In August 2019, amid much controversy, the government of India significantly changed the administrative status of the erstwhile state of Jammu and Kashmir through the hard-hitting and broadly-reaching Jammu and Kashmir Reorganization Act. The key reforms included the separation of the region of Ladakh and making it a separate “union territory” (UT). At the same time, the administrative status of Jammu and Kashmir itself was reduced from a state to a union territory (which, the home minister promised, was only a temporary measure, although without a specific timeline). What does this change of status mean in practice?
India is a federation and states are its building blocks. Each state has an elected assembly and a government with significant competencies, such as control over law and order (that is: of state police), administration, construction of intrastate infrastructure, managing state agriculture and industries, the responsibility to levy various taxes, and much more. The chief ministers of larger Indian states, some of which are comparable in size and territory to independent countries, have considerable finances at hand and informal capabilities to raise even more resources, raising the possibility to use (or misuse) the police for their political ends and the ability to steer through important legal reforms.
The few union territories, by comparison, are governed directly by the Union—that is by the central government. They are usually small – although the two new ones will be exceptions to this – and have considerably less power in their administrative setup. The UTs are administered by the president of India through the officials appointed by him: the lieutenant governors. The president of India does not have any independent political power, however. The governance method is indirect, through various pairs of gloves: the party/parties ruling at the central and state level elect the president, who in turn appoints lieutenant governors to UTs. In practice this means that the union territories follow the central government’s will.
It must be added that Jammu and Kashmir was also a special case among Indian states, as it had a special autonomous status in many regards, which, however, has now been done away with at the same time that the region was reduced to a union territory. Thus, with the new reforms, Ladakh has been granted more autonomy than it had before (as it was only a region within a larger state) while Jammu and Kashmir lost a lot of its own autonomy.
There are few shades in the spectrum of regional power in India, however. Among the union territories, Puducherry is an exception to the above rules: it is a union territory with an elected assembly. Another special case is Delhi, which is a special territory in a category of its own, between a UT and a state (the national capital region). The current status of Jammu and Kashmir cannot be easily categorized either, as its autonomy will now be broader than that of a regular UT, but more narrow than that of a state.
While pushing through the new reform, the Indian government announced that Ladakh will be a UT without an assembly (which will make it a regular UT) while Jammu and Kashmir will be a union territory with an assembly (like Puducherry). This would also suggest that Jammu and Kashmir’s lawmakers will be eligible to vote in India’s presidential elections, as the same power belongs to Puducherry’s lawmakers (while other UTs do not take part in these elections).
This, however, is only assumed, and the Jammu and Kashmir Reorganization Act does not deal with this issue explicitly. Moreover, while union territories do not have their separate High Courts, it has been announced that Jammu and Kashmir will retain its own High Court (the authority of which will also extend to Ladakh). Yet, while the lieutenant governors of both Ladakh and Jammu and Kashmir have already been appointed, so far, eight months since the administrative reorganization of the region, the elections to its legislative assembly have not been held.
Yet, there is little doubt that the competence field of the Jammu and Kashmir government has been reduced. Firstly, it lost control over the state police. More broadly, its assembly lost legislative control on all issues connected to public order and police. Otherwise, however, it will be eligible to make laws on all matters about which other Indian states can decide; these are outlined on the State List of the Indian Constitution.
Secondly, the region will be even more dependent financially on New Delhi. Indian states are tasked with collecting various taxes and the revenue from some of these is later being distributed among Indian states by the central government following set criteria. The union territories do not avail of this tax devolution, however, and in October 2019 the Indian Finance Commission declared that the new UT of Jammu and Kashmir will not avail of it as well. When it comes to finance distribution, therefore, the UTs are even more at the will of the central government than the states, as they may be supported the center by means such as grants. Jammu and Kashmir may find itself in a similar position. Moreover, its assembly will not be able to impose, abolish, or alter taxes, unless under the “recommendation” of the lieutenant governor.
Most importantly, the question of New Delhi’s interference will prove crucial. The center has a long “tradition” of engaging in Kashmir’s politics. As a recent example, it is enough to point out that Kashmir’s leading politicians were placed under house arrest just before the Jammu and Kashmir Reorganization Act was voted through, in anticipation of their opposition to it. Such cases of heavy-handed political interference, as well as unending instances of security forces’ brutality towards ordinary citizens, cannot be justified, even though Jammu and Kashmir is troubled by terrorism, religious radicalism, separatist tendencies, and violent interference by Pakistan’s proxies.
Thus, whatever has been covered here is the legal aspect: the real scope of Jammu and Kashmir’s administrative and legislative authority will highly depend on not only its status de jure, but its de facto position, as well as the power equation between its regional politicians and the central government.