Consequent to the promulgation of the Constitution (Application to Jammu & Kashmir)Order, 2019, and with a view to change the geographical and political status of the present State of Jammu and Kashmir, the Parliament passed the Jammu andKashmir (Reorganisation) Bill, 2019. Once the Bill gets the assent of the President, it will result in the formal bifurcation of the present State of Jammu and Kashmir into two successor Union Territories – UT of Jammu and Kashmir, and UT of Ladakh.
The Government has given two reasons for the bifurcation of the existing State of J&K into two Union Territories:
Consequent to the President's assent, when the Bill becomes an Act, it will bring a number of changes to the present status and system of governance in the newly created Union Territories, and the provisions of the Act shall have overriding effect over any other law.
Creation of new Union Territories:
The existing State of Jammu and Kashmir shall cease to exist and two successor Union Territories shall be created – the Union Territory of Ladakh, comprising of the 2 districts of Kargil and Leh, and the Union Territory of Jammu and Kashmir, comprising of the remaining parts of the present State of Jammu and Kashmir.
Thus, the Bill reduces the total number of States in India from 29 to 28, and increases the total number of Union Territories from 7 to 9. Accordingly, the First Schedule to the Constitution shall stand amended to incorporate these changes.
Administration of the new Union Territories:
Both the Union Territories shall be administered by the President acting through the Lieutenant Governor, to be appointed by him under Article 239 of the Constitution.
For the time being, the Governor of the existing State of Jammu and Kashmir shall become the Lieutenant Governor for both the Union Territories, and shall remain as such for a period determined by the President of India. Thereafter, the President may appoint different Lieutenant Governors for the new Union Territories.
This temporary arrangement is similar to the one provided for in the Andhra Pradesh Reorganisation Act, 2014, which resulted in the birth of Telangana, and the Governor of undivided Andhra Pradesh was made the Governor both the successor states.
Furthermore, the members of Indian Administrative Service, Indian Police Service, and the Indian Forest Service shall continue to function on the existing cadres until the Central Government specifies their allocation between the successor Union Territories on the recommendation of the Lt. Governor. However, in future, the officers of these 3 Services shall be borne on the AGMUT Cadre, which means that they are liable to be posted in the states of Arunachal Pradesh, Goa Mizoram, and any of the 9 UTs.
The Lt. Governor has the discretion in all matters related to the All India Services and the Anti Corruption Bureau, and he is not bound by the advice of the Council of Ministers.
The Public Service Commission of the existing State of Jammu and Kashmir shall become the Public Service Commission of the UT of Jammu Kashmir and the needs of the UT of Ladakh shall be served by Union Public Service Commission
Legislature and Executive:
Article 239A of the Constitution, which applies to the UT of Puducherry, shall also apply to the UT of Jammu and Kashmir. Thus, for the UT of Jammu and Kashmir, there shall be a Legislature with a Council of Ministers; however, the UT of Ladakh shall not have a Legislature.
The UT of Jammu and Kashmir shall have a Legislative Assembly consisting of 107 elected members, out of which 24 seats shall remain vacant which correspond to the areas currently under the occupation of Pakistan. Furthermore, the Lt. Governor is empowered to nominate 2 members to give adequate representation to women. Seats in the Legislative Assembly shall also be reserved for Scheduled Castes and Scheduled Tribes. The quorum to constitute a meeting of the Legislative Assembly has been fixed at 10 members or one-tenth of the total number of members, whichever is greater. The provisions of the Tenth Schedule to the Constitution (Anti-defection Law) shall also apply to the Members of the Legislative Assembly.
The Election Commission has been empowered to increase the number of seats in the Legislative Assembly from 107 to 114 and carry out delimitation of the constituencies in accordance with the Delimitation Act, 2002, based on census held in the year 2011.
A major change that has been brought about in the powers of the Legislative Assembly is that it may make laws for matters mentioned in the Concurrent List and the State List under Seventh Schedule to the Constitution. The only exceptions are "Public Order" and "Police". This is similar to the legislative powers of the Legislative Assembly of Delhi under Article 239AA. However, there has been a slight departure because the Legislative Assembly of Delhi does not have the power to legislate over an additional subject i.e. "Land".
The term of the Legislative Assembly has been fixed at 5 years. This, too, is a notable change as, previously, the term of the Legislative Assembly of the State of Jammu and Kashmir was fixed at 6 years under the Constitution of Jammu and Kashmir.
The qualifications of a person to become a member of the Legislative Assembly have also changed and the requirement of such person to be a permanent resident of the State of Jammu and Kashmir has been done away with.
The Bill provides for a Council of Ministers consisting of not more than 10% of the total number of members in the Assembly, with the Chief Minister as the Head to aid and advice the Lt. Governor.
The Legislative Council of the existing state of Jammu and Kashmir has been abolished and all members thereof shall cease to be such members. All Bills that were pending in the Legislative Council shall also lapse.
The High Court of Jammu and Kashmir shall henceforth be the common High Court for both the Union Territories, and the Judges of the existing High Court shall continue to be the Judges of the common High Court. There has been no change in the name of the High Court, and unlike the Andhra Pradesh Reorganisation Act, 2014, which provided for the High Court of Judicature at Hyderabad to temporarily function as the High Court for both the successor states, this is not a temporary provision.
The Advocate's Act, 1961 has been amended to replace the Bar Council of Jammu and Kashmir with the "Bar Council of Jammu and Kashmir, and Ladakh". It has been provided that the advocates enrolled with the Bar Council of State of Jammu and Kashmir and practicing before the High Court of Jammu and Kashmir may continue to be the members of new Bar Council.
Furthermore, any person entitled to practice in any subordinate court in the existing state of Jammu and Kashmir shall be entitled to practice in such court for a period of 1 year, even though any part of such territory within the jurisdiction of such court may have been transferred to any of the Union Territories.
The Bill provides that there shall be an Advocate General for the UT of Jammu and Kashmir, to be appointed by the Lieutenant Governor. However, no such provision has been provided for the UT of Ladakh.
One of the most significant changes that the Bill brings is that it repeals 164 State Laws and makes 108 Central Laws applicable to both the Union Territories by omitting the words "except the State of Jammu and Kashmir" from the provisions of those Acts.
Accordingly, statutes such as the India Penal Code, 1860, the Code of Civil Procedure, 1908, the Code of Criminal Procedure, 1973, the Indian Evidence Act, 1872, the Indian Contract Act, 1872 and various personal laws which were previously inapplicable to the State of Jammu and Kashmir, now apply to both the Union Territories, like the rest of India.
Consequently, statutes such as the Ranbir Penal Code, the J&K Evidence Act, the Civil Procedure Code and Criminal Procedure Code of the State of Jammu and Kashmir have been repealed.
Allocation of seats in the Parliament:
Presently, the State of Jammu and Kashmir has 4 seats allotted in the Council of States i.e. the Rajya Sabha, and the same shall be retained by the successor UT of Jammu and Kashmir. Thus, the UT of Jammu and Kashmir will have the maximum number of seats in the Rajya Sabha among all the Union Territories. Presently, only 2 other Union Territories have seats allotted to them in the Rajya Sabha viz. Delhi, which has 3 seats, and Puducherry which has 1 seat.
The UT of Ladakh, like the other Union Territories besides Delhi and Puducherry, will not have any seats in the Rajya Sabha as it does not have a Legislative Assembly of its own.
In the Lok Sabha, the existing State of Jammu and Kashmir has 6 seats allotted to it, 5 of which shall be allocated to the UT of Jammu and Kashmir and 1 to the UT of Ladakh.
Furthermore, the existing Members of Parliament from the State of Jammu and Kashmir in both the Houses shall be deemed to have been elected to the respective House of the Parliament from the UT of Jammu and Kashmir in the case of Rajya Sabha, and Lok Sabha and from the UT of Ladakh in the case of Lok Sabha, with their terms unaltered.
This means that fresh elections will not be required to fill the seats allotted to the respective Union Territories in either House of the Parliament. However, the election Commission has been empowered to conduct the elections to the Lok Sabha, if it is so required.
Official Language of the UT of Jammu and Kashmir:
The Legislative Assembly has been given the power to adopt Hindi or any one or more of the languages in use in the UT of Jammu and Kashmir as the official language. However, all authoritative texts of all laws shall be in English.
The Constitution, Jammu and Kashmir (Scheduled Castes) Order, 1956 and the Constitution, Jammu and Kashmir (Scheduled Tribes) Order, 1989 shall continue to apply to both the Union Territories.
The Bill also provides for establishment of the Consolidated Fund, Contingency Fund and the Public Account of the UT of Jammu and Kashmir.
(The authors are advocates practicing in the Supreme Court and High Court of Delhi)
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