Six years after Article 370: What would statehood change for J&K?

India Today

7 hours ago

Six years after the abrogation of Article 370 and the reorganisation of the state of Jammu and Kashmir into two separate Union Territories—Jammu & Kashmir and Ladakh—there is now a strong political push to restore statehood.On July 20, J&K's Chief Minister Omar Abdullah called for restoring statehood. 'We're not asking for something that is not our due. Statehood is a right; it was promised to the people,' he said.advertisementThe Central government had also assured the Supreme Court during the hearing on petitions challenging the abrogation of Article 370 that restoration of statehood will be done expeditiously.
Under the Constitution, India is a 'Union of States', and the powers of a State and a Union territory under the federal system are clearly defined.WHAT DID THE SUPREME COURT SAY?In 2023, while passing its verdict, the Supreme Court noted that the Parliament under the Constitution has admitted and established new States in India.Whether article 3 of the Constitution would legally allow the Parliament to 'extinguish' the status of a State in the manner that was done by reorganising J&K into two Union territories was left open by the five-judge bench.The bench, however, noted that 'states under the Indian Constitution have their own independent constitutional existence.'The Supreme Court had agreed not to go into the issue of legal validity of the J&K Reorganisation Act 2019, after the Solicitor General for the Union of India told the court that 'statehood will be restored to Jammu and Kashmir and that its status as a Union territory is temporary.'The Court in its verdict noted that the Solicitor General had clarified that 'the status of the Union Territory of Ladakh will not be affected by the restoration of statehood to Jammu and Kashmir.'The Court in its verdict had directed that 'Restoration of statehood shall take place at the earliest and as soon as possible.' It has, however, been nearly 2 years since the Sc verdict.There is also a petition pending before the Supreme Court of India, likely to be heard on August 8, seeking restoration of statehood to J&K. The petition has argued that delay in restoration of statehood is 'gravely affecting the rights of the inhabitants of Jammu andKashmir and also violating the basic structure of federalism.'WHAT DOES STATEHOOD MEAN UNDER THE CONSTITUTION?States are the foundational units of India's federal structure. According to a paper by former Law Commission member P.M. Bakshi, 'The essence of federalism lies in the sharing of legal sovereignty by the Union and the federating units.'advertisementDemarcation of legislative power between the Center and the states also helps in defining the boundaries of the executive power shared by the two, as usually the legislative power controls the powers of the Executive government.State legislatures have exclusive powers over subjects enumerated in List II of the Seventh Schedule of the Constitution and concurrent powers over those enumerated in List III.Financial powers of the legislature include authorisation of all expenditure, taxation and borrowing by the state government.State legislatures, apart from exercising the usual power of financial control, use all normal parliamentary devices like questions, discussions, debates, adjournments and no-confidence motions and resolutions to keep a watch over day-to-day work of the executive. They also have their committees on estimates and public accounts to ensure that grants sanctioned by legislature are properly utilised.In a state, the Governor also has limited powers to interfere with governance and ordinarily acts only on the aid and advice of the Council of Ministers. In a UT, the situation is different, as the LG has expanded powers of discretion and there are restrictions on the subjects which are under control of the legislature and executive government.advertisementWHAT IS THE CURRENT STATUS OF JAMMU AND KASHMIR?Under Article 239 of the Constitution, Union Territories are administrated by the President acting to such extent, as he thinks fit, through an Administrator appointed by him. Currently, the role of the Administrator of J&K and Ladakh is held by the Lieutenant Governor (LG).At present, following the J&K Reorganisation, the Union territories of Jammu and Kashmir and Ladakh have limited powers to legislate and govern.Under the Reorganisation Act, the UT of J&K has been included under Article 239A of the Constitution, which means that the UT has a legislative Assembly with 107 seats that are filled by direct elections.The UT of Ladakh is directly administered by the President, which means that it does not have an elected Assembly, and the Parliament of India passes any laws and monitors the administration of the UT.Since the parliament under these provisions can introduce changes to the powers of the UT legislature, the J&K Reorganisation Act has granted extensive powers to the LG. Which means that, effectively, the Home Minister of India has control over the Police and bureaucratic apparatus in both union territories.advertisementAccording to Section 36 relating to Financial Bills in the Reorganisation Act 2019, no Bill or amendment shall be introduced in the Legislative Assembly without the recommendation of the Lieutenant Governor, if such a Bill deals with amendment of the law of any financial obligation taken or to be incurred by the legislature of the Union Territory, among other aspects.This provision has had wide significance as virtually every policy decision may give rise to a financial obligation for the Union Territory. This has also raised points of conflict between the elected government and the LG.By amending the rules framed under the Reorganisation Act, the Center in 2024 had also vested more powers to the for taking decisions on police, officers of all-India services such as the IAS and the IPS, and giving sanction for prosecution in various cases.The MHA further said that all decisions regarding the appointment of advocate general and other law officers, besides matters related to the anti-corruption bureau, will also be taken by the L-G.The Act also provides that the decision taken by the Lieutenant Governor in his discretion will be final and the validity of any action taken by the Lieutenant Governor will not be questioned on the grounds of whether he should have acted in his discretion or not.advertisementWHAT WILL CHANGE ONCE STATEHOOD IS RESTORED?All limitations on the power and authority of the elected government and legislature will be removed once statehood is restored.Under the Reorganisation Act, the J&K Legislature has the power to pass laws on the subjects mentioned in the Concurrent list of the Constitution as well as on any subject in the State List 'except the subjects mentioned at entries 1 and 2, namely 'Public Order' and 'Police' respectively'Once statehood is restored to J&K, the power to control the police forces in the state and regulate 'public order'- would go back to the elected Assembly and the elected Government of the state.The extensive discretion and powers granted to the LG, as the administrator representing the President, will also be removed, with the powers to control the police, law and order, transfer postings of bureaucrats and anti-corruption branches going back to the elected government.However, both the Solicitor General (in the Supreme Court) and the Union Home Minister (in Parliament) have clarified that Ladakh will remain a separate Union Territory even after J&K regains statehood.- Ends