New Constitutionalism in J&K

Dr. K. L. Bhatia
August 5 and 6, 2019 will be remembered historic days in the independence history of India and will be written in golden words in the modern history of India since the developments erased the black chapters of 19th October 1949 when Article 370 (306A) was got inserted in the Constitution of India under process and corrected the wrongs of 15th May 1954 when Article 35A was added ostensibly as a rarest example of invisible hands of invisible State in the Constitution by an Executive Order by overreaching the Constituent powers of the Parliament of India.
The events corrected the wrongs of seventy years of past tense by abrogating Articles 370, CO 1954 and subsequent COs evaporating the soup and sauce of Article 35A by the similar process as it was introduced and as such streamlined the process of One Nation One Constitution One National Flag in the nationalistic fervor thus strengthening the indestructible union of Indian federalism — a unique concept in the family of constitutionalism.
The Constitution (Application to the State of Jammu and Kashmir) Order, 2019, CO 272, and The Jammu and Kashmir Reorganisation Act, 2019 are progressive constitutional movements to making India ” a vibrant India” , because new constitutionalism is a definite step towards effective constitutional governance , which erase the misconceptions of ‘alliance between democracies and dynasties’ and present a ‘real Union of the Indian people based on the basic concept of the sovereignty of the Constitution of India’.
These two laws, therefore, are an acknowledgement that federalism is an integral part of incredible India and its mosaic is engraved and entrenched in the textual Constitution of India in the governance of Indian State to achieving the ends of unity and integrity of the Indian nation. The Union of States are interdependence on each other and not independent from each other.
CO 272 of 2019 has come into force on 5th day of August, 2019, and supersedes the CO 48 of 1954 as amended from time to time (1964, 1966, 1967, 1969, 1971, 1972, 1973, 1974, 1975, 1976, 1985, 1988, 2016), and, thus, thereby abrogates Articles 370, 35A.
CO 2019 brings an end to the separate constitution of Jammu Kashmir which was otherwise subordinate to the Constitution of India as well as the sovereignty of the Constitution of India.
CO 2019 brings the people of Jammu Kashmir within the purview of We The People of India as single citizenship of Indian origin.
CO 272 of 2019, thus, extends and applies THE CONSTITUTION of India, 1950, as amended from time to time, to Jammu Kashmir.
By this CO and Sections 95 and 96 of the Reorganisation Act 2019 all Central Laws shall be applicable in the Union Territory of Jammu Kashmir and Union Territory of Ladakh (166 Central Laws) in order to bring uniformity in the application of Central Laws.
By this CO all State Laws shall stand repealed being contra to Constitution of India.
CO 2019 evaporates the soup and sauce of misinformation campaign about the Legality of Jammu Kashmir’s Accession to India and the Separatists’ Campaign that had had Internal and External Dimensions as well as ramifications. It is sanely as well as soundly felt that the question of accession was purely a matter of internal administration and wholly foreign to the jurisdiction of UN and UNSC or any international fora.
CO 2019 also evaporates the soup and sauce of specious claim of ‘Special status of Jammu Kashmir under the dead wood of Article 370’.
CO 2019 confirms the Temporary and Transitory status of JK under dead wood of Article 370.
CO 2019 brings an end to the state of conflict in Jammu Kashmir from the precepts of federalism vis-à-vis separate temporary and transitory provisions of the constitution.
CO 2019 brings an end to the impression that Article 370 was a bridge between India and Jammu Kashmir created by those contrived mindset people who had been fuelling the fire with the sole agenda that Kashmir was a disputed issue and as such sought remedy by involving a third party intervention.
CO 2019 brings an end to the notion of special privileges and rights for permanent residents of Jammu Kashmir which even though contravened the Fundamental Rights under the Constitution of India could not be challenged in the Courts thereby depriving the citizens the right to judicial review being the basic structure of the Constitution.
CO 2019 unequivocally confirms that federalism with a strong Centre is inevitable.
CO 2019 unambiguously presents the narrative that Jammu Kashmir will no more be far behind economically and industrially relatively to other States of the Union of India. Jammu Kashmir under the new constitutional culture will undoubtedly catch up with industrially developed States of India.
CO 2019 seems to be a guarantee to catch up with industrially, economically, educationally developed States. It seems that the nation is committed to a socio-economic revolution not only to secure the basic needs of the common man and economic unity of the country, but further to bring about a fundamental change in the structure of the Indian society in accordance with egalitarian principles. The underlying objective aims at achieving maximum happiness of the people of Jammu Kashmir and Ladakh with least friction.
In the backdrop of the above new constitutional developments, the glaring defects in the contentious Articles 370 and 35A , which the author has examined in depth their interscities and intricacies in his book “Federal Structure of the Textual Constitution of India Fons Juris of Constitutional Patriotism, 2019”, have disappeared, vanished and departed, viz.,
First, Maharaja of the acceding State mentioned “the existence of grave emergency in his State”, whereas N. Gopalaswami Ayyangar, of course in connivance and collusion with Sheikh Abdullah at the behest/command/will of the then Prime Minister of India Pandit Jawaharlal Nehru, mentioned “special conditions in the acceding State, which, of course, were not by any stretch of imagination ‘special conditions’. This indeed spoke about the contrived mindset of the trio — Gopalaswami Ayyangar, Sheikh Abdullah and Pandit Nehru that brought out contrived provision through colourable approach Article 370.
Sardar Patel in his constitutional-nationalist-patriotism attitude refused to be a party to the notoriety of Article 370.
Second, Article 238 that related to the States in Part B of the First Schedule stands repealed from the textual Constitution of India by the Constitution Seventh Amendment Act, 1956 with effect from 1. 11. 1956 after Reorganisation of the States. Article 238 had since then lost its utility and relevance. Why was it allowed to remain in the language of Article 370? Its continuance till its abrogation by CO 2019 speaks about constitutional wrong!
Third, the words ‘Instrument of Accession’ figuring in the lifeless language of Article 370 were irrelevant, because ‘Instrument of Accession’ were matters of past history, and past history is dead history inasmuch as dead wood. The soup and sauce of these words could have been evaporated with the enforcement of the Constitution of Sovereign Socialist Secular Democratic Republic of India that is Bharat on 26 January 1950.
Fourth, the continuance of the words ‘Dominion of India’ in the language of lifeless Article 370 did smell rat. Dominion of India had since evaporated with the enforcement of Democratic Republic of India that is Bharat from 26 January 1950. Dominion (dynasty) and Democracy cannot go together; they are sworn enemies and unfriendly to each other; and are not on talking terms with each other. Dominion (dynasty) has no place in democracy. Dominion is outmoded as well as obsolete in the annals of basic structure of Indian constitutional culture.
Fifth, reference to Constituent Assembly of the State in the passé and outmoded Article 370 could not have been permeated after the Constituent Assembly of the State had over and done with its task by making the State of Jammu Kashmir “is and shall be an integral part of India”. Its continuance seemed to be superfluous being an unessential feature as well as tenet and precept of constitutionalism.
Sixth, ‘Explanation’ in the house of the late Article 370 was infructuous, redundant, and superfluous in content and context.
There appears nothing to learn from this past dysfunctional, tense, imperfect and indefinite history. And, therefore, to make vibrant history of future, let us:
“Chodo kal ki batein, kal ki baat purani,
Naye dor main mil kar likhen ik naye kahani,
Hum Hindustani …
In the backdrop of the above, it seems that under the old constitutional structure only a select few political families benefitted, but the State of Jammu Kashmir otherwise had been the victim of anti-national propaganda generated by terrorists, separatists, secessionists, hard core and soft core Hurriyat leaders and as such the poor, weaker, underserved, underprivileged and disadvantaged segments of the society were denied the benefits, which were available to the citizens of India.
Under the new constitutional structure the under mentioned advantages will accrue to Indian citizens of the Union Territory of Jammu Kashmir and Union Territory of Ladakh:
* Scheduled Tribes community (Gujjars, Bakerwals and others) will get political representation through reservation in Legislative Assembly seats like in the rest of the country
* ST communities and Tribals (traditional forest dwellers) residing in forests since generations will be protected under The Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006.
Gender discrimination will come to an end and women will get full rights:
* Property and all other rights of women marrying outside Jammu Kashmir will now be fully protected
* All Central Laws protecting the rights of women and children will be made fully applicable to Jammu Kashmir, viz., Prohibition of Child Marriage Act, Protection of Women from Domestic Violence Act, Juvenile Justice Act, etc.
* The Commission for Protection of Child Rights Act, 2005 will be applicable in Jammu Kashmir and will ensure adequate protection of women and child rights ensuring speedy trial of offences against children
*86th Constitutional Amendment 2002 making education a fundamental right for children in the age group of 8-14 vide Article 21A and The Right to Education Act (RTE) will ensure universal education coverage to children
*Scheduled Castes, OBCs and SEBCs employees will get full benefits of reservation under the Indian Constitutional schemes as well as Apex Court’s directives
* Safai karamcharis (known as Balmikis) will now get the benefits of Indian citizenship and citizenship rights and will get jobs and shall not remain sanitation workers alone
* Manual scavenging will stop
* Naional Commission for Safai Karamcharies Act will apply
* OBCs and SEBCs will get their due in employment and education and will get full benefits of reservation like in the rest of the country
Justice for West Pakistan Refugees:
* WPRs will no more be refugees as stateless persons and will cease to be WPRs and will be known as citizens of Indian origin and they will no more be aliens in their own country
* They will get all democratic rights as well as citizenship, property rights, right to higher education as well scholarships
* They will enjoy all democratic and other rights as citizens of India under the banner of ONE NATION ONE CONSTITUTION ONE NATIONAL FLAG
The Jammu and Kashmir State Reorganisation Act, 2019 is a milestone in the annals of constitutional history of modern India.
This Act creates two Union Territories, namely, Jammu Kashmir Union Territory with Legislative Assembly and Ladakh Union Territory without Legislative Assembly, by Constitutional process as per the constitutional language of Articles 2 and 3 of the Constitution of India.
This Act has followed the same constitutional process in the reorganisation of the JK State as it was followed since 1951 to 2014 relating to other Union of States as a notion of “indestructible Union of destructible Units” cooperative federalism.
By the process of this Act, now, there shall be 28 States and 9 Union Territories.
The territory of two Union Territories shall comprise of the territories that comprised the territories of the State of Jammu Kashmir which acceded to India on 26th day of October 1947 and duly recognised by the Constitution of India including POJK, Balitstan, Gilgit.
The total number of seats in the Legislative Assembly of the Union Territory of Jammu Kashmir to be filled by persons chosen by direct election shall be 107.
Twenty four seats from POJK in the Legislative Assembly of Union Territory of Jammu Kashmir shall remain vacant and shall not be taken into account for reckoning the total membership of the Assembly.
The territorial constituencies for Legislative Assembly shall be determined by the Delimitation Commission.
Seats shall be reserved for Scheduled Castes and Scheduled Tribes in the Legislative Assembly of the Union Territory of Jammu Kashmir proportionate to their population.
The Legislative Assembly, unless sooner dissolved, shall continue for five years.
The Legislative Council shall stand abolished with the formation of the Union Territories.
The provisions contained in Article 239A, which are applicable to Union Territory of Puducherry, shall also apply to the Union Territory of Jammu Kashmir.
All Central Laws (106) shall apply to the Union Territories of Jammu Kashmir and Ladakh.
State Laws including Governor’s Acts (166) are repealed in Union Territories of Jammu Kashmir and Ladakh.
(The author is former Dean Faculty of Law University of Jammu)