Stripping a state of its statehood: Disenfranchisement of the people of Jammu and Kashmir

by | Apr 19, 2024

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About Nidhi Sharma

Nidhi Sharma is an Assistant Professor of law at O.P. Jindal Global University (India). Her research areas lie in the realm of public law, with special focus on the asymmetries in the Indian Constitution.

The people of the state of Jammu and Kashmir (J&K) were disenfranchised when the Parliament of India, through the Jammu and Kashmir Reorganisation Act 2019, deprived the territory of its statehood. Under the Act, the erstwhile state of J&K was bifurcated into two Union Territories – the Union Territory of Jammu and Kashmir and of Ladakh. On the heels of the Presidential notification issued on 6 August 2019 under clause 3 of Article 370 of the Constitution, which empowers the President to cease or modify the operation of Article 370, the “special status” of J&K was de-operationalised.

One of the aftermaths of the abrogation was the reorganisation of J&K, which was carried out at the behest of the Parliament of India. The authority granted under Article 3 empowers the Parliament to reorganise states by forming a new state by separating territory from any state, uniting two or more states, or uniting any territory to a part of any state. However, it does not confer the power to morph a state into a Union Territory – a centrally administered constituent unit. The asymmetrical federal nature of the Indian Constitution provides for establishing certain territories as Union Territories that do not enjoy the status and privileges of a ‘state’ and are administered by the Union of India. The federal scheme is at the heart of India’s constitutional structure, and depriving a state of its statehood leads to retrogradation of the people of J&K, who have benefitted from the democratic autonomy that comes with statehood.

For the inhabitants of J&K, the stripping of their state’s statehood has resulted in systemic disenfranchisement by depriving them of their civil and political rights. The Constitution grants a state and its citizenry certain rights and privileges; for example, the states enjoy plenary legislative competence and executive control. In addition, the people of the state have a right to vote in the Legislative Assembly elections and enjoy democratic representation in the Upper House of Parliament. These rights and privileges are not available to the Union Territories as they are under the direct control and supervision of the centre and, thus, lack the autonomy granted to a ‘state’ under the Indian federal arrangement.

The Supreme Court adjudicated upon a challenge instituted against the Act and delivered its judgment on 11 December 2023. The court’s ruling on the issue of reorganisation of the states is a missed opportunity to establish the scope of Parliament’s authority over the territorial autonomy of the states. For the two Union Territories created out of the erstwhile state, the Supreme Court responded in the following manner:

First, for the creation of the Union Territory of Ladakh, the court upheld its formation by reading the Parliament’s authority to undertake the reorganisation under Article 3 with its proviso and Explanation I. The court opined that after the operation of Explanation I on clause (a) of Article 3, which states that the meaning of the term “state” under Article 3 would also include “union territories”, the Parliament was granted the authority to form a new Union Territory by separating the territory from any state.

Second, regarding the Union Territory of Jammu and Kashmir, the court’s approach towards adjudicating the stripping of the state of J&K of its statehood bespeaks an evasive strategy. The court has circumvented the issue of the extent of the power of the Parliament to morph a state into a Union Territory entirely. The court’s stance stands on the clutches of an assurance extended by the Solicitor General that the status of J&K as a Union Territory is only temporary, and the government will restore the statehood as soon as possible. It is not justifiable to grant unbridled power to someone on an assurance that the same would not be abused. So far, no positive steps have been taken or even proposed by the Union to honour this assurance. Addressing the Rajya Sabha, hours after the Court’s decision, Union Home Minister Amit Shah said that he has already assured that the statehood of J&K will be restored at an “appropriate time”.

Apart from this assurance, the Supreme Court has not provided any other cogent reason to justify its hands-off approach. Paradoxically, the court did acknowledge security concerns in the territory of J&K and the denial of political rights, particularly the right to be represented by an elected government. More than two months have lapsed from the date of the judgment, and the government is yet to notify a date for conducting the general elections in J&K (scheduled for the rest of the country between April-June), which could have been indicative of their intention to restore a democratically elected government. By not affording finality to the issue of converting a state into a union territory, the Supreme Court has denied the residents of J&K the vital right of representation and to be governed by their elected representatives.

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