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Legislations

The Jammu and Kashmir Reorganisation Act, 2019

An act to provide for the Reorganisation of the existing State of Jammu & Kashmir and Ladakh & the matters of connected therewith or incidental thereto.

By: Heena Goyal, Department of Law, Punjab University

The Jammu and Kashmir Reorganisation Act, 2019 which bifurcates the Jammu & Kashmir and Ladakh into two Union Territories (UT’s) and was passed on 6th August by both the Houses (Lok Sabha & Rajya Sabha) while the president gave it assent on 9th August 2019. This Act came into force on 31st October 2019.  In this Act, there are 103 sections divided into XIV Parts and V Schedules are there.

How Will Reorganisation will work?

There are two UTs Ladakh, comprised the state of the District of Leh and Kargil, along with Jammu and Kashmir, and comprised the rest.

Why it is only declared as Union Territories, not a state? 

Previously, Jammu and Kashmir was a state with special status. A degree of autonomy, Constitutional provision and most central laws only applied when the state’s legislative assembly approved of these.

But UT is more firmly controlled by the central government through a Lieutenant Governor who is directly acted for President. So, for instance, the local bureaucracy including Jammu and Kashmir Public service commission & even the Police are now directly under the central Home Ministry’s control.

Why Ladakh does not have a Legislative Assembly like Puducherry?

The UT of Ladakh will not have its own Legislative Assembly which means all rules, order, and bye-laws, law-making with the Centre going forward. Central Government will make the rules for Ladakh.

Jammu and Kashmir is having a Legislative Assembly by Article 239A of the Constitution of India, 1950 i.e., Puducherry Model.

Seats & Terms 

  • The total number of seats in the Legislative Assembly of the union territory of the Jammu and Kashmir to be filled by persons chosen by direct election shall be 107.  (1)
  • Twenty-Four seats in the Legislative assembly of Union Territory of Jammu and Kashmir shall remain vacant and shall not be taken into account for reckoning the total membership of the Assembly. (2)
  • There will be Reservation for Schedule caste and Schedule tribe on the lines followed in the Rest of India in this Assembly. (3)
  • Legislative Assembly has a term of 5 years from the date of appointed for its first meeting and no longer. (4)

The Jammu 7 Kashmir will be able to frame laws on issues in the state list and Concurrent lists. But this will come with restrictions. They cannot frame Public, Public Order, Trade and Commerce. To avoid conflicts like what we’ve seen between Delhi and the centre, the ac carves out significant discretion for the Lieutenant Governor who is a central appointee on All Indian Service Officer and the Anti-corruption bureau. The Lieutenant Governor will also have the power to withhold assent from Bills passed by the Assembly & reserve them for consideration of the President.

The First Lieutenant Governor of Jammu and Kashmir is “Girish Chander Murmu” who is “Former principle Secretary to Prime Minister Narendra Modi” when he was Chief Minister of Gujarat.

Legal Changes in the Jammu and Kashmir Reorganisation Act, 2019

The abrogation of Article 370 of the Constitution of India, 1950 already means that all the central laws will apply to the new UT going forward. The fifth Schedule to the Jammu and Kashmir Reorganisation act, 2019 lists 106 central laws made applicable to the union territory of Jammu and Kashmir and UT of Ladakh (5) and while 153 State laws including Governor’s Act which are repealed in union Territory of Jammu and Kashmir, and Union Territory of Ladakh. (6)

How will this impact things on the ground Level?

The applications of the Indian Penal Code, 1860 and the Code of Criminal Procedure, 1973. Jammu and Kashmir had its own Ranbir Penal code and Jammu & Kashmir Code of Criminal Procedure but these are now repealed.

They were similar to the central laws but because they were technically separate Legislations, judicial changes to Indian laws did not automatically apply here.

Section 377 of Indian Penal Code, 1860 Judgment

For instance, the Supreme Court Judgement decriminalizing homosexual acts under Section 377 of the IPC, 1860 will now apply to Jammu & Kashmir.

No Child Marital Rape Exception

As the removal of the Child Martial Rape exception in Section 375 of IPC. Some have argued a 1995 Jammu & Kashmir High Court decision could be interpreted to do this already. But this wasn’t conclusive, so this will be a major change for the new territories.

Changes to personal Law & Transfer Property

  • In 2005, Hindu Succession Act amendments which gave women equal inheritance rights as men will now apply.
  • The restrictions of Transfer of Property Under section 139 of the Jammu & Kashmir Transfer Property Act are also repealed now.
  • Juveniles between the age of 16 & 18 can also be prosecuted as an adult now 2015 the central law couldn’t be enacted in the state till now.
  • Central RTI Region & other institutions to apply instead of the state’s own RTI law something which will happen with a no. of institutions.

Conclusion:

The Special Status of J&K was meant to end, but only with the concurrence of its people. The Centre’s abrupt move excluded them on a matter that directly affected their life and sentiments. Moreover, this was done after an enormous military build-up and thus the confinement of senior political leaders, and thus the communications shutdown reveals a cynical disregard of democratic norms. Whatever it is intent in enabling the complete integration of Jammu and Kashmir with India, this decision to change the State’s status could have unintended and dangerous consequences.

End Notes:

(1)  Section 14(3) of the Jammu and Kashmir Reorganization Act, 2019.
(2)  Section 14(4) (a) of this Act.
(3) Section 14(7) of this Act.
(4) Section 17 of this Act.
(5) Fifth schedule See section 95 and 96) Table -1 of The Jammu and Kashmir Reorganization Act, 2019.
(6) Table-3 of the Fifth schedule of this Act.

1 Comment
  • Gaurav
    6:09 PM, July 2020

    Well done

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