Jammu And Kashmir Reorganisation Act (2019)

The Jammu and Kashmir Reorganisation Act, 2019 is an act of the parliament of India containing provisions to reconstitute the Indian-administered state of Jammu and Kashmir into two Indian-administered union territories (UTs) called Jammu and Kashmir, and Ladakh, and becoming effective on 31 October 2019. A bill for the act was introduced by the Minister of Home Affairs, Amit Shah, in the Rajya Sabha on 5 August 2019 and was passed on the same day. It was then passed by the Lok Sabha on 6 August 2019 and it received the president's assent on 9 August 2019.

The act consists of 103 clauses, extends 106 central laws to the UTs, repeals 153 state laws, and abolishes the Jammu and Kashmir Legislative Council among other things. The introduction of the bill was preceded by a presidential order which indirectly amended Article 370 of the Indian constitution and revoked Jammu and Kashmir's special status. The act has also given powers to the central government to pass a number of executive orders in relation to both the union territories. These orders have resulted in the modification or repeal of over 400 state and central laws with respect to the union territories. The act has been challenged in court through a number of petitions.

The combination of the presidential orders and enactment of the Reorganisation Act was followed by a security lockdown and communications blackout. After August 2019, China and Pakistan made statements opposing India's changes. Calls for the restoration of statehood have been made in India.

Background

Article 370 of the Indian constitution gave Jammu and Kashmir special status. In contrast to other states of India, Jammu and Kashmir had its own constitution and a substantially higher degree of administrative autonomy. In particular, Indian citizens from other states could not purchase land or property in Jammu and Kashmir.

Jammu and Kashmir had three distinct areas: overwhelmingly Muslim-majority Kashmir Valley (95% Muslim) with a population of nearly 7 million people, a Hindu-majority (66%) Jammu with a population of 5.35 million people and a 30% Muslim population, and Ladakh, which has sparse population of 287,000 people, a Muslim plurality, or relative majority, at 46%, and a Buddhist minority at 40% (with Hindus making up 12%). Violence and unrest persisted in the Indian-administered Muslim majority areas and, following a disputed state election in 1987, an insurgency persisted in protest over autonomy and rights. The Bharatiya Janata Party (BJP) came to power in the 2014 Indian general election and had included in their 2019 election manifesto the revocation of Article 370 of the Constitution of India.

Prior to the introduction of the bill and the revocation of the state's special status, the central government put the Kashmir Valley on lock-down, with a surge in security forces, imposition of Section 144 preventing assembly, and the placement of political leaders such as former Jammu and Kashmir chief ministers Omar Abdullah and Mehbooba Mufti under house arrest. The State had been first under governor's rule and then under president's rule since 20 June 2018, after the coalition government headed by Mehbooba Mufti lost support from the Bharatiya Janata Party. Additional 35,000 paramilitary troops were deployed to Jammu and Kashmir, prior to which a warning was issued to annual Hindu pilgrims and tourists citing a terror threat. The imposition of restrictions included the blocking of internet and phone services. The preemptive moves preceded the revocation of the state's special status and the passage of the Reorganisation Act.

Statutory provisions

The Jammu and Kashmir Reorganisation Act divides the Indian-administered state into two Indian-administered union territories, Jammu and Kashmir, and Ladakh. Whereas the former, Jammu and Kashmir, will have a legislative assembly, the latter, Ladakh, will be administered by a lieutenant governor alone. The union territory of Ladakh will include the districts of Leh and Kargil, while all other districts will be accorded to Jammu and Kashmir. Of six Lok Sabha seats allocated to the former state, one will be allocated to Ladakh and five to the Jammu and Kashmir union territory. The High Court of Jammu and Kashmir will function as the High Court for both the union territories.

The act provides that the administration of the Jammu and Kashmir will be as per Article 239A of the Indian constitution. Article 239A, originally formulated for the union territory of Puducherry, will also be applicable to Jammu and Kashmir. A lieutenant governor appointed by the president will administer the union territory of Jammu and Kashmir, which will have a legislative assembly of 107 to 114 members. The legislative assembly may make laws for any of the matters in the state list except "public order" and "police", which will remain as the law-making powers of the union government. A council of ministers including a chief minister will be appointed by the lieutenant governor from the members of the legislative assembly, with the role to advise the lieutenant governor in the exercise of functions in matters under the legislative assembly's jurisdiction. In other matters, the lieutenant governor is empowered to act in his own capacity, who will also have the power to promulgate ordinances having the same force as acts enacted by the legislature. The act abolishes the Legislative Council of the state of Jammu and Kashmir. It comprises 103 clauses which extend 106 central laws and 7 amended state laws, in part or as a whole, to the two union territories. The act also repeals 153 state laws and Governor's Acts.

Enactment

The passage of the Reorganisation Act, 2019 was part of a combination of moves by the government of India, including a presidential order C.O. 272 dated 5 August 2019 and a presidential declaration C.O. 273 dated 6 August 2019, aided by a parliamentary majority. These two orders together revoked the special status heretofore enjoyed by the state of Jammu and Kashmir.

C.O. 272, C.O. 273, statutory resolutions

Presidential order C.O. 272 and presidential declaration C.O. 273 resulted in the ''indirect'' and complete change of Article 370, the foundation on which the state had a special status. The 'indirect' amendment refers changes to Article 367 via C.O. 272 dated 5 August 2019; it caused all references to the Constituent Assembly of Jammu and Kashmir in Article 370(3) to be interpreted as the Legislative Assembly of Jammu and Kashmir.

As the state was under President's Rule at the time, the powers of the Legislative Assembly were entrusted to the Parliament of India. With this done, on the same day after C.O. 272 was issued, the Upper House of the Indian parliament passed a statutory resolution under Article 370(3) endorsing the same. The statutory resolution recommended that most of Article 370 cease to be operative, except the one which says that all provisions and amendments of the Constitution of India would be applicable to the state of Jammu and Kashmir. The next day, C.O. 273 put into effect Rajya Sabha's recommendation. C.O. 272 also supersedes the 1954 presidential order and has led to the abrogation of the Constitution of Jammu and Kashmir and Article 35A of the Constitution of India.

Voting in Parliament

The bill was introduced by Amit Shah, the Minister of Home Affairs, in the Rajya Sabha on 5 August 2019. Opposition was seen, two members of the Jammu and Kashmir People's Democratic Party (PDP) tore up copies of the Indian constitution in protest, following which they were suspended from the House; 13 members of the All India Trinamool Congress walked out of the House; and 6 members of Janata Dal (United) (allied to the ruling BJP) boycotted the voting. Opposition was also seen from Dravidian Progressive Federation, Nationalist Congress Party, Communist Party of India and Communist Party of India (Marxist). However, the bill acquired the support of Bahujan Samaj Party, YSR Congress Party, Telugu Desam Party and the Aam Aadmi Party. Along with the 107 members of the ruling National Democratic Alliance, the number of supporting parliamentarians totaled to 117. The bill also acquired the support of some independent and nominated members. It was passed by the Rajya Sabha with 125 members in favour and 61 members against.

The bill was introduced in the lower house of Indian parliament, Lok Sabha on 6 August 2019. The All India Trinamool Congress and Janata Dal (United) walked out from the house, while Indian National Congress, Nationalist Congress Party and Samajwadi Party opposed the bill; Bharatiya Janata Party, Shiv Sena, Biju Janata Dal, Telangana Rashtra Samithi, Shiromani Akali Dal, Lok Janshakti Party, Bahujan Samaj Party and others supported it. The bill was passed by the house with 370 votes in favour and 70 votes against.

Assent and publication

The bill received the assent of the president on 9 August 2019, subsequent to which it was published in ''The'' ''Gazette of India'' on the same date.Jammu and Kashmir Reorganisation Act, 2019
Ministry of Law and Justice, Legislative Department. 9 August 2019. ''The'' ''Gazette of India''. Retrieved on 16 August 2021
Archived
on 16 August 2021. A notification published on the same day provided for the union territories to come into effect from 31 October 2019.

The two union territories came into existence on 31 October 2019, which is celebrated as National Unity Day (marking the birth anniversary of Sardar Vallabhai Patel, who had a major role in the political integration of India). The president of India appointed a lieutenant governor for the Union Territory of Jammu and Kashmir and a lieutenant governor for the Union Territory of Ladakh. Both the lieutenant governors were sworn in by Justice Gita Mittal, the chief justice of Jammu and Kashmir (and Ladakh) High Court, on 31 October 2019, first at Leh and then at Srinagar. President's rule was revoked following bifurcation and newly applied to the union territories through the lieutenant governors.

Legal challenges

From 9 August 2019 onwards, a number of petitions were filed that challenged the validity of the act. This includes petitions by members of parliament, former bureaucrats and military officers, advocates, lawyers, activists and non-governmental organisations. Members of parliament Mohammad Akbar Lone and Hasnain Masoodi of Jammu and Kashmir National Conference filed a petition in the Supreme Court on 10 August 2019 challenging the presidential orders and the Reorganisation Act 2019 together. With regard to the Reorganisation Act 2019 the petition challenges the downgrading of representation, the degradation and unilateral changes to constitutionalized federalism through the change from statehood to a union territory, and the right to autonomy as per the constitution. Further, the Reorganisation Act 2019 is challenged to be invalid as the presidential orders are also questionable. There are multiple reasons given for the invalidity of the presidential orders, including unconstitutionally using an article to amend itself in a way other than what was written in the constitution, making changes unilaterally, going against articles in the Constitution of Jammu and Kashmir, constitutional morality and arbitrariness. Jammu and Kashmir People's Conference has also challenged the presidential orders in court, deeming them invalid as per articles 14, 19 and 21 of the Indian Constitution, and that the will of the people of Jammu and Kashmir has not appropriately been taken into account. Further, as the changes were made during Governor's Rule, a temporary representative of the Union government itself, making permanent changes was unconstitutional.

On 5 August 2019, the Home Minister had stated that the reorganisation could be lifted and statehood restored. In October 2019, a spokesperson for the United Nations High Commissioner for Human Rights, Rupert Colville, stated that "The Supreme Court of India has been slow to deal with petitions concerning habeas corpus, freedom of movement and media restrictions". The Supreme Court stated that it would hear related pleas after its summer vacation in 2022.

Reactions and aftermath

On 4 August 2019, People's Alliance for Gupkar Declaration, an alliance of several political parties in Jammu and Kashmir, unanimously passed a resolution— "That all the parties would be united in their resolve to protect and defend the identity, autonomy and special status of J&K against all attacks and onslaughts whatsoever. That modification, abrogation of Articles 35A, 370, unconstitutional delimitation or trifurcation of the State would be an aggression against the people of Jammu, Kashmir and Ladakh". On 5 and 6 August 2019, cross-party support for the creation of the union territory of Ladakh was seen in Leh, however Kargil leaders voiced opposition to its creation.

Gupkar Alliance passed another declaration to the same effect as the one in 2019 on 22 August 2020. Farooq Abdullah was released from preventive detention on 13 March 2020, Omar Abdullah on 24 March 2020 and Mehbooba Mufti on 13 October 2020. In Ladakh, by October 2020, a certain amount of apprehension over its status as a union territory had developed due to subsequent legislation and fears of losing jobs and land. The Leh unit of the BJP passed a resolution in the Ladakh Autonomous Hill Development Council to the same effect. Those in Kargil also continued with their disapproval of being included into the union territory of Ladakh. On 3 August 2020, P Chidambaram wrote "All major fundamental rights are effectively suspended" and that there was a "new" Kashmir issue, as opposed to the 1947 one before. Solidarity events between "Kashmiri and Palestinian networks" were also seen.

Movement and communication restrictions

A security lockdown and communications blackout was extended throughout the new union territories in a pre-emptive manner. Restrictions in Kashmir continued for a longer duration than those in Jammu. Some parts of Jammu saw restrictions being lifted a few days later. Government of India data showed that thousands of arrests were made. Politicians, including three former Chief Ministers of Jammu and Kashmir, were put under preventive detention. The press in the region was heavily impacted. According to Access Now, the communications blackout was the longest any democracy has ever seen.

Civil society

Anger, betrayal, fear, anxiety and humiliation were some of the prominent emotions in Kashmir in the days post 5–6 August 2019. A fact finding team including Jean Drèze and Kavita Krishnan reported that "People expressed their anger freely in informal conversation, but no-one was willing to speak on camera", children were heard calling Modi 'Iblees' (meaning 'Satan'), and a man in Sopore said that the situation was "silence at gunpoint", and the peace was the "peace of a graveyard", while someone else said "It's Army rule not Modi rule". The newspaper ''Greater Kashmir'' had two pages devoted to the cancellation of weddings. With regard to pellet injuries, the fact finding team met two people with pellet injuries at SMHS Hospital. According to rights' groups, 412 habeas corpus petitions challenging detentions under the Jammu and Kashmir Public Safety Act, 1978 were filed after 5 August 2019.

National and international media

International media frequently referred to the situation as a nuclear flashpoint.

In a statement BBC
...