India: A Federation with a Unitary Bias
In November 1946, at the 54th Annual Congress Session, the then president, J.B. Kriplani spoke in favour of maximum autonomy to the states and regarded centralisation as inimical to liberty. However, these ideas took a hit post-partition as concerns rose about the territorial integrity of the nation.
The Territories of the Union
Special Status of J&K
The Reorganisation Bill
Argument for Equality
International Reaction
Way Forward
A major decision to scrap Article 370 and Article 35 was passed in the parliament of India last year. Along with this the Jammu and Kashmir Reorganisation Bill, 2019 was introduced in Rajya Sabha on August 5, 2019, by the Minister of Home Affairs. The Bill provided for the reorganisation of the state of Jammu and Kashmir into the Union Territory of Jammu and Kashmir and Union Territory of Ladakh.
Splitting and carving new states has been common in India but changing the status of an erstwhile state to a Union Territory is something that has happened for the first time.
The scrapping of the said article has long been in the manifesto of the BJP Party, yet, the sudden decision came as a major shock to political observers as well as to the opposition parties. Though the bill received near-unanimous support in the parliament, the decision to put the leading politicians of the valley under house arrest and to shut down communication networks in the entire valley was heavily criticised.
There was also a flagrant tossing away of rules and procedures in introducing the bill in the Rajya Sabha. The bill was not mentioned in the list of the business for the day. It was tabled and passed without any deliberation and discussion on the matter.
The move is highly consequential in both symbolism and substance. Let’s try and understand what the potential change of the status of a state to UT means and what its implications are going to be.
States are India’s building blocks. Each state has an elected assembly and a government to legislate on administrative matters including levying taxes and maintaining law and order. The seventh schedule of the Constitution demarcates the power of the centre and the states in separate lists, namely, Union List, State List, and the Concurrent List. All residual powers have been given to the center.
Deciding on which form of government will India follow as an independent state, was a matter of much thought and deliberation among the constituent assembly members. There were some in the constituent assembly who argued for an independent autonomous provincial legislature and believed that a departure from provincial autonomy will in principle result in totalitarianism.
The country subsequently decided to go with a parliamentary system of governance with some devolution of power to the states, held together by a strong center. Such a federal structure was thought to be conducive to preserve the idea of India and its plurality while holding the country united.
Union Territories are governed directly by the Union. Part VIII of the Constitution is concerned with the administration of the Union Territories. The President of India appoints an administrator or Lieutenant Governor for each UT. The parties ruling at the central and state level elect the President, who in turn appoints Lieutenant Governors to UTs. In practice, this means that the Union Territories follow the central government’s will.
The concept of Union Territories was not in the original version of the Constitution but was added by the Constitution (Seventh Amendment) Act, 1956. There are differences in the governing of UTs depending upon whether they have a legislative assembly or not.
The smaller ones are governed directly by the center, for example, Chandigarh, Daman and Diu, and Dadar and Nagar Haveli are UTs with no elected assemblies. But on the other hand, Puducherry is a UT with a legislative assembly and government, along with an LG. Delhi is altogether different and its status lies between a UT and a state.
The state of Jammu and Kashmir was a special case in the history of India with its own mini-constitution and separate land inheritance laws. Article 370 of the Indian constitution, granted autonomous status to the state of Jammu and Kashmir and gave the state some immunity from the applicability of the complete Constitution of India. This article aimed to provide space, in matters of governance, to the people of Jammu and Kashmir who have always felt vulnerable about their identity and insecure about the future.
However, successive governments have extended the bulk of Constitutional Acts and amendments to the state diluting Article 370 over the years. More than 40 subsequent presidential orders have been issued by successive central governments (as amendments to the original order) to make various provisions of the Indian Constitution applicable to J&K. A total of 94 out of the 97 items in the Union List had already been made applicable to J&K before the Reorganisation Act was passed.
With the new reforms, Ladakh has been formulated into a separate Union Territory without a legislative assembly while Jammu and Kashmir will become a Union Territory with an assembly. Jammu and Kashmir will also retain its High Court.
The abrogation of Article 370 already means that all Central laws will apply to the new Union Territory going forward. The fifth schedule to the Act also lists 106 Central Acts which will now be applicable in the new Union Territory, while 153 State Acts will be repealed.
With these reforms, the competence field of Jammu and Kashmir has been substantially reduced. It has lost control over the state police. The region has now become more dependent on the Center for the devolution of funds as it no longer has the financial autonomy it had as a state. The Assembly will have the ability to frame laws on issues in the State and Concurrent Lists, though this is restricted – no power over public order, police, and much of trade and commerce.
For Ladakh, it may be a welcome move as the region has suffered for the last seven decades due to neglect. Its new status as a Union territory might not only boost development but also create jobs in the region.
There will be, for the first time, reservations for Scheduled Castes and Scheduled Tribes, in Jammu and Kashmir, part of a broader scheme of extending national reservations and progressive amendments applicable to the region. For example, the 2005 Hindu Succession Act amendments that gave women equal inheritance rights as men, will now apply. The restrictions on the transfer of property under Section 139 of the J&K Transfer of Property Act are also gone now.
All the center’s scholarship schemes shall also be applicable to the region. The emphasis on schemes that touch individual beneficiaries comes from the belief that this will have a perceptible impact on the ground and highlight the government’s intent to residents, on the development front.
The Home Minister had implied that all the measures including the shutdown of communication services and the downgrade to the status of Union Territory, were temporary measures and will soon be lifted. However, even after nearly a year, the assembly elections are yet to be announced.
Most of the international community, with the exception of China and Pakistan, had initially supported India’s stance on the J&K Reorganisation Act, identifying it as an internal matter. However a few months down the line, criticism began to mount as the state continued to infringe upon the basic rights of people to Internet and cellular network connectivity. The internet blackout which was imposed in the region by the government in August went on to become the longest on record leaving people’s lives, jobs, and the economy in tatters.
There has also been widespread criticism of the government by International Rights organisations over the lockdown in Kashmir and the house arrest of mainstream political leaders. Human rights organisation, Amnesty International, urged the government to ease restrictions on communication channels and the media in the state, and to release political leaders. It further noted that the SC’s refusal to pass any orders on lifting the restrictions placed in Jammu and Kashmir was a big blow to the people of the state.
The United Nations Security Council (UNSC), for the first time in decades, also held a closed door meeting on Jammu and Kashmir on August 16, two weeks after the Indian parliament voted to revoke the special autonomous status provided to the state and to split the province into two separate territories.
The foremost challenge for New Delhi is rebuilding trust. The way New Delhi annulled Article 370 has created an impact on Kashmiris of all persuasions, including the pro-India voices who have always remained neutral in this conflict.
The Centre must now work more on perception management through soft measures instead of adopting a hard-line approach. The Union government must also sharply focus on the government schemes aimed at individuals, such as scholarships or houses, in the Union territories of Jammu & Kashmir and Ladakh, in an effort to push its development narrative in the region.
The downgrading of the state of Jammu & Kashmir to the status of UT has been challenged in the Supreme Court, including by National Conference MPs and other public figures like Shah Faesal and Shehla Rashid. The basic argument is that this is a violation of the principle of federalism and of Article 3 of the Constitution.
If the government is serious about its argument of economic development as the rationale behind this decision, it must aggressively work to put this message through. It would be even better if the government can announce the time period for the restoration of Jammu & Kashmir’s status back to that of a state. Such a step would bring about confidence and trust among the people of Kashmir as well as the international community.
Many questions and possibilities lie open as we move forward. Any decision here will be of strategic value in the long-term if handled with caution.
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