All You Need to Know about UT (for Ladakh)

• A Union Territory is a sub-national administrative division of India, in the federal framework of governance. Unlike the states of India, which have their own elected governments, union territories are ruled directly by the federal government or central government. There are many UTs like Andaman and Nicobar Islands, Chandigarh, Dadra and Nagar Haveli, Daman and Diu, Lakshadweep or Pondicherry in India.

Pros of the Case :

The Demand for UT  status is attributed mainly  to Buddhists of Leh. Below is an outline for this demand:

• Demand for UT status for Ladakh is rooted in resentment against Kashmiri , administrative and political control.  In the 1970s, the demand for a “Central Administration” and UT was undermined by dividing Ladakh on communal basis by creating two districts.
•  Kashmiri leadership successfully kept both the communities divided through tactful “divide and rule” policy.

It is felt in Leh that Kargili leaders  have been  made insecure by suggesting that UT status will make Muslims of Ladakh to fall under the Buddhist dominance and they will suffer enormously thereafter.

• The idea of  “Greater Ladakh” which  is considered an idea of  former Chief minister of J&K Sheikh Abdullah. The concept of GL was to bring in the multilateral dimension of involving Pakistan, China, India and UN Security Council to focus on Ladakh. It seems the concept had not attracted the attention of the people of Gilgit-Baltistan.
• Kashmiri discrimination against Buddhist and Muslim of Ladakh had been equal.  Kargil has remained more backward despite religious affinity, despite geographical proximity and despite better connectivity with Kashmir.
• The demand is synonymous with the demand for empowerment of the cold desert, which has suffered discrimination at the hands of successive state governments despite having been given the autonomous hill councils -— Leh district got it in 1995, Kargil district in 2002. The backwardness of the desert is visible in the impoverished neighbourhoods. The Ladakh region also puts up with complete isolation for six or more months when roads connecting it to the rest of the country are closed by heavy snowfall. These are large issues which fall under the purview of the state government.

Those opposing the demand say that the exercise could lead to disintegration of the state and would require a constitutional amendment by the state legislature. The Centre cannot do anything unilaterally about the issue. Apart from the opposition of the Kashmir-centric parties and the Shia Muslim population of Kargil, there are constitutional hurdles in granting UT status to the region. First, it cannot be given to Leh only. There is Muslim population in Leh district, while the Zanskar area of Kargil is Buddhist-dominated. This can start, it is feared, an ethnic and religious conflict.

         The Centre is empowered to declare any area UT. But that is an exception not a rule. For example, Chandigarh was declared a UT because of the dispute between two states, Punjab and Haryana.

The state of J&K in the Constitution has been defined the way its territory existed in an undivided state in 1947. As of now, one-third of its part is under illegal occupation of Pakistan.

• As for Art 370 as i understand it .There are two aspects to the issue viz, how does Art 370 operate and what are it's failings.By existing constitutional law Art 370 cannot be abrogated or vitiated but, by exploiting it's legal infirmities,one can,if national political will is determined. Watering down 370 will amount to political chicanery because it militates against the objective of the Art-to give greater autonomy and power than other states. I am not advocating rescinding the Article,for national integeration can flow automatically from deft rather than abrasive politics.

Art 370 empowers President to define the constitutional relation of J&K with India. It is the bridge linking The State with The Union. Art 370 Constitution Application to J&K Order 1954' is the presidential authority that applies union legislation to the state. President, however, has to exercise his powers within the allowance of the Instrument of Accession (IOA). This executive power is exercised by president through Parliament. Parliament is empowered to make laws on subjects in the union list in "consultation" with state govt and make laws on subjects in the concurrent list in "concurrence" with the state govt. Art 249 and Art 250 only empower the union to over rule the state legislations that conflict with the union legislation(in the areas prescribed above). In order to be able to abrogate/amend Art 370, President can issue a notification,only if recommended by the constituent Assembly. Art 368 on amendment, is also fettered on this issue. Besides, Art 147c of the constitution of J&K does not permit introduction of the bill for amendment or seeking any change to Art 370. State legislature does not carry constituent powers. Basic structure of the constitution cannot be changed by the Assembly unless specially empowered and then, should not get struck down by judicial review. Now, the devil's part(scope for abrogation/amendment   The legal infirmities that qualify Art 370 for a review, as per my reckoning are:

On 26 Nov 1949, when the constitution of India was being adopted,future relationship of J&k was still evolving. However due to the exigency of finalizing the constitution of India, a temporary provision in the form of Art 370 was incorporated.

The principle of 'Rubuc Sic Standibus' defines that if the existing situation that lead to the creation of a law/Article/Act, has undergone a material change then the legislation becomes ineffective.

Art 370 violates the fundamental principle of 'equality' among states. This is a violation of international constitutional law.

By virtue of this Art., the population of J&K is deprived of fundamental and inalienable human rights that are guaranteed to rest of the population of India through Articles 14 to 32(fundamental rights). Progressive legislations also fail to reach J&K.

Special status and preferential powers were temporarily granted so that the state could come out of the backwardness-allegedly on account of mal administration by the then Maharajah. During this period,even the Dalits in India have created a creamy layer for themselves-not to talk about J&K.

Governor is the part of legislature and head of the state executive(Govt). He has absolute discretionary powers vide Art 166, that are so powerful that even the president would itch-to be a Guv.

Sovereignty of India over J&K was consummated by ratification of the IOA and promulgation of the constitution of J&K on 17 Nov 1957 by the state assembly. Art 3 of this constitution and Article 1 of the constitution consider J&K as a part of the union of India. Art 147c of the constitution of J&k prohibits introduction of a bill into the state legislature,that intends to abrogate or amend Art 3. Principles of sovereignty, as observed in international law demand national integration.

If 40% of the population of the country feel that a review of this piece of legislation is merited,it is a legal and politically ethical point to ponder upon,by the union legislature.

Constitutional experts quote two judgements to support the statement that prez can amend/abrogate Art 370. Puran lal lakhan pal V UoI AIR 1961 and Sampat Prakash V state of J&K AIR 1970. I have not gone through these judgements.

But jurisprudence dictates that life and lore of a society do not progress by law and adversarial legislation. At the same time, philosophy of Roscoe Pound has legitimized social engineering through state legislations and Socio-legal movements. PIL, RTI and host of other legislations remain a beacon in this regard. A national debate on Art 370 is thus, very much in order.

As per international law, Instrument of Accession is not a final document. It is only an expression of consent. Consent to agree to a treaty on the subject. By interpretation, the details are subject to final settlement.