Restore J&K statehood, says human rights forum
A civil society forum working on human rights in Jammu and Kashmir released its seventh annual report, marking six years since Parliament revoked the region's special constitutional status and reorganised it under the Jammu and Kashmir Reorganisation Act, 2019
The report calls for full restoration of statehood without further delay and repeal of the 2019 Reorganisation Act, arguing that statehood should not be made conditional on the regional security situation
It also urges that Ladakh's demand for statehood and inclusion in the Sixth Schedule of the Constitution be accepted
The report documents patterns of preventive detention, including cases where courts quashed detention orders, and flags instances of scrutiny faced by residents from Jammu and Kashmir elsewhere in India following terrorist incidents
Permission for a public release event of the report in Srinagar was not granted; the report was released online instead
Article 3 and the Jammu and Kashmir Reorganisation Act, 2019
Article 3 of the Constitution empowers Parliament to form new states, alter the boundaries of existing states, and increase or diminish the area of a state, by ordinary legislation (with the President referring the bill to the concerned state legislature for its views, though that view is not binding). The J&K Reorganisation Act, 2019, enacted under this power, bifurcated the erstwhile state of Jammu and Kashmir into two Union Territories: the Union Territory of Jammu and Kashmir (with a legislature) and the Union Territory of Ladakh, comprising the Kargil and Leh districts (without a legislature).
Key Details
- The Act came into effect on October 31, 2019, the same day Article 370 (which gave J&K special status) was abrogated
- It is the first instance in independent India of a full state being reorganised into Union Territories rather than the reverse (UT-to-state, or state-to-state reorganisation)
- The term "State" under Article 3 explicitly includes Union Territories, which is the basis on which the reorganisation was carried out
- Whether Article 3's power to "form" states extends to permanently downgrading an existing state to Union Territory status has been a live constitutional debate
The forum's demand to repeal the 2019 Act and restore full statehood rests on the argument that using Article 3 to convert a state into Union Territories is constitutionally anomalous and must be reversed.
Supreme Court's 2023 Verdict in In Re: Article 370
In December 2023, a five-judge Constitution Bench led by the then Chief Justice of India upheld the 2019 abrogation of Article 370 and the constitutional validity of reorganising the state. The Court did not separately rule on the validity of the Reorganisation Act, relying instead on the Union government's submission that statehood for Jammu and Kashmir (excluding the Union Territory of Ladakh) would be restored.
Key Details
- Decided December 11, 2023; upheld Presidential Orders that abrogated Article 370's special provisions
- The Court directed that Assembly elections be conducted by September 30, 2024 (which were subsequently held)
- The Court held that "restoration of statehood shall take place at the earliest and as soon as possible," without fixing a specific deadline
- The Union's submission carved out Ladakh from the statehood-restoration commitment, keeping it as a Union Territory
The forum's report treats the Supreme Court's statehood-restoration direction as still unfulfilled and frames continued Union Territory status as a "constitutional and moral" gap rather than a settled matter, forming the legal basis for its renewed demand.
Sixth Schedule (Article 244(2)) and Ladakh's Autonomy Demand
The Sixth Schedule, read with Article 244(2), provides for the administration of tribal areas through Autonomous District Councils (ADCs) with legislative, judicial, and executive powers over land, forests, and local customs. It currently applies only to specified tribal areas in four northeastern states — Assam, Meghalaya, Tripura, and Mizoram.
Key Details
- ADCs can make laws on land allotment, forest management (other than reserved forests), and local customary law, and can levy certain taxes
- Ladakh's population is over 97% Scheduled Tribe, which is the constitutional basis cited for extending Sixth Schedule protections there
- Parliament has the power under Article 244(2) to extend the Sixth Schedule to additional tribal areas outside the Northeast, but as of now the Schedule's text names only the four northeastern states
- Alternative proposals discussed for Ladakh include enhanced hill council powers rather than a direct Sixth Schedule extension
The forum's call for Sixth Schedule status for Ladakh reflects continuing demands — since the 2019 reorganisation removed the land and job protections Ladakh enjoyed as part of the erstwhile state — for a constitutional safeguard equivalent to what tribal-majority northeastern areas already have.
Preventive Detention: Public Safety Act, 1978 and Judicial Review
The Jammu and Kashmir Public Safety Act (PSA), 1978 allows authorities to detain a person without trial for up to two years if satisfied that the person's activities are prejudicial to the security of the state or maintenance of public order. It operates independently of, and alongside, the Unlawful Activities (Prevention) Act, 1967 (UAPA), India's principal anti-terror law.
Key Details
- The PSA is a preventive detention law — detention is based on apprehension of future conduct, not a completed offence, and does not require a criminal trial
- It is structurally similar to the National Security Act, 1980, which applies elsewhere in India
- Constitutional safeguards against preventive detention are provided under Article 22(4)-(7), including reference to an Advisory Board, though preventive detention laws are exempted from certain due-process protections under Article 22
- Higher judiciary in Jammu and Kashmir has quashed a number of PSA detention orders on procedural grounds; the Supreme Court has separately extended due-process protections against prolonged incarceration to cases under the UAPA
The report's findings on detentions and delayed judicial relief are examined against this legal backdrop — where preventive detention is lawful under the PSA but subject to judicial review, which the report cites as an inconsistent check on executive power.
- J&K Reorganisation Act, 2019 took effect October 31, 2019, alongside the abrogation of Article 370
- It created two Union Territories: J&K (with legislature) and Ladakh, comprising Kargil and Leh districts (without legislature)
- Supreme Court's In Re: Article 370 verdict: December 11, 2023; directed Assembly elections by September 30, 2024
- PSA, 1978 permits preventive detention for up to two years without trial
- Sixth Schedule (Article 244(2)) currently applies to autonomous districts in four states: Assam, Meghalaya, Tripura, and Mizoram
- Ladakh's population is over 97% Scheduled Tribe