Straight Talk
K B Jandial
While there is no immediate sign of restoration of Statehood to Jammu & Kashmir, and perhaps it is not coming in near future, the demand has sparked a related constitutional debate. Along with the demand for grant of statehood to J&K as consistently assured by the PM Modi and other BJP leaders during election campaign for first UT Assembly poll in September-October 2024, a constitutional issue has arisen, mostly in the social media, that grant of Statehood would necessitate dissolution of the recently constituted UT Assembly with fresh election for the State Assembly. This could genuinely scare the newly elected MLAs who have not even got the CDF for development of their constituencies. Is there any legal backing to the claim that restoration of Statehood by the Govt of India would affect the status of the new Legislative Assembly of J&K UT?
For better appreciation of this issue, there is a need to understand how and who has the power to grant Statehood. Article 3 of the Constitution of India empowers Parliament to create new states and change the boundaries, names, and sizes of existing states. By virtue of The Constitution (Eighteenth Amendment) Act, 1966, the term “State” in clauses (a) to (e) of Article 3 was made to include “Union Territory”. So, the power to make Union Territory as well as State is vested in the Parliament. And the Constitution prescribes a process for it too.
Article 3 of the Constitution empowers Parliament to make law to create a new state by separating land from an existing State, unite two or more States or parts of States, unite any land with a part of an existing State, increase or diminish the size of a State, alter the boundaries or name of a State. As per its proviso, the President’s recommendation is necessary before a Bill related to Article 3 can be introduced in either House of Parliament. The proviso also enjoins upon the President to refer the Bill to the Legislature of that State for expressing its views where the proposal contained in the Bill affects the area, boundaries, or name of the State. One needs to mark the word “views” of the Assembly and not the consent. Parliament is not bound by the views of the Assembly and can proceed with the Bill, if it so decides.
Parliament has downgraded Jammu and Kashmir State into two Union Territories by passing the Jammu and Kashmir Reorganisation Act, 2019 on 5th& 6th August, 2019 which was effective from 31st October 2019. The Bill had received the President’s assent on 9th August 2019. Views of the Legislative Assembly could not be ascertained before changing the status of J&K as it stood dissolved by the Governor Satpal Malik much earlier. At that point of time the State was under Governor’s rule under Section 92 of J&K Constitution, now ineffective after extension of the complete Constitution of India as amended from time to time.
Today, the scenario is different. Currently, J&K UT has a duly elected Legislative Assembly and it would be too happy to recommend upgradation to statehood if referred to it by the President under the Proviso to Article 3. Actually, the Assembly has already passed a resolution for restoration of Statehood despite opposition by BJP members.
This issue is being raised mostly in social media and debated at some forum that if the Statehood is restored by Parliament, the current Legislative Assembly would have to be dissolved and fresh election ordered. The constitutional issue is coming into focus amidst political gossip that Omar Abdullah and NC is worried about this issue and are likely to go slow on it.
The fact is that there is no such provision either in the constitution of India or in any Act which mandates dissolution of UT Assembly or fresh election after change in the status of a territorial unit. There are precedents of Union Territories becoming States of India which can give some clarity on this issue.
Himachal Pradesh became a Union Territory in 1967 with a Legislative Assembly having 60 Assembly constituencies. By an Act of Parliament of 1970, Himachal Pradesh became the 18th State of the Indian Union on 25th January 1971. Elections were earlier held for 60 Assembly constituencies of Himachal Union Territory along with other States and Union territories in 1967 General Elections. Even after acquiring full Statehood, the elections were held for State Assembly constituencies in the next General Election as scheduled; this time for 68 seats.
Another example is Tripura. It was made a Union Territory in 1963 with a legislative Assembly, and a State in 1972. Elections for 30 seats of Tripura UT were conducted in 1967 and the next, in the scheduled year of 1972 for 60 seats. In the meanwhile, Tripura was granted statehood by virtue of the North Eastern Area (Reorganisation)Act of 1971. It formally became a State on 21st January 1972.
The third example is Goa. It along with Daman & Diu became a Union Territory in 1965 and became 25th state of the Indian Union on 30th May 1987. As UT, election for its Legislative Assembly was held in 1984 for 30 seats and its next round of election was held as scheduled in 1989 for increased 40 Assembly Constituencies along with other states.
In all these three Union Territories, elections were not preponed to cut down the life of the Assembly despite being upgraded to Statehood prior to the next round of scheduled elections. Besides these facts, there is conclusive evidence of not curtailing the tenure of the UT Assembly after the UT became a State.
In the Statement of Objects and Reasons for the Constitution Amendment Bill for Goa Statehood, it is clearly mentioned about the expiry of “five-year term” of the existing Assembly. It says, “The existing Legislative Assembly of the Union Territory of Goa, Daman and Diu has thirty elected members and three nominated members. It is intended to make this Assembly with the exclusion of two members representing Daman and Diu Districts, the provisional Legislative Assembly for the new State of Goa until elections are held on the expiry of the five-year term of the existing Assembly.” So, there is no scope of confusion on the fate of the existing Legislative Assembly if the Modi Govt decides to grant Statehood to Jammu & Kashmir. Whether the Centre would do it, is a different matter.
Even some Constitutional experts have discounted such propositions. They clearly opined that grant of statehood will not change the status of recently elected J&K Assembly. The Constitutional Expert, Rakesh Dwivedi has reportedly said that it would not be necessary to dissolve the Assembly if Statehood is granted to J&K. Another expert, Gopal Sankaranarayanan, felt similarly. He has been quoted having said that restoration of statehood will not make any difference as the Legislative Assembly had already been constituted and the Jammu & Kashmir Assembly would function as State Assembly. The seats in J&K have been increased to 90 under the Jammu & Kashmir Reorganisation Act of 2019 and these can hold good for State Assembly as well, as these constituencies have already been delimited by the Delimitation Commission.
In conclusion, while the political decision to restore statehood to J&K lies with ModiGovernment, the legal framework and historical precedents clearly indicate that the existing Legislative Assembly will remain intact post-statehood. This ensures political continuity and allowing Omar Govt to focus on governance and development without the looming threat of premature elections.
(Feedback: kbjandial@gmail.com)
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