which are now becoming the bone of contention between local leaders and the central government.
All we have now are the arguments and counter-arguments. It is left on time to decide whether the steps taken by the Union government were the alteration of a historical blunder or the creation of a new one.
[Disclaimer- The views expressed in the article are personal views of the author]
Ms. Tanya Singla, UILS, Panjab University
The author may be reached at email@example.com. [Edited by Ms. Achintaya Soni(Student Editor), Ms. Pragya Dixit(Content Administrator), Mr. Nikhil Dubey(Junior Editor), Mr. Advait Shukla(Senior Editor)]
Yasmin Khan, The Great Partition: The Making of India and Pakistan, 2007.
 Stuart Roberts, A Tryst With Destiny, University of Cambridge, (May 24, 2020 at 09:21 PM) https://www.cam.ac.uk/files/a-tryst-with-destiny/index.html#a-tryst-with-destiny-1
 India Today Web Desk, J&K underdeveloped because of Article 370, Amit Shah tells RajyaSabha, India Today, (May 25, 2020 at 11:40 PM) https://www.indiatoday.in/india/story/amit-shah-rajya-sabha-article-370-1577516-2019-08-05
 The Jammu And Kashmir Reorganisation Act, 2019 No. 34 Of 2019 http://egazette.nic.in/WriteReadData/2019/210407.pdf
 Is the Division of J&K Unconstitutional? Here’s What a Petition in SC Says, The Wire, https://thewire.in/law/article-370-amendment-reorganisation-jammu-kashmir-unconstitutional-violate-fundamental-rights-petition-supreme-court