Article 370 revoked: Cooperation between Centre and new UTs will be key to governance, realisation of aspirations

Earlier this week, the Government of India fundamentally altered Jammu and Kashmir’s special status in the Indian constitutional scheme. Through a presidential declaration, Article 370 as it stood was effectively rendered inoperative and the Constitution of India in its entirety was made applicable to the erstwhile state. Further, the Parliament of India also passed the Jammu and Kashmir Reorganisation Bill 2019 (it became an Act on Thursday after the President’s assent) which reorganises the state into the Union Territories (UTs) of Jammu and Kashmir and Ladakh. While this raises significant constitutional questions, these changes are of far-reaching significance and it is important to understand their impact on day-to-day governance of the UT. Pre-existing constitutional position of Jammu and Kashmir Due to the special historical circumstances of Jammu and Kashmir’s accession to the Union of India (through an instrument of accession), it enjoyed a unique constitutional and legal status. By virtue of Article 370, which mediated the erstwhile state’s special status within the larger Indian constitutional scheme, all constitutional provisions did not automatically apply to Jammu and Kashmir, and neither did all central laws. Constitutional provisions could be extended to Jammu and Kashmir only through a presidential order in accordance with the procedure in Article 370 which gave a significant say to the state government in this regard. [caption id=“attachment_7126001” align=“alignnone” width=“825”] Since the decision was announced on Monday, residents of the Valley have been increasingly drawing comparison with the disempowerment and military occupation of Palestine by Israel. AFP[/caption] The Parliament’s law-making power with respect to Jammu and Kashmir was also regulated by Article 370 in a similar manner. It could only make laws with respect to those entries in the Union and Concurrent Lists which corresponded with matters specified in the instrument of accession. For making laws with respect to other matters in the said lists, the concurrence of the state government was required. Most interestingly, residuary powers of legislation were vested in the Jammu and Kashmir State Legislature and not in the Parliament of India, as was the case for the rest of the country. As a result, the state of Jammu and Kashmir enjoyed an exceptionally high degree of autonomy within India’s federal set-up. Union Territories under the Constitution of India On the other end, UTs under the Constitution of India are under direct central administration. The concept was recommended by the State Reorganisation Commission (1955) which felt that for “vital strategic or other considerations”, certain territories could not be joined to any of the states, and therefore, had to be directly administered by the Central Government. Such examples include Daman and Diu, Andaman and Nicobar Islands, etc. Under Article 239, such territories are administered by the President (in other words, the Central Government) who ordinarily appoints an administrator to run day-to-day governance functions. The UT of Puducherry and the National Capital Territory of Delhi, however, have a special status and possess state legislative assemblies and an elected state government under Article 239A and Article 239AA of the Constitution, respectively. The Constitution confers upon the Parliament the power to redraw existing state boundaries or create new states, including UTs, from existing territories under Article 3. Article 4 further allows the Parliament to enact “supplemental, incidental and consequential” provisions in laws enacted under Article 3. Significantly, such laws will not be considered amendments to the Constitution under Article 368 even though they may deviate from existing provisions of the Constitution. Thus, due to Articles 3 and 4, the Parliament enjoys wide discretion though ordinary law to make provisions that are necessary to implement the reorganisation or creation of a state or UT. Further, in the context of UTs, this power is not even fettered by the federal scheme of distribution of powers contained in the three lists of the Seventh Schedule. For UTs, the Parliament has the power to make laws on any matter in the State List as well. This means that the Parliament effectively enjoys plenary powers over UTs. Impact of reorganisation on governance in Jammu and Kashmir and Ladakh Article 370 was effectively a valve through which the state could regulate the extent to and the manner in which the Constitution, as well as central laws, applied to it. Now, in contrast, it is the Parliament that can unilaterally determine the constitutional and legal framework which will be applicable in the new UTs. The Jammu and Kashmir Reorganisation Act 2019 itself makes 106 central laws applicable to the two UTs and repeals 164 state laws which were previously in force. [caption id=“attachment_7113161” align=“alignnone” width=“825”] Indian soldiers in Kashmir. PTI[/caption] Further, although the UT of Jammu and Kashmir will retain a Legislative Assembly with the power to make laws over State List subjects (except public order and police), this arrangement is merely statutory and as such, exists effectively at the discretion of the Parliament. In any case, residuary powers have been taken away from the state, and the elected government of the UT of Jammu and Kashmir will neither have control over the police nor the civil service. This represents a weakened government apparatus, which dilutes representative governance. Generally, reorganising any state to a UT represents a fundamental change in status, altering the manner in which the affected people experience democracy and participate in it. The purpose behind adopting a federal constitution with states deriving their legitimacy and authority from the Constitution itself was to ensure that regional aspirations are accommodated. What this means in practice is that democracy in the Indian context does not operate at a national level alone. Rather, it operates at multiple levels, with states being a key feature of India’s democratic fabric. Transforming a state into a UT dilutes the opportunities of the people therein to realise their plural aspirations since they will have a lesser say in governing their own affairs. The magnitude of this change is amplified in this case because the state of Jammu and Kashmir had a significantly higher level of autonomy compared to other states. The potential impact of this move in the UT of Jammu and Kashmir can be seen from another perspective as well. In the only two examples of UTs with legislatures that existed prior to Jammu and Kashmir being included in that category, stand-offs between the centrally-appointed Lieutenant Governor and the elected government of the UT have been frequent in recent years. In both Delhi and Puducherry, there have been allegations by chief ministers that the Centre, acting through the Lieutenant Governor, interferes in day-to-day affairs and hampers the functioning of their government. In both cases, long-standing disputes led to judicial interventions, with the Delhi case reaching the Supreme Court. In light of these precedents, it will be interesting to see how these new arrangements will work in practice. Given the past history of relations between New Delhi and states, how governance plays out in Jammu and Kashmir and whether the people of Ladakh’s aspirations can be better realised through this route, will ultimately depend on the degree of cooperation between the parties. However, the fact remains that given the constitutional scheme and the route through which these changes were brought about, the Parliament will have the absolute power to determine the nature of this relationship. The authors are research fellows at the Vidhi Centre for Legal Policy