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Deciphering The Jammu & Kashmir Reorganisation Act, 2019

Muneeb Rashid Malik
10 Aug 2020 4:36 AM GMT
Deciphering The Jammu & Kashmir Reorganisation Act, 2019
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"The text should be construed as a whole. A legal instrument typically contains many interrelated parts, and thus the entirety of the document provides the context for each of its parts. This canon typically establishes that only one of the possible meanings that a word or phrase can bear is compatible with use of the same word or phrase elsewhere in the statute." – A Guide to Reading, Interpreting, and Applying Statutes, original handout written by Katharine Clark and Matthew Connolly.

The Jammu & Kashmir Reorganisation Act, 2019, has reduced the total number of States in India to 28 and increased the total number of Union Territories to 9, thus, the First Schedule of the Constitution stands amended. The Jammu & Kashmir Reorganisation Act, 2019, has 14 Parts, 103 Sections, and 5 Schedules. The preamble of the Act states as follows: -

"An Act to provide for the reorganisation of the existing State of Jammu and Kashmir and for matters connected therewith or incidental thereto."

The Jammu & Kashmir Reorganisation Act, 2019 (Act No. 34 of 2019), came into force with effect from 31st October, 2019. The Jammu & Kashmir Reorganisation Bill, 2019, was passed by the Rajya Sabha on 5th August, 2019, then by the Lok Sabha on 6th August, 2019, and it received the assent of the President on 9th August, 2019. The Act, primarily, bifurcated the erstwhile State of Jammu and Kashmir into the Union Territories of Jammu & Kashmir and Ladakh. The Act was passed after the revocation of the Jammu & Kashmir's special status by way of the Constitution (Application to Jammu & Kashmir) Order, 2019. It will be suitable to highlight some of the important features of the Act as it has brought various changes in the manner of governance and present status of the recently formed Union Territories of Jammu & Kashmir and Ladakh.

Common High Court and Bar Council for the Union territory of Jammu and Kashmir and Union territory of Ladakh

The High Court of Jammu and Kashmir is now the common High Court for the Union territory of Jammu and Kashmir and Union territory of Ladakh. The Judges of the High Court of Jammu and Kashmir for the erstwhile State of Jammu and Kashmir became the Judges of the common High Court on the appointed day (31st October, 2019). The High Court has, at present, a sanctioned strength of 17 Judges including 13 Permanent Judges and 4 Additional Judges. From May to October, the Chief Justice and the Administrative Wing of High Court shift to Srinagar and from November to April, to Jammu. However, Court Sections of both the Jammu and Srinagar Wings function throughout the year. Justice Rajnesh Oswal became the first Judge to take the oath as a Judge of the Jammu and Kashmir High Court under the Indian Constitution. Previously, Judges were administered oath under the Jammu & Kashmir's Constitution, which has now been done away with.

Any advocate on the Roll of the Bar Council of the erstwhile State of Jammu and Kashmir and practising as an advocate before the High Court of Jammu & Kashmir, will continue to be a member of the Bar Council of Jammu and Kashmir and Ladakh. The Lieutenant Governor shall also appoint an Advocate-General for the Union territory of Jammu and Kashmir who would give advice to the Government and perform duties of legal character.

Representation in the House of the People, Council of States, and Legislative Assembly for the Union Territory of Jammu & Kashmir

Five seats have been allotted to Union territory of Jammu and Kashmir and one seat to Union territory of Ladakh, in the House of the People (Lok Sabha). Four seats have been allotted to the Union Territory of Jammu & Kashmir in the Council of States (Rajya Sabha). The provisions of article 239A, applicable to Union territory of Puducherry are now applicable to the Union territory of Jammu and Kashmir. The total number of seats in the Legislative Assembly (five years duration) of the Union territory of Jammu and Kashmir shall be 107 which has to be increased to 114 through delimitation of the constituencies, to be determined by the Election Commission, and to be filled by persons chosen by direct elections. 24 seats shall remain vacant which represent the areas currently under the occupation of Pakistan. Seats have to be reserved for the Scheduled Castes, Scheduled Tribes, and Women (if women are not adequately represented in the Legislative Assembly). A person qualified to fill a seat in the Legislative Assembly has to be a citizen of India and not less than twenty-five years of age. The Lieutenant Governor has the power to prorogue the House and dissolve the Legislative Assembly. The Lieutenant Governor has discretion in matters related to All India Services, Anti-Corruption Bureau, and matters which fall outside the purview of the powers of the Legislative Assembly.

Every Minister and the Advocate-General for the Union territory of Jammu and Kashmir shall have the right to speak and take part in the proceedings of the Legislative Assembly. The Legislative Assembly has to choose two members of the Assembly to be the Speaker and Deputy Speaker of the Assembly. The Legislative Assembly has the power to make laws for the Union territory of Jammu and Kashmir for the matters mentioned in the State List or the Concurrent List except for the subjects - Public Order and Police. The Legislative Assembly shall also be having a separate secretariat staff and the Assembly has to regulate the recruitment and other conditions of service of the secretarial staff.

Union territory of Ladakh without Legislature and Union territory of Jammu and Kashmir with Legislature

The union territory of Ladakh will comprise Kargil and Leh districts, shall cease to form part of Jammu and Kashmir, and will not be having a legislature whereas the union territory of Jammu and Kashmir will comprise the territories of the erstwhile State of Jammu and Kashmir and will be having a legislature. Lieutenant Governors were appointed for the Union Territories of Jammu and Kashmir and Ladakh, as per the provisions of the Act. Shri Manoj Sinha and Shri Radha Krishna Mathur are the Lieutenant Governors of Jammu and Kashmir and Ladakh respectively. The Lieutenant Governor of the Union Territory of Jammu & Kashmir may address the Legislative Assembly and send messages to the Legislative Assembly with respect to Bills, etc.

Power of the Central Government to Adapt and Modify Laws

The Central Government can make adaptations and modifications of the laws by way of repeal or amendment which may be necessary or expedient. The Act has repealed 164 Laws of the erstwhile State of Jammu & Kashmir and 106 Central Laws (Fifth Schedule of the Act) are applicable for the Union Territories of Jammu & Kashmir and Ladakh, also, 166 State Laws would continue to be applicable. Laws such as the Code of Civil Procedure, the Code of Criminal Procedure, India Penal Code, the Indian Evidence Act, and numerous other laws are now applicable to the Union Territories of Jammu & Kashmir and Ladakh.

Official Language of the Assembly and the Strength of the Council of Ministers

There has to be a Council of Ministers consisting of not more than ten per cent of the total number of members in the Legislative Assembly, with the Chief Minister at the head to aid and advise the Lieutenant Governor. The business in the Legislative Assembly of the Union territory of Jammu and Kashmir has to be carried out in the official language of the Union territory of Jammu and Kashmir or Hindi or English and the language to be used for Acts and Bills, has to be English.

Other Changes Brought by the Act

In case of failure of constitutional machinery, the President of India, on receipt of a report from the Lieutenant Governor of Union territory of Jammu and Kashmir, has the power to suspend the operation of the provisions of the Jammu & Kashmir Reorganisation Act, 2019 and make incidental and consequential provisions which may be necessary for administering the Union territory of Jammu and Kashmir. The Central Government has the power to establish an Advisory Committee for the apportionment of assets, rights, and liabilities of the companies and corporations constituted for the erstwhile State of Jammu and Kashmir between Union territory of Jammu and Kashmir and Union territory of Ladakh, and issues relating to continuance of arrangements regarding generation and supply of electric power and supply of water, etc. The Public Service Commission of the erstwhile State of Jammu and Kashmir has become the Public Service Commission of the Union Territory of Jammu Kashmir and the Union Public Service Commission shall take care of the Union Territory of Ladakh.

Contingency Fund, Public Account, and Consolidated Fund for the Union territory of Jammu and Kashmir have also been set up, as per the provisions of the Act. The Constitution Jammu and Kashmir (Scheduled Castes) Order, 1956 and the Constitution Jammu and Kashmir (Scheduled Tribes) Order, 1989, shall continue to apply to the Union territories of Jammu and Kashmir and Ladakh.

The Administration of Jammu & Kashmir has notified the Jammu and Kashmir Grant of Domicile Certificate Procedure Rules, 2020, for issuance of domicile certificates. The Centre had issued the Jammu and Kashmir Reorganisation (Adaptation of State Laws) Order 2020, under which it defined domicile as any person who has resided for 15 years in the Union Territory of Jammu and Kashmir or has studied for seven years and appeared in class 10th/12th examination in an educational institution located in the Union Territory of Jammu & Kashmir. Over 4 lakh people in Jammu and Kashmir have been issued domicile certificates till date.

(Muneeb Rashid Malik is a final-year law student at Lloyd Law College, Delhi (NCR) and can be reached at [email protected].)

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