The Constitution of India, in its original form, provided for three categories of States  (States in Part A, State in Part B, and States in Part C) and Territories in Part D. But the above classification was abolished by the 7th Amendment Act in 1956, and created in its place three categories on units, viz. the States, the UnionTerritories and such other acquired territories, if any.

The States, which are twenty-five in numbers, are the primary constituent units of the Union of India having a constitutional relationship with the Centre on a federal basis. The UnionTerritories differs from the States in two ways. First, they do not take part in the federal structure of the country and second, they come under the direct administrative control of the Union. At present there are seven Union Territories, namely, Chandigarh, Delhi, Dadra and Nagar Haveli, Daman and Diu, Lakshadweep, Pondicherry and Andaman and Nicobar Islands. These territories have been put under direct control of the Union for different  reasons, such as, cultural distinctiveness, strategic political and administrative considerations.

Administration of union territories

The UnionTerritories are administered by the President through an administrator appointed by him with a suitable designation. In most of the UnionTerritories, the administrator is designated as Lt. Governor. The President may appoint, if he wishes, the Governor of a State as the administrator of an adjoining UnionTerritory and when a Governor is so appointed he will exercise his functions as administrator of a UnionTerritory independently of his Council of Ministers.

The President may frame regulations for the peace, progress and good government of Andaman and Nicobar Islands, Lakshadweep, Dadra and Nagar Haveli, Daman and Diu and Pondicherry when the Assembly of Pondicherry is dissolved or suspended. Andy such regulation has the same effect as a Parliamentary enactment. Parliament is empowered to constitute a High Court for any UnionTerritory or to declare any existing court there; to be a Hugh court. Until such a High Court is established, these High Courts under those jurisdiction these territories had remained, will continue to exercise such jurisdiction in relation to these territories. On this basis Chandigarh falls under the jurisdiction of High Court of Punjab and Haryana, Delhi has its own High Court of Delhi the jurisdiction of High Court of Bombay extends over Dadra and Nagar Haveli, High Court of Kerala has jurisdiction over Lakshadweep, Pondicherry falls under the jurisdiction of High Court of Madras and High Court of Calcutta exercises jurisdiction over Andaman and Nicobar Islands.

To associated popular elements with the Central Administration or UnionTerritories, Advisory Committees have been established. These Committees are consulted by government in regard to:

(i)      General questions of policy relating to the administration of subjects in the State List.     

(ii)     All legislative proposals in the State List pertaining to the territories; and

(iii)    Matters relating to the annual financial statements of the territories.

The Parliament is authorized to create by law democratic structures in the UnionTerritories. The Parliament has provided for an elected legislature for Pondicherry and Delhi.

Legislature for Delhi as per constitution (sixty ninthamendments) act. 1991

The question of re-organization of the administrative set-up in the UnionTerritory or Delhi had bean under the consideration of the Government for some time. The Government of India appointed on 24.12.1987 a committee to go into the various issues connected with the administration of Delhi and to recommend measures inter alia for the streamlining of the administrative set-up. The Committee went into the matter in great detail and considered the issues after holding discussions with various individuals, associations, political parties and other experts and taking into account the arrangements in the national capitals of other countries with a federal; set-up and also the debates in the Constituent Assembly as also the reports by earlier Committees and Commissions. After such detailed inquiry and examinations, it recommended that Delhi should continue to be a UnionTerritory and provided with a Legislative Assembly and a Council of Ministers responsible to such Assembly with appropriate powers to deal with matters of concern to the common man. The Committee also recommended that with a view of ensuring stability and permanence the arrangements should be incorporated in the Constitution to give the National Capital a special status amount the UnionTerritories.

The 69 the Amendment of the Constitution seeks to give effect to these proposals by inserting Article 239 AA.

According to this Amendment, Union Territory of Delhi shall be called the National Capital Territory and it shall have a Legislative Assembly to which members shall be chosen by direct election from the territorial Constituencies- The Assembly shall make laws on matters enumerated in States List (Except on matters relating to Public Order, Police and Land). If any provision of a law made by the Legislative Assembly with respect to any matte is repugnant to any provision of law mad by Parliament with respect to that matter, then the law made by Parliament shall prevail and the law made by the Legislative Assembly shall to the extent of the repugnancy be void. But, if such a law made by the Legislative Assembly has been reserved for the consideration of the President and has received his assent, then such law shall prevail in the NationalCapitalTerritory. However, the Parliament can make laws adding to, amending, varying or repealing any law so made by the Legislative Assembly.

There shall be a Council of Ministers consisting of not more than 10 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 in the exercise of his functions in relation to matters with respect to which the Legislative assembly has power to make laws, except in so far as, he is by or under any law, required to act in his description.

In the case of difference of opinion between the Lieutenant Governor and him Ministers on any matter, the Lieutenant Governor shall refer it to the President for decision and act according to the decision given there on by the President and pending such decision it shall be competent for the Lieutenant Governor in any case where the matter in his opinion, is so urgent that is necessary for him to take immediate action, to take such action or to give such direction in the matter as he deems necessary.

The Chief Minister shall be appointed by the president and the other Ministers shall be appointed by the President on the advice of the Chief Minister and the Ministers shall hold office during the pleasure of the President.

As per Article 239 AB of the Constitution, if the President, on receipt of a report from the Lieutenant Governor or otherwise, is satisfied-

(a)     That a situation has arise in which the administration of the National Capital Territory cannot be carried on in accordance with the provisions of article 239 As or of any law made in pursuance of that article; or

(b)     That for the proper administration of the National Capital Territory it is necessary or expedient so to do, the president may be order suspend the operation of any provision of article 239 AA or of all or any of the provisions   of any law made in pursuance of that article for such period a he thinks fit and make such incidental and consequential provisions as may appear to him to be necessary or expedient for administering the National Capital Territory.

Jammu and Kashmir & Ladakh

The State of Jammu and Kashmir have been bifurcated into two Union territories – Jammu and Kashmir, which will have a legislature, and Ladakh, which will be without a legislature.

Brief Background of J&K and Article 370

Article 370 of the Indian constitution is an article that gives autonomous status to the state of Jammu and Kashmir.

The article is drafted in Part XXI of the Constitution: Temporary, Transitional and Special Provisions.

The Constituent Assembly of Jammu and Kashmir, after its establishment, was empowered to recommend the articles of the Indian constitution that should be applied to the state or to abrogate the Article 370 altogether.

After the J&K Constituent Assembly later created the state’s constitution and dissolved itself without recommending the abrogation of Article 370, the article was deemed to have become a permanent feature of the Indian Constitution.

While the article was created to give temporary, transitional, special provisions, it has become a Permanent feature.

Article 370 restricts Indian parliament to make any laws for the state and it can only preside over the subjects like Defence, External Affairs, and communication.

In the years since Independence, this article was to be removed. But due to unwell administration and wars between India and Pakistan, this article has not been touched.

What is Article 35A?

Article 35A is a provision incorporated in the Constitution giving the Jammu and Kashmir Legislature a carte blanche to decide who all are ‘permanent residents’ of the State and confer on them special rights and privileges in public sector jobs, acquisition of property in the State, scholarships and other public aid and welfare.

The provision mandates that no act of the legislature coming under it can be challenged for violating the Constitution or any other law of the land.

How did it come about?

Article 35A was incorporated into the Constitution in 1954 by an order of the then President Rajendra Prasad on the advice of the Jawaharlal Nehru Cabinet.

The controversial Constitution (Application to Jammu and Kashmir) Order of 1954 followed the 1952 Delhi Agreement entered into between Nehru and the then Prime Minister of Jammu and Kashmir Sheikh Abdullah, which extended Indian citizenship to the ‘State subjects’ of Jammu and Kashmir.

The Presidential Order was issued under Article 370 (1) (d) of the Constitution. This provision allows the President to make certain “exceptions and modifications” to the Constitution for the benefit of ‘State subjects’ of Jammu and Kashmir.

So, Article 35A was added to the Constitution as a testimony of the special considerationthe Indian government accorded to the ‘permanent residents’ of Jammu and Kashmir.

 Critical side of Article 35A:

How Article 35A is against the “very spirit of oneness of India” as it creates a “class within a class of Indian citizens”?

It treats non-permanent residents of J&K as ‘second-class’ citizens.

Non-permanent residents of J&K are not eligible for employment under the State government and are also debarred from contesting elections.

Meritorious students are denied scholarships and they cannot even seek redress in any court of law.

Further, the issues of refugees who migrated to J&K during Partition are still not treated as ‘State subjects’ under the J&K Constitution.

It was inserted unconstitutionally, bypassing Article 368 which empowers only Parliament to amend the Constitution.

The laws enacted in pursuance of Article 35A are ultra vires of the fundamental rights conferred by Part III of the Constitution, especially, and not limited to, Articles 14 (right to equality) and 21 (protection of life).

 Ending Jammu & Kashmir’s special status in the Indian Union, the government has extended all provisions of the Constitution to the State in one go, downsized the State into two Union Territories and allowed all citizens to buy property and vote in the State.

In this regard, Union Minister for Home Affairs, Shri Amit Shah, introduced two bills and two resolutions regarding Jammu & Kashmir (J&K). These are as follows:

Constitution (Application to Jammu & Kashmir) Order, 2019 {Ref. Article 370(1) of Constitution of India} – issued by President of India to supersede the 1954 order related to Article 370.

Resolution for Repeal of Article 370 of the Constitution of India {Ref. Article 370 (3)}.

Jammu & Kashmir (Reorganisation) Bill, 2019 {Ref. Article 3 of Constitution of India}.

Jammu & Kashmir Reservation (2nd Amendment) Act, 2019.

Key changes:

The President had used his powers under Article 370 to fundamentally alter the provision, extending all Central laws, instruments and treaties to Kashmir. However, the drastically altered Article 370 will remain on the statute books.

While the Union Territory of Jammu and Kashmir will have a legislature, the one in Ladakh will not.

The notification by the president has effectively allowed the entire provisions of the Constitution, with all its amendments, exceptions and modifications, to apply to the area of Jammu and Kashmir.

The Bill proposes wide powers to the Lieutenant Governor of the proposed Union Territory of Jammu and Kashmir and makes it the “duty” of the Chief Minister of the Union Territory to “communicate” all administrative decisions and proposals of legislation with the LG.

All Central laws and State laws of J&K would apply to the new Union Territories of J&K and Ladakh.

Assets and liabilities of J&K and Ladakh would be apportioned on the recommendation of a Central Committee within a year.

Employees of State public sector undertakings and autonomous bodies would continue in their posts for another year until their allocations are determined.

The police and public order is to be with the Centre.

The notification amends the expression “Constituent Assembly”, contained in the proviso to clause (3) of Article 370, to mean “Legislative Assembly”.

 Legislative powers of the Union Territory of Jammu and Kashmir:

The Legislative Assembly may make laws for the whole or any part of the Union Territory of Jammu and Kashmir with respect to any of the matters enumerated in the state list except on subjects “public order” and “police” which will remain in the domain of the Centre vis-a-vis the LG.

In case of inconsistencies between laws made by Parliament and laws made by the Legislative Assembly, earlier law shall prevail and law made by the Legislative Assembly shall be void.

The role of the Chief Minister will be to communicate to the L-G all decisions of the Council of Ministers relating to the administration of affairs of the Union Territory and proposals for legislation and to furnish such information relating to the administration of affairs as the L-G may call for.

 Role and powers of the Lieutenant Governor:

The Bill specifies that the Union Territory of Jammu and Kashmir and the Union Territory of Ladakh will have a common Lieutenant Governor.

Appointment of L-G in Ladakh: The President shall appoint the L-G under article 239. The L-G will be assisted by advisors appointed by the Centre since the Union Territory will not have a Legislative Assembly.

In the case of Union Territory of Jammu and Kashmir, the L-G shall “act in his discretion” on issues which fall outside the purview of powers conferred on the Legislative Assembly, in which he is required to exercise any judicial functions, and/or matters related to All India services and the Anti-Corruption Bureau

The Chief Minister shall be appointed by the L-G who will also appoint other ministers with the aid of the CM. The L-G shall also administer the oath of office and of secrecy to ministers and the CM.

The L-G will have the power to promulgate ordinances which shall have the same force and effect as an act of the Legislative Assembly assented by the L-G.

Impact:

The tabling of the proposed Reorganisation Bill is also proof that the long reign of the 1954 Order has ended. The 1954 Order had introduced a proviso to Article 3, namely that “no Bill providing for increasing or diminishing the area of the State of Jammu and Kashmir or altering the name or boundary of that State shall be introduced in Parliament without the consent of the Legislature of that State“. That power of the State Legislature to give prior consent does not exist anymore. This has provided a free hand to the Centre to table the Reorganisation Bill.

With the removal of the 1954 Order, the power of the State Legislature ceases to exist and Parliamentary laws, including that of reservation, would apply to Jammu and Kashmir as it does in other parts of the country.

The government called this the end of “positive discrimination” and the closing of the “chasm” between residents of J&K and citizens of other parts of the country.

The removal of the 1954 Order further also negates a clause which was added to Article 352. The Order had mandated that no proclamation of Emergency on grounds “only of internal disturbance or imminent danger shall have effect” in the State unless with the concurrence of the State government.

Rationale behind this move:

Article 370 has prevented J&K to merge with India rather than being a basis of its merger.

Article 370 was seen as discriminatory on the basis of gender, class, caste and place of origin.

Post the repeal of the Article 370, doors to private investment in J&K would be opened, which would in turn increase the potential for development there.

Increased investments would lead to increased job creation and further betterment of socio-economic infrastructure in the state.

Opening of buying of lands would bring in investments from private individuals and multinational companies and give a boost to the local economy.

Criticism:

The reduction of the state to a union territory will give a fillip to the concept of constitution being more unitary

The mechanism that the government used to railroad its rigid ideological position on Jammu and Kashmir through the Rajya Sabha was both hasty and stealthy. This move will strain India’s social fabric not only in its impact on Jammu and Kashmir but also in the portents it holds for federalism, parliamentary democracy and diversity.

The passing of legislation as far-reaching as dismembering a State without prior consultations has set a new low.

The entire exercise of getting Article 370 of the Constitution effectively abrogated has been marked by executive excess.

A purported process to change the constitutional status of a sensitive border State has been achieved without any legislative input or representative contribution from its people.

 Challenges ahead:

The move will be legally challenged on grounds of procedural infirmities and, more substantively, that it undermines the basic feature of the compact between Delhi and Srinagar that was agreed upon in 1947.

Law and order maintenance challenge.

The President’s power under Article 370 has been used both to create an enabling provision and to exercise it immediately to modify the Order, thereby dispensing with the role envisaged for the State Assembly.

While it is true that in 1961 the Supreme Court upheld the President’s power to ‘modify’ the constitutional provisions in applying them to J&K, it is a moot question whether this can be invoked to make such a radical change: a functioning State has now been downgraded and bifurcated into two Union Territories.

But beyond the legality, the real test will be on the streets of Srinagar, Jammu and Delhi once the security cordon is lifted from the State.

What was unbecoming is the unwillingness to enter into consultation with the mainstream political leaders; in no other State would former Chief Ministers have been dealt with so cavalierly.

Key terms

Constitutional Seventh Amendment Act: The Constitutional Amendment enacted in 1956 that did away with the four fold classification of the Indian Union that existed at the commencement of the Constitution.

Constitutional Sixty Ninth Amendment Act: Amendment Act enacted in 1991 that provided for a legislature for the national capital territory of Delhi.

Article 239 AA: Article inserted in the Constitution vide 69^th. Amendment by virtue of which Union Territory of Delhi was designated as National Capital territory with a duly elected legislature (Legislative Assembly) and a council of ministers headed by a Chief Minister, responsible to the legislature.

Article 239 AB: Inserted by the same Amendment under the provisions of which the President of India may declare emergency in NCT on the ground of the failure of Constitutional machinery.