This post is written by Anushree Somnath Tadge , a third year student of ILS Law College , Pune.
The post tries to explain briefly the J&K Reorganisation Act, 2019, simultaneously provoking the readers to interpret through the given information if the act according to them appeals to them as a glorious moment in India’s history or tragic experiment of it’s kind, waiting to be only proved one?
The mid 2019 saw a great turmoil in the Kashmir region and also witnessed intellectuals as well as political leaders debate over- The Jammu and Kashmir Reorganisation Act, 2019 it was passed by both the houses, Rajya Sabha and Lok Sabha on the same day on 6th Aug, 2019 and finally received President’s assent on 9th Aug, 2019. Although this was preceded by revocation of J & K’s special status.
The Act made significant changes under the President’s rule like
- Revocation of Article 370
- It changed status from a State to the ‘Union Territories of Jammu and Kashmir and Ladakh’
- The Central Government also re-defined the Domicile rules.
- The legislative assembly was given powers to make laws about matters except for the ones which concern “public order” and “police”.
Re-defining domicile rules under the Act
Earlier J & K Assembly was given powers under the4 ‘now abrogated’ constitution to define a J & K ‘resident’ now these alone were eligible to be the official domiciles when applying for jobs or owning property.
Now under Section – 3A of the J & K Reorganisation Order 2020, eight months post the revocation of Kashmir’s special status, it has been defined that a domicile would be any person who has resided for a period of fifteen years in the region of Union Territory or has been studying for a period of seven years as well as appeared in class X/ XII examination in any institute located in the Union Territory of J & K. This also expands to the children of Central Government officials, officials of statutory bodies etc. who serve for a period of 10 years. This definition also considers and covers the people falling under the ambit of ‘migrants’. Government jobs were provided only to those who had a domicile certificate. Finally any ‘Tehsildar’ could authorise the issuance of a domicile certificate which was previously the work of Deputy Commissioner or any other authorised official.
Significance of this development
Previously, only permanent residents considered were the state subjects of Jammu and Kashmir in 1954 and their descendants. Rights such as right to immovable property, government jobs and scholarships were confined to the population of these permanent residents. Now all these rights are applicable and scattered to the non J & K residents too.
The Bhartiya Janata Party while contesting elections in promoted the manifesto of including Kashmir, the ever debated and controversial region in the map of India. This Act attempted to keep that promise undoubtedly.
The change in domicile rules gives a broad scope to the non J&K citizens to strongly enter and establish their domiciles in order to acquire property, jobs etc. So, instead of a flood of people the government is arranging for a slow infiltration. The special status of Jammu and Kashmir will lose essence with time.
On the other hand, Kashmir has been a Muslim-majority controversy and hotspot for militia disturbances. It is necessary to protect the protect the Union Territories to merge it with the rest of India. This merging definitely includes some stake- mixing of population but people of J&K should be taken into confidence, yet truly they are the sons of that land and the fear of their home state turning into ‘Palestine’ is original.
Salient Features of the Act
Before Mr. Amit Shah, the Home Minister moved a resolution to change the status of J&K into a union territory, already curfews were imposed in the state, internet connectivity was completely restricted and armed forces stood to ‘guard’
Following Art. 370 was scrapped off and the J&K reorganisation bill was passed. Presidential order withdrew the 1954 order. The 1954 order here means the The Constitution (Application to J&K) Order, 1954. With certain modifications.
The provisions of the Reorganisation Act of the state of J&K are as follows-
The ‘State’ would be bifurcated into two union territories
- Union Territory of Ladakh ( comprising of Kargil and Leh districts)
- Union Territory of Jammu and Kashmir ( comprising all the areas except the above mentioned)
The ‘Act’ stated that
- elections shall be for seats with tenure of five years.
- The present Governor of Jammu and Kashmir shall be Lieutenant Governor for Union Territory of Jammu and Kashmir.
- The Legislative Assembly of Jammu and Kashmir shall be advised by advisory body comprising of members who shall be appointed by the Central Government.
- The Union Territory of Ladakh shall be under the President’s rule as for period that may be determined by himself.
- The President may make regulations in order to maintain peace, enhance progress and good governance for the Union Territory of Ladakh and this acting of the President shall be by virtue of Art. 240 of Constitution of India.
- All the powers of governance and administration shall remain intact and will be applicable to the new successors and this will continue.
- The High Court of J&K shall be common for both the Union Territory of J&K and the Union Territory of Ladakh.
- The present judges of High Court of J&K were only appointed as the judges of the common court.
- The expenditure that was initially allocated to the High Courts would remain intact and will be further allocated on the basis of population ratio.
- ARTICLE 370
- Under the President’s order the Art. 370 was not entirely repealed but amended.
- Earlier the Indian Parliament only acted for matters concerning defence, external affairs, and communications, now Central laws would be applicable to J & K
- The J&K constitution would no longer be in force and the Centre has powers to define its relationship thereafter.
- The state was also denied to have its own flag because a full fledge attempt for consolidation would hinder that
Aims and Objectives
Firstly the Art.370 and 35 A are regarded by scholars as provisions which were never indefinitely permanent. And in these times when the State is absolutely infected with separatist movement, proxies of Pakistan manipulation and inefficient governance, the ‘Act’ by merging the areas of J&K with the rest of the country provides a sense of security.
Secondly, initially central laws were not applicable to the State but now all the acts shall be implemented and not just regarding matters of defence, external affairs and finance and communication. The key benefits would be implementation of Acts like Prevention of Corruption Act, National Commission for Minorities, Right to Education etc.
Thirdly, the Reorganisation Act also marks the area of Jammu and Kashmir and Ladakh as a part of Union of Indi, this includes Pakistan Occupied Kashmir, China Occupied Kashmir and regions of Balistan. Now even though both the countries have challenged this territorial marking in front of UNSC, India stands a diplomatic chance to again win these long lost boundaries.
Also women were prevented from Sharia law before, the Act aimed to free women to marry outside J&K and at the same time inherit the property of their predecessors just as other women in the country are privileged to
As per CAG, J and K’s debt till year 2016 amounted to more than 55,000 crores. Now for two decades post the year 2000, 10 percent of total Central Grants were given to J & K (state with only 1 percent of country’s population) which means even with 91,300 rs per person grants in the last 16 years, the state lacks financial progress. In ordwer to promote efficient economic progress the introduction of the Act was important.
Bodies such as Enforcement Directorate, CBI, NIA can now firmly tackle the evergrown terrorist activities, radicalisation, infiltration of terror groups etc.
The Act also promises reservation to backward classes and SC/ST in Union Territories by promising them a quota of political representation of these sects in Legislative Assembly of Jammu and Kashmir.
For the People
Now lets say even though the consolidation of State with the rest of the country is done with good intentions by the current government, the unrest in the area cannot be ignored. There are stiff external and internal oppositions to this whole propaganda.
The ‘confidence’ of people of Kashmir, by people we mean the citizens are well as political leaders was never taken into account. The entire passage of this Act with assent tooj only 3 days, while Kashmir stayed under President’s rule, on top of it by presidential order the Art. 370 was scrapped off. All this definitely hints a political and malicious move by the BJP government.
It has to be understood that the unrest is legitimate, the fear and insecurities are original, because for the first time people of Kashmir are being governed by a Constitution they do not believe in.
SCRUTINY OF LAW
A considerable strata of Indian Population stands today with Kashmir against the reorganisation. People are terming it as a constitutional breach, even though the Government has not disturbed the ‘ Instrument of Accession’ it cannot be denied that the state has been absolutely scrapped of it special status under artificial circumstances.
It is predicted that the local agitation may take violent forms and separatists alongwith political parties might acts as a catalyst to divide people and disaffect sections of population. This would be attempted to project as a move to destroy Kashmiri identity because of domicile rules.
Pakistan, its proxies, China are the numbered externalities which will definitely react to this move. A fresh wave of violent agitation may be triggered in the Kashmir and Jammu divisions. Globally this move will be questioned and both Pakistan and China will be asking UN intervention.
Both the sides to this Act’s repercussions are explained in the aforementioned paragraphs. A youth agitation and international disturbances are both expected outcomes and therefore the Govt. should carefully handle the situation. The emotional outburst in Kashmir is legitimate and if the ‘Act’ is not declared as ultra vires by the Supreme Court, the Govt. should responsibly take the following measures-
- Periodical restoration of communication.
- Defining policy guidelines regarding land ownership which continues to be a sensitive issue.
- Engagement of residents and dialogue between external and internal representations.
- Strong anti filtration grid is extremely essential.
- All the benefits promised by the Act should be active on ground and not merely written on paper.