Jammu & Kashmir Reorganisation Act, 2019

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Context: The Jammu and Kashmir Reorganisation Bill, 2019 was introduced in Rajya Sabha on 5 August 2019. The bill was passed by both houses on the same day. 

Introduction: The Jammu and Kashmir Reorganisation Act, 2019, is an act of the Parliament of India. It contains provisions to reorganize the State of Jammu and Kashmir into two union territories, one to be called Jammu and Kashmir, and the other Ladakh. The introduction of the Bill was preceded by a Presidential Order under Article 370 of the Indian constitution declaring, inter alia, that all the provisions of the Indian Constitution would be applicable to Jammu and Kashmir. Hence, Article 370 including 35A were abrogated. This enabled the Indian Parliament to enact legislation that would rearrange the State's organization.

Features: 

  • Reorganization of Jammu and Kashmir: The Bill reorganizes the state of Jammu and Kashmir into:
    (i) the Union Territory of Jammu and Kashmir with a legislature, and will comprise the remaining territories (except Leh and Kargil districts) of the existing state of Jammu and Kashmir.
    (ii) the Union Territory of Ladakh which will be without a legislature comprising Kargil and Leh districts.   
  • Legislative Assembly of Jammu and Kashmir: The total number of seats in the Assembly will be 114.  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 Legislative Assembly may make laws for any part of the Union Territory of Jammu and Kashmir related to:
    (i) any matters specified in the State List of the Constitution, except “Police” and “Public Order”, and
    (ii) 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.    
  • Lieutenant Governor: The Union Territory of Jammu and Kashmir and the Union Territory of Ladakh will be administered by the President, through administrators appointed by him is known as the Lieutenant-Governors.  
  • Council of Ministers: The Union Territory of Jammu and Kashmir will have a Council of Ministers of not more than ten percent 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 Chief Minister will communicate all decisions of the Council to the Lieutenant Governor. 
  • High Court: 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. 
  • Legislative Council: The Legislative Council of the state of Jammu and Kashmir will be abolished.  Upon dissolution, all Bills pending in the Council will lapse.   
  • Advisory Committees: The central government will appoint Advisory Committees, for various purposes, including:
    (i) distribution of assets and liabilities of corporations of the state of Jammu and Kashmir between the two Union Territories,
    (ii) issues related to the generation and supply of electricity and water, and
    (iii) 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. 
  • The extent of laws: The Schedule lists 106 central laws that will be made applicable to Union Territories of Jammu and Kashmir and Ladakh on a date notified by the central government.  These include the Aadhaar Act, 2016, the Indian Penal Code, 1860, and the Right to Education Act, 2009. 
    Further, it repeals 153 state laws of Jammu and Kashmir. 
    In addition, 166 state laws will remain in force, and seven laws will be applicable to amendments.  These amendments include lifting of prohibitions on the lease of land to persons who are not permanent residents of Jammu and Kashmir.

What was Article 370?

  • Article 370 of the Constitution of India stated that Parliament of India and the Union government jurisdiction extends over limited matters with respect to the State of Jammu and Kashmir, and in all other matters not explicitly vested in Federal government, actions have to be supported by the state legislature.
  • Article 370 allowed Jammu & Kashmir to have a separate constitution, a state flag, and autonomy over the internal administration of the state.
  • Also, unlike other states, residual powers were vested with the state government.
  • Till 1965, the head of state in Jammu and Kashmir was called Sadr-i-Riyasat (Head of State) whereas in other states, the title was Governor, and the head of government was called Prime Minister in place of Chief Minister in other states.

Because of these constitutional provisions, the State of Jammu and Kashmir enjoyed a special but temporary autonomous status as mentioned in Part XXI of the Constitution of India. 

The original text of Article 370:

 Temporary provisions with respect to the State of Jammu and Kashmir 

  1.  Notwithstanding anything contained in this Constitution,-

    (a)
    the provisions of article 238 shall not apply now in relation to the state of Jammu and Kashmir;

    (b)
    the power of Parliament to make laws for the said state shall be limited to—
    (i) those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for that State; and
    (ii) such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify.

    (c)
    the provisions of article 1 and of this article shall apply in relation to that State;

    (d)
    such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify:
    -Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub-clause (b) shall be issued except in consultation with the Government of the State:
    -Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government.
  2.  If the concurrence of the Government of the State referred to in paragraph (ii) of sub-clause (b) of clause (1) or in the second provision to sub-clause (d) of that clause be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon.
  3. Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify:
    Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.

Special provisions for Jammu & Kashmir under Article 370: 

Before Now
  • Special powers exercised by J&K.
  • No special powers now.
  • Dual citizenship
  • Single citizenship.
  • Separate constitution and flag for J&K.
  • Tricolour will be the only flag.
  • Article 360 (Financial Emergency) not applicable.
  • Article 360 will be applicable.
  • No reservation for minorities such as Hindus and Sikhs.
  • Minorities will be eligible for a 16% reservation. 
  • Indian citizens from other states cannot buy land or property in Jammu & Kashmir. 
  • People from other states will now be able to buy land or property in J&K
  • RTI not applicable.
  • RTI will be applicable.
  • Duration of the legislative assembly for 6 years
  • The duration of the Legislative assembly for the Union Territory of J&K will be 5 years. 
  • If a woman from J&K marries out of state, she will lose the citizenship of the state.
  • If a woman marries out of state or country, she will still retain all her rights and Indian Citizenship.
  • Panchayats did not have any rights. 
  • Panchayats will have the same rights as in the other states. 

 

What was Article 35A?

  • Article 35A of the Indian Constitution was an article that empowered the Jammu and Kashmir state's legislature to define “permanent residents” of the state and provide special rights and privileges to those permanent residents.
  • It was added to the Constitution through a Presidential Order, i.e., The Constitution (Application to Jammu and Kashmir) Order, 1954 – issued by the President of India on 14 May 1954, under Article 370.

The original text of Article 35A:

“Saving of laws with respect to permanent residents and their rights. — Notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu and Kashmir, and no law hereafter enacted by the Legislature of the State:

(a) defining the classes of persons who are, or shall be, permanent residents of the State of Jammu and Kashmir; or

(b) conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions as respects—

  1. employment under the State Government;
  2. acquisition of immovable property in the State;
  3. settlement in the State; or
  4. right to scholarships and such other forms of aid as the State Government may provide,

shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provision of this part.”

Some of the laws/provisions which were not applicable to Jammu & Kashmir before the Abrogation of Article 370: 

Right to Education
Acts related to the National Commission for Minorities
Acts related to the National Council for Teacher Education
Acts related to land acquisition
Acts related to National Commission for Safai Karamcharis
Act related to the protection of Whistleblowers
Acts related to the welfare of parents and senior citizens and so on. 



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