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Why J&K's reorganisation makes it similar to Delhi, not Puducherry

File photo of Security personnel stopping a vehicle for checking during restrictions in Srinagar
On the face of it, the newly-formed Union Territory of Jammu and Kashmir will be similar to Delhi and Puducherry, in that it will have a legislative assembly with limited powers compared to those of states.

However, there is a major difference between Delhi and Puducherry, specifically when it comes to law and order and internal security. The Puducherry Police comes under the direct control of the Department of Home Affairs, Government of Puducherry, while Delhi Police comes under the Home Ministry of the central government.

There are other differences as well. Apart from police and public order, the Constitution does not empower the Delhi government to pass any law on land, offences and jurisdiction and power of courts as well. However, the Constitution does not specifically mention such restrictions for Puducherry. This has led to situations, for example wherein both the Union Home Ministry and the Puducherry government have claimed that they have the power and authority on land affairs.

The Jammu and Kashmir Reorganization Act makes it clear that it will be the ‘Delhi model’ that will be followed as far as policing and public order are concerned. On issues like land and powers of court, there is no clarification.

Paragraph 32 of the Act states: “Subject to the provisions of this Act, 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 the subjects mentioned at entries 1 and 2, namely “Public Order” and “Police” respectively or the Concurrent List in the Seventh Schedule to the Constitution of India in so far as any such matter is applicable in relation to the Union territories.”

To be sure, a lot of what happens from here on with J&K is a step into the unknown, in terms of administration. It is the first time in India’s history that a state has been turned into a union territory. Prime Minister Narendra Modi, in his address to the nation last week, said that the move will be temporary, and that once peace prevails, Jammu and Kashmir will be turned back into a state. There is no timeline or clarity on when this happens.

Also, if and when J&K is turned back to a state, it will most certainly be without Ladakh and Kargil, which are now part of the Ladakh union territory, and which will be similar to union territories of Chandigarh, Daman and Diu, Andaman and Nicobar and others, in that they don’t have legislative bodies and are administrated directly by the union government through lieutenant governors.  

“Union territory by definition is centrally administrated. There has been a political concession in case of J&K where a legislative assembly has been allowed with limited powers. The powers of the Parliament will over-ride the powers of the union territory legislature.  Even in the state list, if union parliament passes the law, that will prevail, and not the one passed by the legislative assembly,” said Subhash Kashyap, Constitutional expert and a former Secretary-General of the Lok Sabha.

This will be similar to Delhi, Kashyap pointed out, wherein the Parliament has co-extensive powers even in the state list, and its decisions regarding the 61 matters in the state list prevail over those of the Assembly.

“Powers of the Delhi government and Delhi assembly are limited in the sense that they do not apply in case of police, public order, land. Puducherry has more concessions that way,” Kashyap said.

Another area wherein concession has been granted to J&K is Finance Commission awards. As reported earlier, the UT of J&K will get funds from the divisible tax pool of the centre, after recommendation of the 15th FC. Funds from this source are usually given to states and not UTs.

These provisions were made in the reorganization act. “The President shall make a reference to the Fifteenth Finance Commission to include the Union territory of Jammu and Kashmir in its Terms of Reference and make award for the successor Union territory of Jammu and Kashmir,” the act says. This provision in the bill will remove doubts that arose from the skewed nature of J&K’s resource mobilisation — the Centre already accounts for 71 per cent of the state’s resources.