Big changes in law in the offing in 2 new UTs
On Monday, the Upper House passed the Jammu & Kashmir (Reorganisation) Bill, 2019 that sought to carve the state up into two union territories (UTs )— Jammu and Kashmir, and Ladakh — with a majority of 125 votes.Updated: Aug 06, 2019, 01:01 IST
The Centre’s decision to split the state of Jammu & Kashmir will have wide legal and constitutional implications.
On Monday, the Upper House passed the Jammu & Kashmir (Reorganisation) Bill, 2019 that sought to carve the state up into two union territories (UTs )— Jammu and Kashmir, and Ladakh — with a majority of 125 votes.
Geographically, the state comprises three regions, Hindu-dominated Jammu, Muslim-majority Kashmir and Buddhist-dominated Ladakh.
As per the bill, the union territory of Ladakh will comprise Kargil and Leh districts, and will be directly administered by the central government through a Lieutenant Governor, who will be common to both Ladakh as well as the union territory of Jammu & Kashmir. The latter will, however, have a legislature.
Union home minister Amit Shah moved the Bill under Article 3 of the Constitution. Together with articles 2 and 4, it deals with “reorganization of the states” or the creation of new states or Union Territories as well as readjustment of boundaries of existing states and UTs.
“Forming a state doesn’t require a two-thirds majority and neither does a bill to form a new state require a Constitutional amendment, unless the changes are of a very wide and sweeping nature,” constitutional expert Subhash Kashyap said. However, what constitutes “wide and sweeping” depends on the discretion of the government and is a “policy question”, he said.
For example, the 7th Amendment that reorganised states on the basis of language was a constitutional amendment.
As per Article 3, the Parliament may form new states or UTs in any one of the following ways: separation of territory; uniting two or more states or parts of states; or uniting any territory to a part of any state.
The provision that allows Jammu & Kashmir to have a state legislature means that jurisdiction will be divided between elected representatives — headed by a chief minister — and the Governor of the state, quite the same way as it is in Delhi. In cases of UT with legislatures, certain critical items like land, law and order and services, will be administered by the Centre through the office of the Governor.
The reorganisation of Jammu and Kashmir does not merely mean a territorial change and entails a spate of legal ramifications, experts said.
For instance, the Indian Penal Code will replace the Ranbir Penal Code to deal with criminal matters. There would be no separate flag for the state of Jammu and Kashmir and nor a separate Constitution.
The Jammu and Kashmir Assembly will have a term of five years and not six as was the case previously.
The Kashmir Assembly, before the President’s rule was imposed, had 111 members: 87 elected and 2 nominated. As before, 24 seats in Pakistan Occupied Kashmir have been left vacant.
Apart from such structural changes, a spate of new laws, which currently apply to rest of India, will take force. Examples include the Dowry Prohibition Act, Muslim Women (Protection of Rights on Marriage) Act, the Commercial Courts Act, among others.
Furthermore, the promulgation of the Constitution (Application to Jammu and Kashmir) Order 2019 effectively does away with Article 35A that prohibited non-Kashmiris from possessing immovable property in the state.