Day 8 – Q 3.Does the decision of the union government to convert Jammu & Kashmir into a union territory and carve out Ladakh as a separate union territory augur well with the constitutional principles? Examine.
3. Does the decision of the union government to convert Jammu & Kashmir into a union territory and carve out Ladakh as a separate union territory augur well with the constitutional principles? Examine.
क्या जम्मू–कश्मीर को केंद्र शासित प्रदेश में बदलने और लद्दाख को एक अलग केंद्र शासित प्रदेश के रूप में तब्दील करने का केंद्र सरकार का फैसला संवैधानिक सिद्धांतों के की दृष्टि में उपयुक्त है? जांच करें।
Recently, the government of India has repealed Article 370 of the Constitution which used to give autonomous status to the state of Jammu and Kashmir under Part XXI of the Constitution. After revocation of Article 370 Jammu & Kashmir is divided into two Union Territories, one of Jammu and Kashmir with legislative assembly and another of Ladakh without legislative assembly.
Abrogation of Article 370 augur well with the Constitutional Principles
- Equality Article 35A which stems from Article 370 empowers the Jammu and Kashmir legislature to define the permanent resident of the state, and their special rights and privileges. Now the Presidential order, The Constitution (Application to Jammu and Kashmir) Order , 2019, has scrapped Article 370 and treated the people of erstwhile Jammu and Kashmir state equally with the other states by extending all provisions of the Constitution of India to Jammu and Kashmir including single citizenship and Fundamental Rights.
- Integration With the removal of the 1954 order, which had included a proviso to Article3, namely that “no Bill providing for increasing or diminishing the area of the State of Jammu and Kashmir or altering the name or boundary of that State shall be introduced in the parliament without the consent of the Legislature of that State” the power of the Legislature ceases to exist and Parliamentary Laws, including that of reservation and Emergency would apply to Jammu and Kashmir and Ladakh as it does in other parts of the country. Hence the end of ‘Positive discrimination’.
Now the Legislative Assembly of Jammu and Kashmir has a federal relation with the Centre like the federal relation between other states and the centre. Eg. In case of inconsistencies between laws made by Parliament and laws made by the Legislative Assembly of Jammu and Kashmir, earlier law shall prevail and law made by the Legislative Assembly shall be void.
With the introduction of Jammu and Kashmir Reorganization Bill 2019 ending
special status to the state of Jammu and Kashmir, now the Union Territories will be administered by the President, through an administrator appointed as Lieutenant Governor. And the High court of Jammu and Kashmir will be the common High court for both Jammu and Kashmir and Ladakh.
Abrogation of Article 370 doesn’t augur well with the Constitutional Principles
- The reduction of the state to union territory will give a fillip to the concept of Constitution being more unitary.
- The entire exercise of getting Article 370 of the Constitution effectively abrogated has been marked by executive excess. Since Article 370 has been used to amend Article 367(which deals with the interpretation) in respect of Jammu and Kashmir , and this amendment has been used to amend Article 370 itself. This whole has been done through a Presidential Order when Governor rule was going on in the valley.
- The passing of legislation as far-reaching as dismembering a State without prior consultation has set a new low.
- A purported process to change the Constitutional status of a sensitive border State has been achieved without any legislative input or representative contribution from its people.
The special status of Jammu and Kashmir was meant to end, but only with the concurrence of its people. The significant move, in theory, opens up potential opportunities for the development led economic growth in the Union Territories of Jammu and Kashmir and Ladakh. Thus the move is bound to have a significant impact on demography, culture, and politics of Jammu and Kashmir.