FEDERALISM-PART-2 UPSC Prelims 2020 - Current Affairs: J&K, Article 370,35A, Domicile Law, Ladakh, 15th Finance Commission - Manifest IAS

FEDERALISM-PART-2   UPSC Prelims 2020
                       Current Affairs:
                                  J&K,
                      Article 370,35A,
                        Domicile Law,
                               Ladakh,
                         15th Finance
                          Commission

Strategy Talk
How necessary is remembering Articles of
Constitution for Prelims?

Answered at the end.

manjunath.manifestias@gmail.com

Asymmetric Federalism

Part 1 Jammu and Kashmir

 ⮚   Jammu and Kashmir Article 370
 ⮚   Article 35A
 ⮚   J and K reorganization Act
 ⮚   Delimitation process
 ⮚   Legislative Council
 ⮚   Ladakh Political Aspects

Part 2: Fiscal Federalism

 ⮚   15th FC TOR

Jammu And Kashmir
Article 370 - Key Historical Facts

 ⮚ July 1949: Hari Singh abdicates in favour of his son Karan Singh.
    Sheikh Abdullah and three colleagues join the Indian constituent
    assembly to discuss provisions of Article 370 under the Indian
    constitution that is still being drafted.

 ⮚ On October 17, 1949, Article 370 was added to the Indian
    constitution, as a 'temporary provision', which exempted Jammu
    & Kashmir, permitting it to draft its own Constitution and
    restricting the Indian Parliament's legislative powers in the state.

 ⮚ It was introduced into the draft constitution by N Gopalaswami
    Ayyangar as Article 306 A.

⮚ Under Article 370: The Constituent Assembly of Jammu &
   Kashmir was empowered to recommend which articles of the
   Indian Constitution should apply to the state,

⮚ The Constituent Assembly adopted and ratified Mir Qasim
   resolution to dissolve itself on November 17 1956. According
   to this resolution, the Constituent Assembly of Jammu and
   Kashmir ceased to exist on January 26 1957

Article 370 (3)

(3) Notwithstanding anything in the foregoing provisions of this article,
the President may, by public notification, declare that this article shall
cease to be operative or shall be operative only with such exceptions and
modifications and from such date as he may specify: Provided that the
recommendation of the Constituent Assembly of the State referred to in
clause ( 2 ) shall be necessary before the President issues such a
notification

The Constitution Order 2019

The Constitution (Application to Jammu and Kashmir) Order, 2019 has
replaced Presidential Order of 1954.

In exercise of the powers conferred by clause (1) of article 370 of the
Constitution, the President, with the

concurrence of the Government of State of Jammu and Kashmir, is
pleased to make the following Order:—

1. (a) This Order may be called the Constitution (Application to Jammu
and Kashmir) Order, 2019.

(b) It shall come into force at once, and shall thereupon supersede
the Constitution (Application to Jammu and Kashmir) Order, 1954 as
amended from time to time.

2. All the provisions of the Constitution, as amended from time to
time, shall apply in relation to the State of

Jammu and Kashmir and the exceptions and modifications subject to
which they shall so apply shall be as follows:—

To article 367, there shall be added the following clause, namely:—
For the purposes of this Constitution as it applies in relation to the
State of Jammu and Kashmir—

 ❖ the Sadar-i-Riyasat of Jammu and Kashmir, acting on the advice
   of the Council of Ministers of the State for the time being in
   office, shall be construed as references to the Governor of
   Jammu and Kashmir;
 ❖ references to the Government of the said the Legislative
   Assembly of the State as shall be construed as including
   references to the Governor of Jammu and Kashmir acting on the
   advice of his Council of Ministers; and

❖ In proviso to clause (3) of article 370 of this Constitution, the
   expression “Constituent Assembly of the State referred to in
   clause (2)” shall read “Legislative Assembly of the State”.”

Article 367- Interpretation
(1) Unless the context otherwise requires, the General Clauses Act, 1897 , shall,
subject to any adaptations and modifications that may be made therein under
Article 372, apply for the interpretation of this Constitution as it applies for the
interpretation of an Act of the Legislature of the Dominion of India

(2) Any reference in this Constitution to Acts or laws of, or made by,
Parliament, or to Acts or laws of, or made by, the Legislature of a State, shall be
construed as including a reference to an Ordinance made by the President or,
to an Ordinance made by a Governor, as the case may be

(3) For the purposes of this Constitution foreign State means any State other
than India: Provided that, subject to the provisions of any law made by
Parliament, the

Reorganization Bill
❖ Subsequently, the Jammu and Kashmir Reorganisation Bill, 2019, passed by
    Parliament divides the state of Jammu and Kashmir into two new Union
    Territories (UTs): Jammu & Kashmir, and Ladakh.

❖ This is the first time that a state has been converted into a UT.

❖ Of the six Lok Sabha seats currently with the state of Jammu and Kashmir,
    five will remain with the union territory of Jammu and Kashmir, while one
    will be allotted to Ladakh.

❖ The UT of Jammu and Kashmir will have an Assembly. Pondicherry model
    will apply

❖ Instead of 29, India will now have 28 states. Kashmir will no longer have a
    Governor, rather a Lieutenant Governor like inPuducherry.

● The Bill proposes wide powers to the Lieutenant Governor of the proposed
  Union Territory of Jammu and Kashmir and makes it the "duty" of the Chief
  Minister of the Union Territory to “communicate” all administrative decisions
  and proposals of legislation with the LG. Moreover, all Central laws and State
  laws of J&K would apply to the new Union Territories of J&K and Ladakh.
● Assets and liabilities of J&K and Ladakh would be apportioned on the
  recommendation of a Central Committee within a year.
● Employees of State public sector undertakings and autonomous bodies
  would continue in their posts for another year until their allocations are
  determined. The police and public order is to be with the Centre.

Article 3
1.Formation of new States and alteration of areas, boundaries or names
of existing States: Parliament may by law

(a) form a new State by separation of territory from any State or by
uniting two or more States or parts of States or by uniting any territory
to a part of any State;

(b) increase the area of any State;

(c) diminish the area of any State;

(d) alter the boundaries of any State;

(e) alter the name of any State;

Changes in Aspects of Polity

⮚ J&K Assembly will have a five-year term, not six, as was the earlier
    case.
⮚   Section 32 of the J&K 2019 Bill proposes that the Assembly can
    make laws on any subjects in the State and Concurrent lists except
    on state subjects relating to “public order” and “police”.
⮚   This is similar to Article 239 A of the Constitution that is applicable
    to Union Territories of Puducherry and Delhi.
⮚   However, by insertion of Article 239AA and by virtue of the 69th
    Constitutional Amendment, the Delhi Assembly cannot legislate on
    matters in entry 18 of the State List, i.e. land.
⮚   In the case of J&K, the Assembly can make laws on land.

Change in Constitutional impacts
❖ Jammu & Kashmir will no longer have the separate constitution,
    flag or anthem.
❖   The citizens of Jammu and Kashmir will not have dual citizenship.
❖   As the new union territory of Jammu and Kashmir will be subject
    to the Indian Constitution, its citizens will now have the
    Fundamental Rights enshrined in the Indian constitution.
❖   Article 360, which can be used to declare a Financial Emergency,
    will now also be applicable.
❖   All laws passed by Parliament will be applicable in Jammu and
    Kashmir, including the Right to Information Act and the Right to
    Education Act.
❖   The Indian Penal Code will replace the Ranbir Penal Code of
    Jammu and Kashmir.

Article 35A
added to the Indian Constitution by a Presidential order in 1954 –
issued under Article 370 of the Constitution. This provision allows the
President to make certain “exceptions and modifications” to the
Constitution for the benefit of ‘State subjects’ of J&K. It gives Carte
Blanche powers to State Legislative Assembly to define Permanent
Residents.

It provides the special rights and privileges to the permanent residents
of J&K.

 ⮚ The Fundamental Right to Property is still guaranteed in the state.
   Also, certain special rights are granted to the permanent residents
   of the state with regard to public employment, acquisition of
   immovable property, settlement and government scholarshidefine
   Permanent.

⮚ It disallows people from outside the state from buying or owning
  immovable property there, settle permanently, or avail themselves of
  state-sponsored scholarship schemes.
⮚ Only the Jammu-Kashmir assembly can change the definition of
  Permanent Residents through a law ratified by a two-thirds majority.
⮚ Puran lal Lakhan pal case
⮚ Recent Constitutional order 2019

❖ Note; The law related to ‘State Subjects’ was enacted by Maharaja Hari
  Singh in 1927, when Permanent Residents of the State were given
  special status concerning land ownership.
❖ However, the Land Grants Bill, passed by the government headed by
  late Shaikh Abdullah in 1978, allows the government to lease out
  land to outsiders for 99 years.

Domicile law
● It amended 109 laws and repealed 29 laws of the erstwhile State and inserted
  the ‘domicile’ clause in the Jammu and Kashmir Civil Services
  (Decentralisation and Recruitment) Act, 2010.
● The clause for ‘permanent resident of the State’ under the 2010 Act, has been
  substituted by ‘Domicile’ of the UT.
● The Act pertained to employment in the civil services comprising “district,
  divisional and State” cadre posts.
● Only permanent residents of J&K were eligible to apply for the gazetted and
  non-gazetted posts but now domiciles can also apply for these posts.
● The reservation for domiciles would not apply to Group A and Group B posts,
  and like other UTs, recruitment would be done by the Union Public Service
  Commission

Order of March 31
 ● The domiciles will be eligible for the purposes of appointment to any post
    carrying a pay scale of not more than Level 4.
 ● The Level 4 post comprises positions such as gardeners, barbers, office
    peons and waterman and the highest rank in the category is that of a junior
    assistant.
Criteria for Domiciles
 ● Someone who has resided for a period of 15 years in the UT of J&K or
 ● Someone who has studied for a period of seven years and appeared in Class
    10th/12th examination in an educational institution located in the UT of J&K or
 ● Someone who is registered as a migrant by the Relief and Rehabilitation
    Commissioner (Migrants).

● Children of Central government officials, All India Services, PSUs,
  autonomous body of Centre, Public Sector Banks, officials of statutory bodies,
  Central Universities, recognised research institutes of Centre who have
  served in J&K for a total period of 10 years.
● Children of such residents of J&K who reside outside J&K in connection with
  their employment or business or other professional or vocational reasons but
  their parents fulfil any of the conditions provided.
● The competent authority for a domicile certificate is a Tehsildar

● The order also amended the Jammu and Kashmir State Legislature Members'
  Pension Act,1984 which fixes the pension for former legislators and
  councillors.The notification scraps all pension benefits such as car, driver,
  accommodation, phones, electricity, medical facilities and rent-free
  accommodation to former J&K Chief Ministers.

   Changes to Public Security Act

● The order has also made amendments to the Public Safety Act (PSA) 1978
  by removing a clause that prohibited J&K residents booked under the Act to
  be lodged in jails outside.

● It changes the criteria for appointing the PSA advisory board on the
  recommendation of a search committee headed by the Chief Secretary
  instead of the Chief Justice of the J&K High Court.

● The advisory board has a crucial role to play in release of detenus under the
  PSA.
● It also bars sitting High Court judges to be made part of the board without the
  Chief justice's consultation.
● The order also scraps a clause that deals with the power to regulate place
  and conditions of detention.

Delimitation
2001 census figures were used in the other Union Territories and the
States
The new Union Territory of Jammu and Kashmir (J&K) will be the only
place in the country to undergo a delimitation exercise based on the
population figures recorded in the 2011 census. The latest readjustment of
boundaries of constituencies in the States and other Union Territories has
been done on the basis of the 2001 census and in future, it will be carried
out based on the 2011 census.

Delimitation was last done in J&K in 1995.

Delimitation Process
▪   Section 63 of the Reorganization Act provides for an elected
    legislative assembly and council of ministers headed by the chief
    minister for the UT of J&K.

▪ Earlier in total 111 seats , 4 went to Ladakh. So to 107, 7 more
  added . 24 are in Pok . PoK , so 90 seats of J and K to be delimited.

▪   The council of ministers will be trimmed to 10% of the total
    strength of the legislature.

▪   STs are likely to get a new assembly seat (( Gujjars, Bakarwals and
    Gaddi were given Scheduled Tribe status in 1991 and form 11 per
    cent of the state’s population but still have no political
    reservation), SCs already have a reservation in the assembly).

▪   The assembly term will be six years instead of five.

Delimitation Commission
The Delimitation Commission is appointed by the President of India
and works in collaboration with the Election Commission of India.

Composition:

Retired Supreme Court judge

Chief Election Commissioner

Respective State Election Commissioners

Legislative Council abolished in J&K

❖ Once dominating the news for setting debates and settling sticky
   discourses for 70 years, the Jammu & Kashmir Legislative Council, the
   upper house of the Assembly, was abolished on Thursday as per
   Section 57 of the J&K Reorganisation Bill, 2019, which reduced the
   State to the Union Territories of J&K and Ladakh.
❖ The Council, which had a strength of 36 members, also used to be a
   part of the electoral college for the Rajya Sabha elections.
❖ The Secretary of the Council has been directed to transfer all records
   pertaining to the Council Secretariat, including related legislative
   business, to the Department of Law, Justice and Parliamentary Affairs.

Ladakh

Governance Aspects of Ladakh
1. Now a UT without a legislative Assembly
2. Two districts Leh and Kargil
3. 1 MP from the region
4. 4 MLAs
5. Hill councils

Leh council
The Ladakh Autonomous Hill Development Council, Leh (LAHDC Leh) is an
Autonomous District Council that administers the Leh District of Ladakh,
India.The council was created under the Ladakh Autonomous Hill
Development Council Act 1995,

Powers

The autonomous hill councils work with village panchayats to take decisions
on economic development, healthcare, education, land use, taxation, and local
governance which are further reviewed at the block headquarters in the
presence of the chief executive councillor and executive councillors. The
government of Jammu and Kashmir continues to look after law and order, the
judicial system, communications and the higher education in the districts.

COMPOSITION

 ❖ The council is composed of 30 Councillors of which 26 are
   directly elected and 4 are nominated members.
 ❖ The executive arm of the council consists of an executive
   committee composed of a Chief Executive Councillor and four
   other executive councillors

Note.

 ⮚ A hill council for Leh district was formed in 1995 and the council
   for Kargil district was formed in 2003
 ⮚ Does not come. Under 5th and 6th schedule

Fiscal Federalism - 15th Finance Commission
❖ Constituted by the President in November 2017
❖ It is headed by N K Singh
❖ The recommendations would be applicable for the period from
   2021 -2026
❖ Terms of References
❖ The distribution of tax proceeds between the centre and states
❖ Principles governing grant in aid to the states
❖ Measures to be taken to augment the consolidated fund of states
❖ Review the impact of the 14th Finance Commission
   recommendations on the fiscal position of the centre

❖ Review the debt level of the centre and states, and recommend a
   roadmap
❖ Study the impact of GST on the economy
❖ Recommend performance-based incentives for states based on
   their efforts to control population, promote ease of doing
   business, and control expenditure on populist measures, among
   others
❖ Should there be a provision of revenue deficit grants?

❖ It can establish committees under it for Specialization

Interim Report
Key recommendations in the first report (2020-21 period) include:

Devolution of taxes to states: The share of states in the centre’s taxes is
recommended to be decreased from 42% during the 2015-20 period to
41% for 2020-21. The 1% decrease is to provide for the newly formed
union territories of Jammu and Kashmir, and Ladakh from the resources
of the central government.

Criteria

Income distance: Income distance is the distance of the state’s income
from the state with the highest income.

Demographic performance: The Terms of Reference (ToR) of the
Commission required it to use the population data of 2011 while making
recommendations.

It has assigned 15% weight to the 2011 population, There was considerable
controversy over the terms of reference of the Commission requiring it to use
2011 population in its formula by the States that had taken initiatives to
arrest population growth.
By keeping the weight of 2011 population at 15% and giving an additional
12.5% to demographic performance which is the inverse of fertility rate, the
Commission has shown sensitivity to the concerns of these States.

Forest and ecology: This criterion has been arrived at by calculating the
share of dense forest of each state in the aggregate dense forest of all
the states.

It has reduced the weight of income distance to 45%, increased the
weight to forest cover and ecology to 10% and 12.5% weight to
demographic performance and 2.5% weight to tax effort.

Tax effort: This criterion has been used to reward states with higher
tax collection efficiency. It has been computed as the ratio of the
average per capita own tax revenue and the average per capita state
GDP during the three-year period between 2014-15 and 2016-17.

Grants in Aid

▪   Revenue deficit grants,
▪   grants to local bodies, and
▪   disaster management grants.
▪   Sector specific Grant's
▪   Special Grant's to Karnataka, Mizoram and
    Telangana

Grants in Aid
❖ The recommended grants for local bodies amount to ₹90,000 crore
  comprising ₹60,750 crore for panchayats and the remaining ₹29,250
  crore for municipal bodies. All the three layers of panchayats will
  receive the grant and 50% of the grant is tied to improving sanitation
  and supply of drinking water; the remaining is untied. In the case of
  municipal bodies

❖ In the case of disaster relief, the Commission has recommended the
  creation of disaster mitigation fund at the Central and State levels.
  For disaster management,

Questions
 1. Consider the following statements
    1. Jammu and Kashmir is now a UT modelled on Delhi and
    Pondicherry
    2. Before revocation of Article 370,Union could exercise its
    usual powers only on residuary subjects

Which of the above statements is/are correct?

 a.   1 only
 b.   2 only
 c.   Both 1 and 2
 d.   Neither 1 nor 2

2. Leh Hill council is a body

 1. Established in 2003
 2. Established under sixth schedule

Select the correct answer using the codes below:

 a.   1 only
 b.   2 only
 c.   Both 1 and 2
 d.   Neither 1 nor 2

3. Asymmetric Federalism in India:

 1. Is a Constitutionally mandated arrangement
 2. Was devised keeping in mind the plural aspects of Indian culture

Select the correct answer using the codes below:
 (a) 1 only
 (b) 2 only
 (c) Both 1 and 2
 (d) Neither 1 nor 2

Strategy Talk
How necessary is remembering Articles of
Constitution forPrelims?

manjunath.manifestias@gmail.com