Rinchen Tundup
Leh Congress stands for UT while BJP already announced UT status of Ladakh. Let’s look at the Constitution of India. Article 3 gives the power to Parliament to alter the boundary of a State. In normal case Parliament is no way bound by the views of affected state for example Andhra Pradesh Assembly rejecting Telangana Bill, still it went ahead in Parliament. For Jammu Kashmir the following is added to Article 3.
“Provided further 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.”.
By current draft of Art 370, it cannot be abrogated or vitiated but legal eagles have already shown how to exploit its legal infirmities. A Supreme Court judgment (Sampat Prakash v. State of Jammu and Kashmir) had implied that the onus to recommend removal of Article 370 lies with JK Constituent Assembly. Hence abrogation of 370 is impossible without removing “Constituent Assembly” from the 370. Article 368 (Power of Parliament to amend the Constitution) can only be applied if President issues order under Article 370(1). This means to remove Constituent Assembly State Government concurrence is needed under 370(1)(d). This will only be possible if BJP comes to power in Jammu Kashmir. With Article 249 (Power of Parliament to legislate on State List) there is a rider that legislate on ‘matters in the national interest’.
In short it means no reorganisation is possible without the consent of Jammu Kashmir legislature, forget UT it is not possible to change the name of JK state without consent of JK legislature. So when Centre promises UT without taking State Government into confidence, one has to understand the mammoth complexity. BJP has already promised to change the name of state to Jammu Kashmir Ladakh , well clearly it seems it will require a Constitutional amendment on Article 3. Nehru perhaps thought that Article 370 will fall towards the legal doctrine of clausula rebus sic stantibus (inapplicable because of a fundamental change of circumstances) as he said on one occasion that “Samvidhan ki dhara 370 ghiste ghiste ghis jaayegi (will eventually disappear). But in accordance with legal rule of pacta sunt servanda (promises must be kept), it doesn’t seem to possibly wish away from Constitution of India. Noted lawyer Ram Jethmalani says that Article 370 falls under “basic structure of the Constitution of India” and is a “final article which no one can touch.” Parliament cannot alter the basic structure of Indian constitution. If Courts also agree to views of Mr. Jethmalani then there is no way this article can be removed.
Nitin Gadkari BJP leader and now Minister for Transport during a thanks giving rally in May 2014 at Polo Ground had announced that Ladakh will be a Union territory within six months. This lofty promise means that Bill has to be introduced in monsoon (July to September) or winter session (November to December), but prior to that we need someone working on a draft Bill. It will need a Cabinet approval and then it may to go to a Standing Committee, have to be referred to state legislature, after which it may see an introduction in Parliament. It will also be difficult to treat UT in isolation as the shadow of Article 370 covers whole of J and K. Even though reorganisation of State is empowered via Article 3, without providing legal provisions in Article 370 reorganisation seems impossible and may not stand any chance to judicial scrutiny. Six months have already elapsed and forget introduction of Bill in Parliament, there is no sign of drafting of Bill.
