Justice (retd) Syed Manzoor Gillani
Since the early 1950s, the people of Ladakh have been advocating for Union Territory status, a goal realized on August 5, 2019, when the state was partitioned into two Union Territories. The Indian government, under the BJP leadership, intervened directly to liberate them from what it termed the stagnating governance of the Sheikh and Mufti dynasties, which, according to BJP leaders, had hindered the region’s development.
Although the Ladakhis, along with the residents in Jammu, initially celebrated their newfound status, they soon tasted the bitter reality of their long-standing demand. Presently, they seek statehood and inclusion under the Sixth Schedule of the Constitution.
Historically, the Ladakh region, inclusive of Skardu, was grouped with the Kashmir province pre-partition, and the remaining areas within India continued to be associated with Kashmir until the state’s demotion to the two Union Territories of Jammu & Kashmir and Ladakh. These areas were once collectively referred to as frontier districts.
In Ladakh, the significant sub-regions of Leh and Kargil were each endowed with Autonomous Hill Development Councils (LAHDC) in 1995 and 2003, granting them circumscribed legislative powers, especially concerning local governance, administration, and development. However, these councils operate within the constraints of Union laws as enacted under the 73rd and 74th Constitutional Amendments.
The establishment of the Hill Councils provided a semblance of autonomy, though begrudgingly, the regions remained linked to the state until the revocation of Articles 370 and 35A on August 5, 2019. This act stripped the Union Territories of their Assembly and led to a predominance of non-local bureaucracy in Delhi. Additionally, the protections for local job reservations and land rights under Article 35A were abolished.
Kashmir aside, Ladakh’s experience has been likened to the historical tale of Chiragh Baig, an Afghan nobleman who, having been brought to govern, turned to ignoble actions. Similarly, the Jammuites, who also sought a separate state, have been left disconcerted.
Amidst their disillusionment, a multitude of Ladakhis, representing a spectrum of political, religious, and social groups from Leh, alongside the Kargil Democratic Alliance (KDA), have united despite their differences. They protested in the snowy expanses of Leh’s Polo Ground, as reported by the Tribune on February 11, 2024, demanding statehood and Sixth Schedule status as initially promised by India’s ruling Bhartiya Janata Party leaders. Subsequent talks in Delhi with Home Ministry officials and the Home Minister yielded no agreement on these demands, leading to hunger strikes by notable leaders in the region.
The Sixth Schedule of the Indian Constitution permits the administration of tribal areas in states with significant tribal populations, establishing Autonomous District Councils to preserve their rights. While this provision does not extend to Union Territories, Ladakh and Kargil have been granted special status for development through their Hill Councils.
There are eight Union Territories in India, governed directly by the Central Government, in contrast to states which have their legislative assemblies and governments. The extent of autonomy and power among these entities is asymmetric. For instance, Delhi and Pondicherry possess legislative assemblies and can legislate on all subjects barring public order, police, and land. Jammu & Kashmir has been promised statehood with an assembly, but not Ladakh. Nine states hold special status with varying degrees of autonomy.
Similar rights, such as those concerning land laws, jobs, reservations in educational institutions, and the constitution of regional councils, are guaranteed to other states.
Schedule Six of the Indian Constitution provides for the administration of tribal areas in the states of Assam, Meghalaya, Tripura, and Mizoram to safeguard the rights of tribal populations in these regions. It allows for the creation of Autonomous District Councils. This principle does not apply to Union Territories, so Union Territories do not have “special powers” under Schedule Six.
Article 370, through which Article 35A was added for the state of J&K, was in essence a special status for the state given its international, historical, political, and diplomatic character, identity, and dispute.
For example, certain Union laws could not apply to the state without consultation or concurrence of the state government and the state legislature alone had the authority to make laws for permanent residents to sell and purchase land and immovable property, vote and contest elections, seek government employment and avail themselves of other state benefits, such as higher education.
Almost similar rights are guaranteed in one form or another to the states of Nagaland, Mizoram, Andhra Pradesh/Telangana, Sikkim, and Karnataka, in the matters of land laws, jobs, reservations in educational institutions, religious, social, and cultural rights, special seats in Assemblies, constitution of regional councils for developments, etc. In the case of Nagaland and Mizoram, no law of the parliament applies concerning the stipulated matters unless the state recommends it. In some cases, no law from Parliament applies unless the state itself recommends it.
None of these special states has a history like J&K, which acceded through a negotiated agreement, that too, subject to settling the question of the State’s accession “by a reference to the people as guaranteed by the Governor General of India, Lord Mountbatten on 27th Oct 1947. UN Security Council Resolutions on the complaint of the Government of India followed this.
Suppose provisions similar to special status had been applied to Jammu & Kashmir. In that case, the international response might have been muted, especially since the National Conference proposed altering “Temporary” to “Special” in Article 370 in its Autonomy Report of 2000 followed by articulating its intent to constitute regional councils for development in the state.
The fundamental question remains: Why is Jammu & Kashmir not afforded the same considerations as other states, especially when parts I and II of the Indian Constitution apply to all territories within India? This is not an intractable conundrum.
*The author is the former Chief Justice of the Supreme Court of Pakistan-administered Kashmir, also known as Azad Jammu and Kashmir.
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