Parliament passes Bill to bifurcate Jammu & Kashmir into two Union Territories

Bar & Bench August 6 2019

The Lok Sabha today passed the Jammu & Kashmir Reorganisation Bill, 2019 . Out of the 424 members present and voting, 367 voted in favour of the Bill with 67 of them opposing it and some opposition parties staged a walkout.

The primary opposition to the government's decisions on Kashmir was voiced by the Indian National Congress along with Left parties, Samajwadi Party, Rashtriya Janata Dal, and the Dravida Munnetra Kazhagam.

Voting on the Jammu & Kashmir Reorganisation Bill, 2019 in the Lok Sabha

The Bill was passed yesterday evening in the Rajya Sabha, through a voice vote, with 125 members voting for the Bill and 61 voting against it with 1 member abstaining.

The Presidential Order of August 5 had paved the way for the Centre to introduce the Jammu & Kashmir Reorganisation Bill, 2019. This Bill sought to declare J&K as a separate Union Territory with a Legislature. The Bill also provides for making Ladakh a Union Territory without a Legislature.

Section 3 of the Reorganisation Bill states,

"On and from the appointed day, there shall be formed a new Union territory to be known as the Union territory of Ladakh comprising the following territories of the existing State of Jammu and Kashmir, namely:— "Kargil and Leh districts"."

Section 4 states,

"On and from the appointed day, there shall be formed a new Union territory to be known as the Union territory of Jammu and Kashmir comprising the territories of the existing State of Jammu and Kashmir other than those specified in section 3."

The Bill further provides that the Governor of J&K will now be known as the Lieutenant Governor of the Union Territories of J&K and Ladakh.

Moreover, Article 239A, which applies to the Union Territory of Puducherry, shall also apply to the Union Territory of J&K. This provision enables Parliament to create a body which will function as the Legislature of the Union Territory, as well as a Council of Ministers. Clause (2) of Article 239A states that any law made towards this purpose shall not be deemed to be a Constitutional amendment under Article 368.

How the Centre and Opposition traded Court Judgments

TR Balu quoted Sampat Prakash vs State Of Jammu & Kashmir. Amit Shah quoting para 5 of the same judgment to stress the importance of Article 370 (3) and how its integral part of the Constitution.

Home Minister Amit Shah also quoted Puranlal Lakhanpal vs The President Of India And Others to make an argument "There is no reason to limit the word "modifications" as used in Art. 370(1) only to such modifications as do not make any "radical transformation".

Amit Shah even attacked Justice (Retd) Hasnain Masoodi who is an MP from National Conference on a judgment written by him while he was a Judge of the Jammu Kashmir High Court. Home Minister justified the curfew as just pre-cautionary.

Justice Masoodi who is currently a Member of Parliament from National Conference

The August 5 Presidential Order superseded the Constitution (Application to Jammu & Kashmir) Order, 1954, which had which listed out provisions of the Constitution of India that would not apply to J&K. This 1954 Order had also introduced Article 35A to the Constitution, which granted special rights to permanent residents of the J&K with respect to employment by the State government, acquisition of immovable property, and settlement in the State. It had further added a proviso to Article 368 of the Constitution, which deals with amendment of constitutional provisions, stating,

"Provided further that no such amendment shall have effect in relation to the State of Jammu and Kashmir unless applied by order of the President under clause (1) of article 370".

Home Minister, Amit Shah introduced the August 5 Order during the discussion on the Jammu & Kashmir Reservation (Second Amendment) Bill, 2019 yesterday. This Bill provides for reservation in appointment and promotions in State government posts, and admission to professional institutions for certain reserved categories, for socially and educationally backward classes. It defines socially and educationally backward classes to include persons living in areas adjoining the Actual Line of Control.

However, during the discussion on this Bill, Shah made a reference to the 2019 Presidential Order, which effectively rendered Article 370 redundant. This created a huge disruption in Parliament, prompting Rajya Sabha Chairman Venkaiah Naidu to state that the discussion will only be around the Reservation Bill during the session.

Before the 2019 Lok Sabha Elections, the BJP had released a manifesto reiterating its long held view that Article 370 of the Constitution, which grants autonomy to J&K in certain respects, must be abrogated.

[Read Bill]

Jammu & Kashmir Reorganisation Bill, 2019