The Jammu and Kashmir Reorganisation Act 2019 did something the reorganisation power had never done in the history of the Union. Parliament has used that power to create States, to divide States, to merge territories and to rename units, and every exercise of it before 2019 either raised a unit in status or rearranged units of equivalent standing. This Act took an existing State of the Union and extinguished it, replacing it with two Union territories, one of which was given a legislature and one of which was not. The constitutional question the Act poses is therefore not the familiar question whether a boundary may be redrawn. It is whether a constituent unit of the federation may be removed from the federal tier altogether, and that question, after full argument before a Constitution Bench of the Supreme Court, remains undecided.

Stated in terms that the measure’s supporters and its opponents would each recognise, the disagreement is this. The Union government’s position is that the Constitution’s reorganisation power is wide enough to form Union territories out of the territory of a State, that the special provision governing Jammu and Kashmir was by its own heading a temporary provision, and that applying the Constitution in full and placing the territory on the same administrative footing as the rest of the Union completed an integration that the temporary provision had deferred. The position of the petitioners who challenged the measures, and of the State’s principal regional parties, is that a State is a unit of the federal structure rather than a creature of Parliament’s convenience, that the conversion removed an elected government’s authority over its own subjects, and that the steps were taken at a moment when the State’s own legislature was not functioning, so that the consultation the Constitution contemplates was conducted with Parliament standing in the State’s place. This article sets out the instruments in sequence, states what the Act itself provided in its own terms, gives each side’s case in the form its proponents make it, separates the disputes of fact from the disputes of value, and records precisely what the Supreme Court decided and what it did not.

The constitutional position the Act inherited

The State that the Act replaced occupied a position in the Constitution that no other State occupied. When the Constitution commenced on 26 January 1950, Article 370, placed in Part XXI under the heading of temporary, transitional and special provisions, governed the relationship between the Union and the State of Jammu and Kashmir. Its first clause confined Parliament’s power to make laws for the State, in respect of subjects in the Union List and the Concurrent List other than those corresponding to defence, foreign affairs, finance and communications in the Instrument of Accession, to matters declared by the President to correspond, and to other matters specified by the President with the concurrence of the Government of the State. Its third clause empowered the President to declare by public notification that the article would cease to be operative, or would operate with modifications, but required the recommendation of the Constituent Assembly of the State before any such notification issued. The Constituent Assembly of the State completed its work and dispersed in 1957 without making a recommendation under that clause, and the State adopted its own Constitution, which came into force on 26 January 1957 and which declared the State to be an integral part of the Union of India while providing for its governance in matters on which the Union’s Constitution did not extend.

The working relationship between the Union and the State was in practice constructed by presidential orders under the first clause of Article 370. The Constitution (Application to Jammu and Kashmir) Order, 1954, issued on 14 May 1954 with the concurrence of the State’s government, applied the Union’s Constitution to the State with extensive exceptions and modifications, and inserted Article 35A, which empowered the State’s legislature to define the classes of persons who were permanent residents of the State and to confer on them special rights and privileges in public employment, in the acquisition of immovable property, in settlement and in scholarships and other aid. Across the decades that followed, further orders under the same clause extended the great majority of the Union Constitution’s provisions to the State, so that by 2019 the practical content of the special position had narrowed considerably, but the formal structure remained: the provisions that applied did so by presidential order under a clause that contemplated the State’s concurrence, the State had a constitution of its own, its legislature legislated on the residuary subjects that elsewhere belonged to the Union, and the permanent resident definition carried consequences for employment and land that applied nowhere else in the Union.

The permanent resident regime deserves a paragraph of its own, because it is the part of the inherited position that reached furthest into private life. The category descended from the State Subject definitions of the princely State, laid down by notifications of Maharaja Hari Singh in 1927 and 1932, which graded the State’s subjects by their connection with the State and attached rights to the grades. Article 35A constitutionalised the category’s protection, and the Constitution of Jammu and Kashmir, in its Section 6, defined permanent residents by descent and residence on the State’s own terms, while its later sections carried the category through the State’s public law. Under the State’s legislation built on the definition, only permanent residents could be appointed to State services, acquire immovable property in the State, settle in the State or receive State scholarships and aid, and the State’s land laws restricted transfer of agricultural land outside the class. The regime was defended in the State as the safeguard of a small population’s land and employment against the demographic weight of the rest of India, and attacked outside it, and by the excluded communities within it, as a hereditary privilege inconsistent with the equality the Union’s Constitution promises its citizens everywhere else. Both descriptions of the regime are accurate statements of what it did; they differ on what it was for.

The immediate setting of the Act was a period of central rule. The coalition government of the State fell in June 2018, and the State was placed under Governor’s rule under its own Constitution. The Legislative Assembly, which had been kept in suspended animation, was dissolved by the Governor on 21 November 2018. On 19 December 2018 the President issued a Proclamation under Article 356 of the Constitution, the provision under which the President, on being satisfied that the government of a State cannot be carried on in accordance with the Constitution, may assume the functions of the State government and declare that the powers of the State legislature shall be exercisable by or under the authority of Parliament. The Proclamation was approved by both Houses and was extended in the middle of 2019. The consequence material to this article is the one the Proclamation itself states: when the August 2019 steps were taken, the powers that the Constitution of India and the Constitution of the State vested in the State’s legislature stood transferred to Parliament, and the office that the special provision named in several of its processes, the Government of the State, was the Governor administering the State under the President’s authority.

The road to August 2019: accession, the dispersed Assembly and the earlier litigation

The legal materials of August 2019 cannot be understood without the three features of the earlier record that both sides used. The first is the manner of the State’s accession. The Maharaja of Jammu and Kashmir executed an Instrument of Accession to India in October 1947 on the three subjects of defence, foreign affairs and communications, and Article 370 was the constitutional form the Constituent Assembly of India gave to a relationship that the accession instrument did not complete. The article was moved in the Constituent Assembly by N. Gopalaswami Ayyangar, who explained it as an arrangement adapted to the special conditions of the State and to the circumstance that the State’s own Constituent Assembly, once convened, would settle the relationship’s permanent form. The Constituent Assembly of the State did convene, adopted the State’s Constitution in 1956 and dispersed in 1957, and the recommendation contemplated by the proviso to Article 370(3) was never made. On one side of the later argument, that silence was read as the settlement of 1956 made permanent by the only body competent to disturb it. On the other side, it was read as leaving the clause (3) power exactly where the text had left it, exercisable by the President with the recommendation of whatever body the interpretation clause could legitimately supply.

The second feature is the body of litigation that had construed the clause (1) power across the decades. In Puranlal Lakhanpal v President of India in 1961, the Supreme Court upheld a wide reading of the President’s power under Article 370(1) to apply the Constitution with modifications, holding that modification in that clause bore its widest meaning. In Sampat Prakash v State of Jammu and Kashmir in 1968, the Court rejected the argument that Article 370 had spent itself once the State’s Constituent Assembly dispersed, and held that the clause (1) power continued so long as the article itself continued. In Mohammed Maqbool Damnoo v State of Jammu and Kashmir in 1972, the Court read the expression Government of the State, in the explanations that the presidential orders had built upon the article, as extending to the Governor, a reading that mattered in 2019 when the concurrence for Constitution Order 272 was the Governor’s. In State Bank of India v Santosh Gupta in 2016, the Court held that the State retained no sovereignty, that its Constitution was subordinate to the Constitution of India and that the residents of the State were first and foremost citizens of India. Each of these decisions supplied a premise to the Union’s case in 2019, and each was answered by the petitioners with the same observation: that none of them had decided the questions the August measures actually raised, the use of the interpretation article to rewrite clause (3)’s proviso, or the conversion of a State into Union territories, neither of which had ever been attempted before.

The third feature is the political sequence of the year before the Act. The coalition between the Jammu and Kashmir Peoples Democratic Party and the Bharatiya Janata Party, which had governed the State since 2015 under an agenda of alliance that expressly deferred the parties’ opposed positions on Article 370, ended in June 2018 when the Bharatiya Janata Party withdrew from it. The Chief Minister, Mehbooba Mufti, resigned, Governor’s rule followed under the State’s Constitution, and the Assembly was first suspended and then, on 21 November 2018, dissolved, in circumstances that were themselves litigated without success. President’s rule under Article 356 followed on 19 December 2018. The consequence for the statute book is the one the instruments section below develops: throughout the period in which the August measures were prepared and passed, every function that the constitutional scheme assigns to an elected State government and legislature was being exercised, in the State, by the Governor and by Parliament.

The instruments of August 2019, in their sequence

Four instruments, made within three days, carried the change, and public discussion persistently assigns to the Reorganisation Act effects that belong to the two Constitutional Orders. The sequence has to be kept separate, because the legal basis of each step is different and because the challenges to each were different.

What did the Reorganisation Act itself do, as distinct from the Constitutional Orders?

The Act did the territorial and institutional work: it formed the two Union territories, constituted the legislature of one of them, fixed their representation in Parliament, continued the High Court, apportioned assets, liabilities and services, and carried the tables that extended, repealed and continued the laws in force.

The ending of the special constitutional position was not the Act’s work. That was done by the two Constitutional Orders of 5 and 6 August 2019, which applied the Constitution in full to the State and declared Article 370 inoperative except in a reduced form. The Act presupposed those Orders and was passed in the same sittings.

On 5 August 2019 the President issued the Constitution (Application to Jammu and Kashmir) Order, 2019, numbered Constitution Order 272, in exercise of the power under clause (1) of Article 370, with the concurrence of the Government of the State, which at that date meant the Governor acting under the Proclamation. The Order superseded the Order of 1954 altogether and applied all the provisions of the Constitution of India, as amended from time to time, to the State of Jammu and Kashmir. It also added a paragraph to clause (4) of Article 367, the interpretation article, directing how references in Article 370 were to be read: the reference to the Constituent Assembly of the State in the proviso to clause (3) was to be read as a reference to the Legislative Assembly of the State, the reference to the Government of the State was to be read as including the Governor, and allied expressions were adjusted to correspond. Because the Order of 1954 fell, Article 35A fell with it, and the Constitution of Jammu and Kashmir, whose operative provisions depended on the framework the Order replaced, ceased to govern.

The paragraph Constitution Order 272 added to Article 367 is the hinge of the whole sequence, and its substitutions should be read exactly. It directed that the reference in Article 370 to the Constituent Assembly of the State, in the proviso to clause (3), be read as a reference to the Legislative Assembly of the State; that references to the Government of the State be read as references to the Governor of Jammu and Kashmir; that the reference to the Sadar-i-Riyasat, the office the State’s Constitution had created for its head and which the presidential orders had mapped onto the Governor, be read in the same way; and that references in the article to the Constitution of Jammu and Kashmir and to its provisions fall away with the application of the Union’s Constitution in full. Each substitution was framed as interpretation. Their combined effect was to make Article 370 workable on the Union’s reading: the recommendation the proviso required could be given by the Legislative Assembly, whose powers at that moment Parliament held, and the concurrence the first clause required could be given by the Governor, who at that moment held the State’s government under the Proclamation. The petitioners’ objection to the paragraph, that an interpretation clause was being used to amend the substantive distribution of power, is stated in the case against below; the Union’s answer, that the Constituent Assembly’s permanent disappearance had left the proviso pointing at a body that no longer existed and that construction must supply a living referent, is stated in the case for it.

On the same day the statutory resolution contemplated by that machinery was moved in the Council of States, and on 6 August 2019 the President issued the Constitution (Application to Jammu and Kashmir) Order, 2019, numbered Constitution Order 273, declaring under clause (3) of Article 370 that all the clauses of that article would cease to be operative except clause (1) in a substituted form, under which all provisions of the Constitution, as amended from time to time, apply to the State, and the article’s own operation is stated in those terms. The resolution recommending the declaration was adopted by the Council of States on 5 August and by the House of the People on 6 August 2019. The Reorganisation Bill travelled the same route on the same days: the Council of States passed it on 5 August 2019 by 125 votes to 61, and the House of the People passed it on 6 August 2019 by 376 votes to 67. The Bill received the President’s assent on 9 August 2019 and became Act 34 of 2019. Section 2 of the Act defined the appointed day by reference to the day the Central Government would notify, and by notification the appointed day was fixed as 31 October 2019. Between assent and the appointed day the State of Jammu and Kashmir continued in being under the new constitutional position; on the appointed day it ceased to exist, and the two Union territories came into being.

The two days in Parliament

The parliamentary passage deserves a section of its own, because the procedure by which the instruments moved is part of the legal record and part of the critique. The Constitution Order 272 was laid before the Council of States on the morning of 5 August 2019 together with the statutory resolution under Article 370(3) and the Reorganisation Bill, all three moved by the Home Minister, Amit Shah, who opened the debate with a statement of the government’s case: that Article 370 was temporary, that it had obstructed the application of the Constitution’s rights and welfare provisions to the State, and that the measures would place the State’s people in the position of citizens elsewhere in the Union. The Council of States debated the resolution and the Bill through the day and adopted the resolution and passed the Bill in the evening, by 125 votes to 61 on the Bill. The House of the People took up the resolution and the Bill on 6 August and passed the Bill by 376 votes to 67, after a debate in which the Prime Minister, Narendra Modi, addressed the House on the government’s intentions for the territories, including the statement that the Union territory status of Jammu and Kashmir was not intended to be permanent.

The division of opinion in the two Houses did not follow the ordinary lines of government and opposition, and the fact is material to any account of the measure’s support. In the Council of States, parties outside the governing alliance, including the Biju Janata Dal, the AIADMK, the YSR Congress Party, the Telugu Desam Party and the Aam Aadmi Party, voted for the resolution and the Bill, several of them separating their support for the ending of the special position from reservations about the conversion into Union territories. The opposition was led by the Indian National Congress, the Dravida Munnetra Kazhagam, the Trinamool Congress, the Rashtriya Janata Dal and the Left parties, whose members argued the federalism and consultation objections that the petitioners later carried to the Supreme Court, and the members of the National Conference and the Peoples Democratic Party opposed the measures as the representatives of the State most directly affected. The speed of the passage, introduction to assent in five days, on a Bill whose First Schedule amended the Constitution’s Fourth Schedule and whose Fifth Schedule rewrote the law of a State, was itself made a ground of objection in the debate and in the petitions: the critics’ point was not that Parliament lacked the sitting hours but that a measure of this consequence was carried without the committee scrutiny that a Bill of ordinary content would routinely receive, no select committee having been constituted for it. The government’s answer, on the record, was that the constitutional position had been debated for seventy years and that the measures required no further gestation. Both statements are part of the passage record, and the statute that resulted bears the mark of the route: it is a complete and carefully drafted instrument, and it was enacted at the pace of an ordinance.

What the Jammu and Kashmir Reorganisation Act 2019 provides

The Act has 103 sections arranged in fourteen parts, with five schedules. Its architecture follows the pattern that the general guide to state reorganisation in this series describes, and the reader who wants the constitutional mechanism of reorganisation itself, the conditions Article 3 attaches and the case law on the State legislature’s views, should read that account of the reorganisation power and its standard heads alongside this one. What follows is the 2019 Act’s own content.

Part II carries the territorial settlement. Section 3 formed the Union territory of Ladakh, comprising the districts of Leh and Kargil, which had been the Ladakh division of the former State. Section 4 formed the Union territory of Jammu and Kashmir, comprising every other district of the former State, specified in the section by name. The existing State of Jammu and Kashmir thereupon ceased to exist as a State of the Union, and the number of States fell from twenty-nine to twenty-eight. Section 13 applied the provisions of Article 239A of the Constitution, the provision under which the Union territory of Puducherry has a legislature, to the Union territory of Jammu and Kashmir, and Part III then built the institutional structure on that foundation. There is to be an Administrator appointed by the President under Article 239, designated the Lieutenant Governor. There is to be a Legislative Assembly. Section 53 capped the Council of Ministers at ten per cent of the total membership of the Assembly, the Chief Minister included, and the Council aids and advises the Lieutenant Governor in the exercise of his functions in relation to matters on which the Assembly has power to make laws, except where the Act requires him to act in his discretion. The Lieutenant Governor may promulgate ordinances while the Assembly is not in session, on the Puducherry pattern, and a Bill passed by the Assembly requires his assent, with the familiar options of assent, withholding, return for reconsideration and reservation for the President.

Section 14 fixed the Assembly’s composition. The total number of seats to be filled by direct election was set at 107, but the section immediately qualified that figure: so long as the area of the territory under the occupation of Pakistan remains so occupied and its people do not elect representatives, twenty-four seats shall remain vacant, shall not be taken into account in reckoning the total membership of the Assembly, and shall be excluded from the delimitation of constituencies. The Assembly the Act first constituted was therefore an Assembly of 83 elected members, the same elected strength the former State’s Assembly had for its Jammu, Kashmir and Ladakh divisions combined, minus the four seats the Ladakh division had returned. Section 14 also required seats to be reserved for the Scheduled Castes and the Scheduled Tribes in proportion, as nearly as may be, to their population in the territory, a requirement whose delimitation consequences are taken up below. Section 57 abolished the Legislative Council of the former State, the upper house of its bicameral legislature, and provided for the lapse of business pending before it; the Union territory’s legislature is unicameral.

Which subjects are withheld from the Legislative Assembly of Jammu and Kashmir?

Two, namely public order and police. Section 32 empowers the Assembly to make laws on any matter in the State List of the Seventh Schedule except the subjects at entries 1 and 2, which it names as Public Order and Police, and on any matter in the Concurrent List so far as it applies to Union territories.

On those two subjects, and on every subject outside the Assembly’s grant, legislative authority rests with Parliament, and executive authority in the territory is exercised through the Lieutenant Governor. Section 32 adds that nothing in it derogates from Parliament’s power to legislate for the territory on any matter at all.

The exclusion is the single most consequential sentence in the Act for the daily distribution of power, and it is best understood against the general scheme of the Seventh Schedule and its three lists, which allocates subjects between the Union and the States. A State legislature commands the whole of the State List, including the two entries with which the policing of daily life is concerned. The Jammu and Kashmir Assembly commands the State List minus those two entries, together with the Concurrent List, and it commands even that reduced field subject to Parliament’s undiminished power to legislate on the same matters and to the Lieutenant Governor’s position in the assent and administration provisions. Public order and police remain with the Union, administered through the Lieutenant Governor. The same section of the Act addresses finance and procedure on the established pattern: money Bills require the Lieutenant Governor’s recommendation, the annual financial statement is laid in his name, and the Consolidated Fund of the territory is constituted by the Act itself, since a Union territory has no place in the constitutional finance chapters written for States.

What does the Lieutenant Governor do that a Governor of a State does not?

He governs, in a defined field, rather than reigning over a government that governs. A State Governor acts on the aid and advice of a Council of Ministers across the whole executive field of the State, save where the Constitution requires discretion. The Lieutenant Governor, by contrast, is the Administrator of a Union territory, appointed under Article 239.

The executive power of the territory is his, exercised directly or through officers subordinate to him; the Council of Ministers aids and advises him only on matters within the Assembly’s legislative field, and on public order and police, which are outside that field, there is no ministerial advice for him to receive from the territory’s government at all. The Act gives him a discretionary role of the kind the National Capital Territory provisions made familiar, including the power to differ from his Council and to refer a difference to the President, and his ordinance power operates when the Assembly is not sitting. Part VII also carries the failure-of-machinery provision, under which the President may suspend the Act’s governmental provisions if satisfied that the administration of the territory cannot be carried on in accordance with them, the analogue for this territory of the Article 356 mechanism.

The contrast with Ladakh completes Part II’s design. Section 58 provides that the Union territory of Ladakh shall be administered by the President acting, to such extent as he thinks fit, through an Administrator appointed under Article 239 and designated the Lieutenant Governor. There is no legislature, no Council of Ministers and no assembly constituency machinery in the Act for Ladakh beyond its single parliamentary seat. The two hill councils of the former State, the Ladakh Autonomous Hill Development Councils for Leh and Kargil, which are creatures of a State law that the Act continued, remained in place as the territory’s elected local institutions, but they are statutory bodies under the law that created them, not legislatures under the Constitution, and the Act gave Ladakh no equivalent of Part III.

The Act part by part: the remaining provisions

The sections summarised above carry the Act’s constitutional weight, but the instrument’s working content is spread across all fourteen parts, and a reader examining the Act for its detail should have the whole map. Part I is preliminary: it gives the short title, defines the appointed day and the expressions the Act uses, including the definition of law that sweeps in the former State’s ordinances, regulations and instruments having the force of law, so that the transition provisions catch the whole of the State’s legal output and not only its Acts.

Part II, after the formation sections, amends the First and Fourth Schedules of the Constitution by the Act’s own First Schedule, settles the Council of States and House of the People representation described in the next section, and provides for sitting members, for the continuance of the former State’s laws officers and for the delimitation of parliamentary constituencies as an interim matter, the Delimitation of Parliamentary Constituencies Order being amended by the Second Schedule to reflect the six seats and their names. Part III is the institutional core for the territory with a legislature, and its later sections repay attention, because they reproduce, with adjustments, the whole code of a working assembly: the duration of the Assembly, its sessions and prorogation, the Speaker and Deputy Speaker, the special address of the Lieutenant Governor at the first session after each general election and at the first session of each year, the rights of ministers and of the Advocate General to speak in the Assembly, the voting rules and the Speaker’s casting vote, the disqualification of members, on which questions are decided by the Lieutenant Governor in accordance with the opinion of the Election Commission, the application of the Tenth Schedule against defection, the privileges of the House and its members, and the salaries of members. Its financial sections follow the constitutional pattern for a legislature of this class: the annual financial statement laid in the Lieutenant Governor’s name, the procedure on money Bills, appropriation from the Consolidated Fund of the territory, supplementary and excess grants, and votes on account, with the Lieutenant Governor’s recommendation required before a money Bill or a demand involving expenditure is moved.

The same Part contains the provisions that define the executive’s shape between elections. The Lieutenant Governor’s ordinance power operates when the Assembly is not in session and the ordinance lapses six weeks after the Assembly reassembles, on the familiar pattern. The Council of Ministers provisions fix the ten per cent ceiling, the appointment of the Chief Minister by the Lieutenant Governor, the pleasure doctrine under which ministers hold office, and the duty of the Chief Minister to communicate the Council’s decisions to the Lieutenant Governor and to furnish information he calls for. The Advocate General, constituted by Part IX, holds office during the Lieutenant Governor’s pleasure and advises the territory’s government on legal matters referred to him, with the right to speak in the Assembly without a vote.

Part VI performs a quieter but durable operation: it continues the Constitution (Scheduled Castes) Order and the Constitution (Scheduled Tribes) Order as they applied to the former State, so that the lists of castes and tribes recognised for the purposes of reservation and of the Constitution’s protective provisions apply in both territories without a gap, and it is on this foundation that the delimitation’s reservation of seats proceeded. Part VII, the miscellaneous and transitional part for the territory with a legislature, carries among other provisions the failure of machinery section, under which the President, on receipt of a report from the Lieutenant Governor or otherwise, if satisfied that the administration of the territory cannot be carried on in accordance with the Act, may by Proclamation assume its functions and declare that the Assembly’s powers shall be exercisable by Parliament, for a period the section limits and Parliament may extend, a provision modelled on Article 356 and used in no other Union territory statute in quite this form. Part XII addresses the former State’s corporations and public undertakings: it empowers the Central Government to constitute advisory committees for the distribution of the undertakings’ sectors and assets between the territories, requires their reports within six months, and obliges the Lieutenant Governor to act on the recommendations within a stated period, a machinery designed for the power, transport and industrial corporations whose assets and staffs straddled the new boundary. The services Part, the assets Part and the legal proceedings provisions complete the transition: suits and proceedings by or against the former State continue by or against the successor territory to which the subject matter belongs, contracts are construed with the appropriate substitution, and the removal of difficulties power stands at the end of the Act to catch whatever the preceding 102 sections missed. Read as a whole, the Act is two instruments in one binding: a constitutional settlement occupying perhaps twenty sections, and a complete code for splitting a State’s government occupying the other eighty, and most of what has been litigated, administered and argued about in the territories since 2019 belongs to the second instrument rather than the first.

Representation in Parliament and the common High Court

Part II also settled the territories in Parliament, amending the Fourth Schedule to the Constitution by the authority Article 4 gives a reorganisation law. The Union territory of Jammu and Kashmir was allotted four seats in the Council of States, and Ladakh none. In the House of the People, the Second Schedule to the Act allotted five parliamentary constituencies to the Union territory of Jammu and Kashmir, named Baramulla, Srinagar, Anantnag, Udhampur and Jammu, and one to Ladakh, so that the six members the former State had returned became five and one. Sitting members were provided for by the ordinary rule: a member whose constituency fell within a successor territory was deemed elected for it, and the terms of sitting members of the Council of States were allotted between the territories by the Act’s scheme.

The distribution of the Council of States seats carries a consequence that was noted in the debates and belongs in any complete account. The four members the former State returned to the Council of States were elected by its Legislative Assembly, and the Act allotted all four seats to the Union territory of Jammu and Kashmir, whose Assembly is their electoral college, while Ladakh, having no legislature, has no route to the Council of States at all and is represented in Parliament by its single member of the House of the People alone. The arrangement follows from the design: a Union territory without a legislature cannot return members to the chamber of the units, and the territories that sit in the Council of States, Delhi and Puducherry among them, do so through their legislatures. Ladakh’s absence from the Council of States is therefore a corollary of Section 58 rather than a separate decision, but it completes the picture of the territory’s position: a single directly elected member in one House, an administrator appointed by the President, and no voice in the chamber whose composition expresses the federal structure, a position its organisations have placed on the list of their grievances against the settlement.

Part VIII dealt with the judiciary. The High Court of Jammu and Kashmir continued in being and became, by Section 75, the common High Court for both Union territories, so that neither territory began life without a constitutional court and no new court had to be constituted on the appointed day. The judges of the former State’s High Court continued as judges of the common court, its jurisdiction and the law administered in it continued, and the court’s name in later usage, the High Court of Jammu and Kashmir and Ladakh, records the two territories it serves. The Act provided for an Advocate General for the Union territory of Jammu and Kashmir, appointed by the Lieutenant Governor from persons qualified to be a High Court judge. For Ladakh, which has no government of its own in the Part III sense, the common court and the Union’s legal machinery carry the corresponding functions. The common court is seated at both Srinagar and Jammu, as the former State’s court had been, and in 2021 it moved to functioning at both seats throughout the year, closing the judicial version of the seasonal movement between the two capitals that the executive’s Darbar Move had embodied, so that the court the two territories share sits permanently in the two cities whose relations have run through the region’s politics since the princely State first administered them as one.

The legislative transition: the Fifth Schedule and the power to adapt

A reorganisation of a State that had its own body of law in fields where other States were governed by central law presented a transition problem of an order no earlier Act had faced. The former State’s statute book contained several hundred enactments, many of them counterparts of central Acts that had never extended to the State, and its land, residency, employment and tenancy law differed from the law of the rest of the Union in ways that reached into individual rights. The Act solved the problem by schedule and by delegated power, and the solution is in the Fifth Schedule, which carries three tables.

The first table listed the central enactments that would apply to both Union territories from the appointed day. The number was 106, and the list reached across the legal system: the Indian Penal Code replaced the Ranbir Penal Code under which offences in the State had been charged, the Code of Criminal Procedure and the Code of Civil Procedure applied in their central form, and the central statutes on subjects as various as the right to information, the right of children to education, Aadhaar, wildlife protection, child marriage and the national commissions entered the territories’ law, in several cases displacing a State counterpart that then fell to be repealed. The second table listed the State laws and Governor’s Acts that the Act repealed: 153 State laws and a further group of Governor’s Acts, including the State’s own right to information statute, its wildlife protection statute and the penal code named above. The third table listed the State laws that continued in force in both territories, 166 in number, among them the territory’s goods and services tax legislation, its panchayati raj law and the statute constituting the hill councils of Ladakh, and a small group of seven State laws continued with amendments specified in the table, among whose effects was the removal of prohibitions on the lease of land to persons who were not permanent residents of the former State. Section 95 and the cognate provisions gave the laws in force territorial continuity, and the courts were directed to construe references to the former State, in any law that continued, as references to the appropriate successor territory.

The content of the first table rewards a closer look, because extension is where the reorganisation entered the law of everyday life. The central personal laws came with it: the Hindu Marriage Act, 1955 and the Muslim Personal Law (Shariat) Application Act, 1937, together with the Muslim Women (Protection of Rights on Divorce) Act, 1986, applied to the territories, so that marriage, divorce and maintenance in the territories came under the same central statutes as the rest of India, displacing the corresponding State enactments. The central statutes of protection and welfare followed: the Prohibition of Child Marriage Act, 2007, the Right of Children to Free and Compulsory Education Act, 2009, the Aadhaar Act, 2016, the National Security Act, 1980, the Wild Life (Protection) Act, 1972 and the National Commission for Minorities Act, 1992, each of which had either not extended to the State or had extended in a form qualified by the presidential orders. The repeals table is the mirror image: among the 153 State laws it struck down were the Jammu and Kashmir Right to Information Act, 2009, whose central counterpart was being extended in its place, the State’s wildlife protection law, the Ranbir Penal Code and the State’s separate laws on subjects from prevention of corruption to the protection of children, in each case because the central statute occupied the field. The continuance table is equally instructive about what reorganisation does not disturb: the territory’s fiscal legislation, its panchayati raj framework, its saffron, horticulture and local taxation statutes and the hill council law of Ladakh all continued, because the Act’s purpose in the schedules was to unify the fields in which India has one law and to preserve the fields in which the territory’s own law was genuinely local.

How were the laws in force adapted after the appointed day?

The Act gave the Central Government a power to adapt and modify any law in force in the territories, by order, within one year from the appointed day, for the purpose of facilitating its application, and a companion power to remove difficulties by order not inconsistent with the Act.

The adaptation power was exercised in a series of orders concentrated in 2020, and it was through those orders, rather than through the Act’s own text, that several of the most searched-for consequences of the reorganisation were effected. The definition that governed eligibility for public employment was rewritten in domicile terms: the domicile rules notified in 2020 made eligibility turn on residence in the territory for fifteen years, or on seven years of study in the territory culminating in appearance in the secondary and higher secondary examinations held there, with further categories for registered migrants and for the children of specified classes of officials, replacing the permanent resident certificate regime that Article 35A had protected and that the former State’s law had administered. Land law was adjusted through the same route and through amendments to continued State laws, removing the permanent resident condition from transactions to which it had attached. The Jammu and Kashmir Reorganisation (Removal of Difficulties) Order, 2019, issued on 30 October 2019, the day before the appointed day, began this process before the territories existed, and the orders that followed under the Act drew an objection that belongs to the critique below: that executive orders under a transitional power were carrying changes of a kind that in a State would have required a legislature. The general position described here is a statement of the statutory scheme and its published instruments; it is not advice on any individual claim to domicile, land or employment, for which the texts of the orders themselves and the limitation periods they carry are what matter.

Readers who keep the Act, its schedules and the adaptation orders together for examination or research purposes are handling a file that rewards order, because the operative rule on any given subject may sit in any of the three layers. The Gazette texts circulate as office documents, and a reader assembling them into a single working file can open and read the Word, Excel and PowerPoint versions in the office file viewer for working documents without converting them first. The point is practical rather than ornamental: the question whether a given State law survived is answered by finding it, or failing to find it, in the second and third tables of the Fifth Schedule, and the question what it means in the territories is answered by the adaptation order that touched it, if one did.

Money, language and the Act’s remaining machinery

Three further parts of the Act deserve record, because they govern the territories’ daily administration and are rarely described. Part X authorised expenditure and the distribution of revenues during the transition: it continued the authorisation of expenditure from the former State’s Consolidated Fund until the new arrangements took hold, constituted the Consolidated Fund of the Union territory of Jammu and Kashmir, and carried the appropriation machinery across the appointed day, so that salaries, pensions and debt charges never lacked legal authority. The annual financial statement of the territory is laid before the Assembly in the Lieutenant Governor’s name, demands for grants are made on his recommendation, and the Comptroller and Auditor General’s audit of the territories proceeds on the footing the Act and the Constitution together supply. For Ladakh, which has no legislature to vote grants, the appropriation is made by Parliament, and the territory’s demands travel with the Union’s budget documents, one of the plainest administrative differences between the two territories the Act created.

The Act also provided for the official languages of the Union territory of Jammu and Kashmir: the Assembly may by law adopt any one or more of the languages in use in the territory as its official language or languages, and until it does so the arrangements the Act records continue. The question was taken up by Parliament itself in 2020, in the interval before any Assembly existed, and the Jammu and Kashmir Official Languages Act, 2020 named five official languages for the territory: Kashmiri, Dogri, Urdu, Hindi and English. The episode is a small working illustration of Section 32’s saving of Parliament’s power: a subject squarely within the Assembly’s field was legislated by Parliament because there was no Assembly, and the law so made stands until the Assembly chooses to revisit it.

Part XIV, the miscellaneous part, carried the consequential amendments the reorganisation required across the statute book, substituting the names of the two territories for the name of the former State in the States Reorganisation Act, 1956 and in the representation and delimitation statutes, and it carried the two transitional powers on which the legislative transition section above dwelt, the power to adapt laws and the power to remove difficulties. It also carried the Act’s treatment of the Advocates and legal functionaries of the former State and the continuance of the Advocate General’s office for the territory with a legislature. The machinery parts are unglamorous, and they are where a reorganisation Act succeeds or fails in practice, because the appointed day arrives on a fixed date whether or not the cadres have been divided, the funds constituted and the registers transferred, and the parts that carry those functions are the parts that officials in both territories consulted daily in the Act’s first years.

Assets, liabilities and services

Part XI apportioned the assets and liabilities of the former State between the two territories. The Act directed the apportionment to be made on the recommendations of a committee constituted by the Central Government, whose report was to be made within twelve months, and it supplied the principles: assets located in a territory pass to that territory, assets serving both are apportioned, the public debt of the former State is divided between the successors, and pension and provident fund liabilities follow rules the Act states, with the Union territory of Jammu and Kashmir carrying the larger share of the obligations that could not be localised. The provisions as to corporations in the following Part dealt with the boards and companies of the former State, several of which, the power development and road transport undertakings among them, had to be bifurcated or reconstituted for the territories they served, a process that proceeded by orders and schemes after the appointed day and in some instances ran for years. The committee the Act’s scheme produced was constituted in the autumn of 2019 under the chairmanship of Sanjay Mitra, a former Defence Secretary, and was charged with the apportionment of the former State’s assets, liabilities and posts between the territories; its work proceeded company by company and department by department, and the apportionment of the State’s corporations, including the Jammu and Kashmir Bank, in which the successor administrations hold the State’s former shareholding between them, and the power development undertakings, whose assets are fixed in the ground they occupy and whose liabilities were the harder half of the exercise, occupied the years after the appointed day. The pattern is the standard one in contested reorganisations: the Act supplies principles and a committee, the committee supplies a report, and the report’s application to particular institutions generates the disputes, over valuations, over headquarters and over the employees attached to each undertaking, that fill the administrative record of the successor units for a decade.

The composition of the Assembly was completed after the 2024 election in a manner that itself illustrated the Act’s distribution of power. The Lieutenant Governor nominated the five members for whom the Act and its 2023 amendment provide, two women members under the original provision and three members under the amendment, two from the Kashmiri migrant community, one of them a woman, and one from among the persons displaced from the occupied area, and the nominations were made in October 2024 on the Lieutenant Governor’s own authority, before the elected government was formed. The parties that formed the government objected that nominations carrying votes in the Assembly, including on a motion of confidence, ought in a legislature of this pattern to follow the aid and advice of the Council of Ministers once constituted, and the Union’s position was that the Act confers the nomination on the Lieutenant Governor in terms that do not import that condition. The point is a small one in numbers and a large one in principle, because it asks whose instrument the nominated element of a Union territory legislature is, and the Act answers the question in the Lieutenant Governor’s favour by the plain route of conferring the power on him without qualification.

Part XIII dealt with services, the head under which a reorganisation touches the largest number of individual lives. The members of the All India Services cadres borne on the cadre of the former State continued, on and after the appointed day, to serve in connection with the affairs of the two territories, and the Act provided for their allocation between the territories; officers appointed after the appointed day to serve in either territory were borne on the Arunachal Pradesh, Goa, Mizoram and Union Territories joint cadre, the standard cadre for Union territories. The State’s own services, the administrative, police, judicial and other services recruited by the former State’s commissions, were allocated between the territories by the advisory machinery the Act contemplated, and the employees of the former State continued in service on the same terms until allocation orders settled their position. The disputes that followed, over seniority, over the allocation of particular officers and over the continuance of bodies such as the State’s public service commission functions, which passed to the Union Public Service Commission for the territories, are of the standard reorganisation kind, and the Act’s own scheme, allocation by committee advice with the Central Government deciding, predicted them. Two later changes completed the services settlement. In January 2021 the Union merged the Jammu and Kashmir cadre of the All India Services into the joint cadre for Arunachal Pradesh, Goa, Mizoram and the Union territories, so that the distinct cadre the former State had maintained since the services were organised ceased to exist and officers for both territories are drawn from the common pool. And the territory’s own administrative service, the Kashmir Administrative Service and its successors in the Jammu and Kashmir Administrative Service, continued as the territories’ civil service under the new dispensation, recruited through the Union Public Service Commission’s examinations and the territory’s own processes in the pattern the Act set. The biannual Darbar Move, the migration of the seat of government between Srinagar in summer and Jammu in winter that the former State had practised for well over a century and that reorganisations ordinarily leave alone, was discontinued by the territory’s administration in 2021, a decision recorded here because it illustrates the reach of a Union territory administration into arrangements that in a State would have been matters for an elected government’s political judgment.

Delimitation and the Assembly that resulted

Part V of the Act, Sections 59 to 64, governed the delimitation of constituencies, and Section 60 provided that the number of seats in the Assembly would stand increased from 107 to 114 when the relevant figures of the first census taken after the year 2026 were published, with the delimitation to be conducted on the basis the Act specified. In the event, the exercise was taken up at once: a Delimitation Commission for the Union territory was constituted in March 2020, chaired by Justice Ranjana Prakash Desai, a retired judge of the Supreme Court, with the Chief Election Commissioner and the State Election Commissioner of the territory as ex officio members, working with associate members drawn from the territory’s members of Parliament. The governing logic of delimitation in India, the constitutional freezes on interstate allocation and the distinction between the national exercises and the separate treatment this territory has repeatedly required, is set out in the series article on the Delimitation Acts and the redrawing of seats, and what follows is only the 2022 outcome.

The Commission published draft proposals in the course of its work and received objections and suggestions from the public and from the parties, and its associate members drawn from the National Conference recorded their disagreement with the proposals in writing, objecting to the allocation of the new seats between the divisions and to the redrawing of particular constituencies, while the Bharatiya Janata Party’s representatives supported the exercise. The Commission’s final order was made on 5 May 2022 and took effect on 20 May 2022 by notification under the Act. It delimited ninety Assembly constituencies, forty-three in the Jammu division and forty-seven in the Kashmir division, against the eighty-three of the Act’s original map, in which the Kashmir division had returned forty-six members, the Jammu division thirty-seven and Ladakh four. It reserved nine seats for the Scheduled Tribes, six in the Jammu division and three in the Kashmir division, the first reservation of Assembly seats for the Scheduled Tribes in this territory’s history, and seven seats for the Scheduled Castes, all in the Jammu division. It redrew the five parliamentary constituencies so that each comprises eighteen Assembly constituencies, joining the Anantnag region of the Kashmir division with Rajouri and Poonch of the Jammu division in a single parliamentary seat. The Commission recommended, and Parliament later enacted by the Jammu and Kashmir Reorganisation (Amendment) Act, 2023, that the Lieutenant Governor nominate two members of the Assembly from the Kashmiri migrant community, one of whom shall be a woman, and one member from the community of persons displaced from the area of the former State under the occupation of Pakistan, in addition to the provision in the Act as passed for the nomination of two women members if the Lieutenant Governor is of the opinion that women are not adequately represented. The nominated members stand apart from the ninety elected seats, and the Assembly that the delimitation produced is therefore a house of ninety elected members, with up to five nominated members under the provisions described, and twenty-four seats that no election will fill.

Why do twenty-four seats in the Assembly remain vacant?

Because the Act says they must. Section 14 reserves twenty-four of the Assembly’s seats for the area of the former State that is under the occupation of Pakistan, and provides that those seats shall remain vacant, shall not be counted in the Assembly’s total membership, and shall be excluded from delimitation.

The seats remain vacant until that area ceases to be so occupied and its people elect their representatives. The device is inherited: the Constitution of the former State made the same reservation, and its Assembly likewise sat short of its nominal strength. The twenty-four seats are a statement of territorial claim carried in the composition of the legislature itself, and their vacancy is a condition of the Act’s text, not a failure to hold elections.

Elections to the Assembly on the delimited map were held in three phases on 18 and 25 September and 1 October 2024, the first elections to a legislature for the territory since the former State’s Assembly elections of 2014, and the results were declared on 8 October 2024. The Jammu and Kashmir National Conference won forty-two seats and formed the government with support from outside its own ranks; the Bharatiya Janata Party won twenty-nine, the Indian National Congress six and the Jammu and Kashmir Peoples Democratic Party three, with the remaining seats divided among smaller parties and independents. Omar Abdullah was sworn in as the first Chief Minister of the Union territory on 16 October 2024. The Legislative Assembly so elected adopted, in its first session in November 2024, a resolution recording its view that statehood should be restored and calling on the Union to begin that process, a resolution whose legal character is that of an expression of the Assembly’s opinion, since the restoration of statehood is not within the Assembly’s own competence.

The territories governed without an elected Assembly, 2019 to 2024

Between the appointed day and the swearing in of the first Chief Minister in October 2024, the Union territory of Jammu and Kashmir was governed without the institution Part III of the Act had designed for it. The Legislative Assembly could not be constituted until the delimitation the Act mandated had been carried out, and in that interval the Lieutenant Governor administered the territory, its budget was passed by Parliament in the annual Jammu and Kashmir appropriation legislation, and laws for the territory were made by Parliament or by the Lieutenant Governor’s ordinances under the Act. The first Lieutenant Governor of the territory was Girish Chandra Murmu, who had been the last Governor of the State, and he was succeeded in August 2020 by Manoj Sinha. Local self-government supplied the only elected layer: elections to the District Development Councils, a tier created by amendments to the territory’s panchayati raj law in 2020, were held in November and December 2020, the first elections of any kind in the territory after the reorganisation, and the panchayat and municipal bodies elected in the former State in 2018 served out or ran down their terms in the same period.

Three legal episodes of the interval belong to the Act’s own record. The first is the adaptation programme described above, whose orders of 2020 rewrote land and domicile law for both territories; petitions challenging aspects of that programme, including the domicile framework, were filed in the common High Court and in the Supreme Court, and the programme’s validity was debated as a question about the width of a transitional power rather than as a question about the reorganisation itself. The second is the challenge to the delimitation: a petition in the Supreme Court questioning the constitution of the Delimitation Commission and the basis of its exercise was dismissed in February 2023, the Court holding that the Commission’s constitution under the Act and its conduct of the exercise disclosed no ground for interference, while leaving the larger questions about the reorganisation to the Constitution Bench proceedings then pending. The third is the Jammu and Kashmir Reorganisation (Amendment) Act, 2023, by which Parliament enacted the Delimitation Commission’s nomination recommendations in the December session of that year, adding the Kashmiri migrant and displaced person nominations to the Assembly’s composition days after the Constitution Bench had delivered its judgment and directed elections.

The interval matters to the critique of the Act for a reason internal to the Act’s own design. A statute that creates an elected legislature but conditions its first constitution on a delimitation that the same statute schedules against a future census carries, on its face, the possibility of a long interregnum, and the interregnum that occurred ran to five years, during which the territory’s laws were made in New Delhi. The Union’s account of the interval is that the sequence was dictated by the statute and by the need to hold elections on a delimited map rather than on the map of a State that no longer existed; the critics’ account is that a conversion defended as transitional acquired, in the interval, the settled character of direct rule. Both accounts describe the same five years, and the Act’s text supports each side’s premise: the Assembly was always in the Act, and it was not in being.

Ladakh’s separate account

Ladakh’s position under the Act cannot be read off the Jammu and Kashmir provisions, because the Act treats the two territories by different logics. Jammu and Kashmir received the full apparatus of a legislature territory on the Puducherry pattern. Ladakh received a Lieutenant Governor, a single seat in the House of the People, the continued operation of the two autonomous hill development councils, and nothing else by way of representative institution at the territorial level. The councils, constituted under the Ladakh Autonomous Hill Development Council Act, 1997, a State law the Fifth Schedule continued, are elected bodies with executive authority over allotted development subjects in the Leh and Kargil districts, but their powers are statutory and delegated, their budgets come through the administration, and they have no legislative competence. When the former State existed, the councils operated beneath a State legislature in which Ladakh returned four members; after the appointed day, the councils were the only elected institutions in the territory, beneath an administrator answerable to the Union Home Ministry.

The separation of Ladakh from Jammu and Kashmir had been a stated demand in Leh for decades, advanced by the Ladakh Union Territory Front and by the region’s Buddhist associations on the ground that the territory’s distinct geography, culture and developmental needs were subordinated in a State whose politics was dominated by the Kashmir and Jammu divisions. Kargil’s predominantly Shia Muslim population and its leadership took, in the main, the opposite position, favouring continuance with Jammu and Kashmir or safeguards within a joint arrangement, and the Kargil Democratic Alliance became the vehicle of that position. The Act satisfied the Leh demand in form, by constituting Ladakh as a Union territory, and declined it in substance as Leh’s organisations had framed it, because the demand had been for a Union territory with a legislature, and Section 58 provides none.

What followed is recorded in the territory’s own institutional acts. In September 2019 the National Commission for Scheduled Tribes recommended that Ladakh be brought under the Sixth Schedule of the Constitution, the schedule that constitutes autonomous district councils with legislative and judicial powers in tribal areas of the north eastern States, on the ground that the territory’s population is predominantly tribal and that the Schedule would protect land and culture in the manner the permanent resident regime had. The recommendation was not enacted. The Leh Apex Body and the Kargil Democratic Alliance, the vehicles of the two districts’ opposed positions in 2019, combined on a common platform of demands: statehood for Ladakh with a legislature, or inclusion in the Sixth Schedule, together with protections for land and employment and a public service commission for the territory. The Union constituted a high powered committee to consider the demands, and the demands stand recorded as the territory’s outstanding account against the Act. In September 2025 the agitation in Leh turned violent and four persons were killed, after which the activist Sonam Wangchuk, who had fasted in support of the demands, was detained under the National Security Act. The organisations placed the events on the record of what they describe as the settlement’s failure to answer the territory’s case; the administration stated that the violence had been provoked and that the talks remained the route for the demands. The demands themselves were unchanged by the episode, and the territory’s constitutional position, a Union territory without a legislature administered under Section 58 of the Act, remained the ground on which both the agitation and the talks stood. In the Constitution Bench litigation, Ladakh figured in one precise holding: the carving out of Ladakh as a Union territory was upheld, and the Solicitor General’s assurance of restored statehood was recorded as extending to Jammu and Kashmir alone.

What changed on the appointed day

The table below states the position immediately before 31 October 2019 and the position the Act established on that day, subject by subject, without characterising either.

Subject	Before the appointed day	From the appointed day
Constitutional status of the territory	A State of the Union under a special provision, Article 370, with a Constitution of its own	Two Union territories under the ordinary provisions of the Constitution, which applies in full
The legislature and its competence	A bicameral State legislature competent across the State and Concurrent Lists, with residuary power in the State	For Jammu and Kashmir, a unicameral Assembly competent on the State List except public order and police, and on the Concurrent List; for Ladakh, no legislature
Public order and police	Subjects of the State government, under its Council of Ministers	Reserved to the Union, administered through the Lieutenant Governor of the Union territory of Jammu and Kashmir
The executive head	A Governor acting on the aid and advice of a Council of Ministers responsible to the State legislature	A Lieutenant Governor in each territory; in Jammu and Kashmir, a Council of Ministers aiding and advising within the Assembly’s field only
The High Court	The High Court of Jammu and Kashmir, the State’s constitutional court	The same court, continuing as the common High Court for both Union territories
Applicable central laws	Central law applied as extended by presidential orders under Article 370, with exceptions and modifications; the State had its own penal code	106 central enactments applied by the Fifth Schedule, including the Indian Penal Code and the central procedure codes
State laws repealed and retained	The whole of the former State’s statute book in force	153 State laws and associated Governor’s Acts repealed; 166 State laws continued, seven of them with amendments
Land and residency provisions	Permanent resident status, under Article 35A and State law, governing public employment and rights in immovable property	Article 35A extinguished with the Order of 1954; permanent resident conditions removed or replaced, and domicile rules substituted for employment eligibility
Representation in Parliament	Six members in the House of the People and four in the Council of States, returned for one State	Five members of the House of the People and four of the Council of States for Jammu and Kashmir; one member of the House of the People for Ladakh

How the reorganisation power had been used before 2019

The direction of the 2019 conversion is best measured against the seventy years of practice that preceded it, because both sides in the argument drew their strongest material from that practice. The power had been used to integrate the princely states and rationalise the provinces into the map of 1956. It had been used to divide Bombay in 1960, Punjab in 1966, Assam across the following decade, Madhya Pradesh, Uttar Pradesh and Bihar in 2000 and Andhra Pradesh in 2014, in each case to create States out of States. It had been used in the opposite vertical direction far more often: Himachal Pradesh passed from a Union territory to a State in 1971, Manipur and Tripura in 1972, Goa in 1987 and Arunachal Pradesh and Mizoram in the same decade, each an elevation of a territory into the federal tier. The standard biography of a unit under the reorganisation power was ascent.

One precedent stands closer to 2019 than the others, and the argument in the litigation circled around it. The Punjab Reorganisation Act, 1966 formed the Union territory of Chandigarh out of territory that had been part of the State of Punjab, and made it a shared capital of two States, while Punjab itself continued in being as a State, diminished in area but undiminished in status. Parliament had therefore formed a Union territory from the territory of a State before, and the Act of 2019 is not the first use of the power to create such a territory. What had never been done was the exhaustion of a State by the process: the conversion of the whole of a State, so that no State remained. The Union’s reading treats the difference as one of degree within a power that includes both operations. The petitioners’ reading treats it as a difference of kind, between using a State’s territory and abolishing a State, and the practice of seventy years was consistent with the second reading in the weak sense that nothing in it contradicted it, and consistent with the first reading in the equally weak sense that nothing in it foreclosed the step. Practice, in short, framed the question without answering it, which is why the litigation about the Act is best understood as an argument about text and structure conducted in the absence of precedent, and why the Court’s eventual refusal to decide the conversion question left the law exactly where the practice had left it.

The questions of construction the Act forced

Beneath the political argument sit four questions of pure construction, and they are worth stating separately because they will recur in any future use of the power and because the litigation answered only some of them. The first is the meaning of State in Article 3. The article’s clauses authorise Parliament to form a new State, to increase or diminish the area of any State and to alter a State’s boundaries or name, and its first Explanation provides that in clauses (a) to (e) the word State includes a Union territory, while in clause (f), the residuary reference clause, it does not. The Explanation’s evident purpose, in the drafting history, was to let the power be used on the Union territories of the original map, renaming and adjusting them, and to let new States be formed partly out of Union territory. Whether it also carries the converse operation, the making of a Union territory out of the whole of a State, is the unanswered question in its sharpest textual form: the word is included in the clauses that form new units, and the conversion reads the inclusion in the direction opposite to the one the drafting history contemplated.

The second question concerns Article 4. A law under Article 3 may contain supplemental, incidental and consequential provisions, including amendments of the First and Fourth Schedules, and Article 4(2) declares that such a law is not to be deemed an amendment of the Constitution for the purposes of Article 368. The Reorganisation Act used that facility to its full extent, amending the Fourth Schedule to reallocate the Council of States seats and the First Schedule to replace a State with two Union territories in the constitutional list of units. The question of construction is whether the facility for incidental amendment can carry a change of this magnitude without the special majority and, where the federal features are touched, the ratification that Article 368 prescribes. The answer the case law has always given is that Article 4 means what it says, and the Act’s changes to the Schedules were never the vulnerable part of the scheme; but the conjunction of the two articles is the mechanism by which the entire conversion was effected by ordinary law, and the critics’ structural argument is, at bottom, an argument that Article 4’s facility cannot have been intended to bear that weight.

The third question concerns Article 239A. That article empowers Parliament by law to create a legislature and a Council of Ministers for a Union territory, and it was inserted for Puducherry. Section 13 of the Act applies the article to Jammu and Kashmir rather than re-enacting its scheme, a drafting choice with a consequence: the institutions of the territory rest on a constitutional provision that speaks of territories Parliament selects, and the territory’s legislature exists because a constitutional provision, applied by statute, says it may. The contrast with Delhi’s Article 239AA, which constitutes the National Capital Territory’s legislature in the Constitution’s own text, is the contrast drawn in the final entry of the questions and answers below, and it determines the ease with which each arrangement can be remade: what Section 13 applies, a later statute can disapply, while Article 239AA can be altered only by the amending power.

The fourth question is the one the Proclamation posed. Article 356(1)(b) permits the President to declare that the powers of the legislature of the State shall be exercisable by or under the authority of Parliament, and the constitutional practice under such declarations is settled to the extent that Parliament, during the interval, legislates for the State with the State legislature’s full competence. The question the August measures posed was one of purpose rather than of competence: whether a mechanism designed to restore constitutional government in a State may be used, during the interval, to make permanent changes to the State’s status that the restored government would inherit as accomplished facts. The Constitution Bench declined to confine the Article 356 interval to reversible measures, and held the exercise within the powers the interval confers; the proposition that permanence is itself a vice in such measures remains an argument in search of a holding, and it too survives the litigation undecided in the precise form in which the petitioners put it.

A fifth matter belongs to the territories’ continuing position rather than to the litigation. As a Union territory, Jammu and Kashmir stands outside the scheme of tax devolution that the Finance Commission arranges among the States, and its expenditure is met through the Union budget, in grants and appropriations voted by Parliament, a fiscal dependence that is the ordinary condition of Union territories and that conditions the autonomy the Assembly can exercise in practice: a legislature that does not command the revenues of a State, and whose budget is framed within a grant, governs a narrower field than the State List minus two entries would by itself suggest. Ladakh’s position is the same in kind and greater in degree, its entire budget travelling through the Union’s books. The fiscal point is stated here without evaluation, because both sides claim it: the Union as the mechanism by which the territories’ development is underwritten, the critics as the standing evidence of the conversion’s centralising character.

The case for the reorganisation, stated in its proponents’ terms

The Union government’s case, as the Home Minister, Amit Shah, made it in the Council of States on 5 August 2019 when moving the resolution and the Bill, and as the Union later maintained it before the Supreme Court, rests on four propositions. The first is textual and concerns the reach of the reorganisation power. Article 3 empowers Parliament by law to form a new State by separation of territory from any State or by uniting States or parts of States, to increase or diminish the area of any State and to alter the boundaries or the name of any State, and the first Explanation to the article provides that in its operative clauses the word State includes a Union territory. Parliament’s power to legislate for Union territories under Article 246(4) extends to every subject, and the Government of India Act pattern from which the Union territory institution descends has always treated such territories as administered by the Centre. On this reading, forming Union territories out of a State’s territory is within the words of the power, and the absence of any earlier instance proves novelty rather than incompetence: the power had not been used in that direction because no occasion had arisen, not because the text forbade it.

The second proposition concerns Article 370 itself. The article stands in the Part of the Constitution headed temporary, transitional and special provisions, and its own marginal heading in the Constitution describes it as a temporary provision with respect to the State of Jammu and Kashmir. The Union’s case is that a provision the Constitution itself labels temporary cannot be converted into a permanent settlement by the accident that the body named in its third clause, the State’s Constituent Assembly, dispersed without acting; the clause (3) power survived, its recommendation requirement was capable of being read through the interpretation article once the Constituent Assembly had ceased to exist, and the President’s declaration of August 2019 did what the clause had always contemplated might be done.

The third proposition is about integration and uniformity. On the Union’s case, the special position had produced a legal asymmetry that operated to the territory’s disadvantage: central welfare and rights legislation, including statutes on education, information and protection of children, did not extend to the State or extended in attenuated form; the permanent resident rules excluded persons settled in the territory for generations, including refugees from the western districts who had arrived in 1947, from public employment and from the franchise in State elections; and the two-tier structure impeded investment and administration. Applying the Constitution in full and making the territory’s law the law of the Union removed the asymmetry at a stroke, and the Fifth Schedule’s tables are the mechanical proof: statutes that apply in every other part of India apply in both territories.

A fifth proposition, made by the Prime Minister in the House of the People and by the Home Minister in the Council of States, is developmental and administrative: that the territory’s progress had been held back by the special arrangements, that the extension of the Union’s rights and welfare legislation would benefit in particular the classes the State’s arrangements had excluded, including the Scheduled Castes and Scheduled Tribes in their reservation rights, women in the application of the central statutes protecting them, and the communities settled in the territory whom the permanent resident rules had excluded from its public life, and that direct administration would carry the Union’s investment and institutions to the territory without an intervening layer. The delimitation, on the Union’s account, is an application of the ordinary population principle by an independent commission, and the increase in the Jammu division’s seats follows from the territory being delimited as one unit on the census the Act specified.

The fourth proposition addresses the timing and the consultation objection. The Union’s answer is that the Constitution itself supplies the machinery for a State under a Proclamation under Article 356: while such a Proclamation operates, the powers of the State legislature are exercisable by Parliament, and the Governor acts as the President’s agent, so the concurrence and the recommendation that the August instruments required were given by the offices the Constitution designates for such an interval, and there is no rule that grave or irreversible measures are beyond the competence of that machinery. To this the Union adds a commitment rather than an argument: the Solicitor General, Tushar Mehta, stated to the Supreme Court during the hearing of the challenges that the Union territory status of Jammu and Kashmir was not a permanence, that statehood would be restored, and that Ladakh alone would continue as a Union territory, and the Home Minister repeated in Parliament the position that statehood would be restored at an appropriate time. On the Union’s account the conversion is therefore a transitional constitutional arrangement with a stated destination, and it is to be judged as such.

The case against, stated in its proponents’ terms

The petitioners’ case, advanced before the Constitution Bench by counsel including Kapil Sibal and Gopal Sankaranarayanan and supported in substance by the region’s principal parties, the Jammu and Kashmir National Conference and the Jammu and Kashmir Peoples Democratic Party, which had also opposed the measures in Parliament, rests on propositions that mirror the Union’s and contradict them at each point. The first is structural. Federalism, the petitioners argued, is part of the basic structure of the Constitution, and a State is not a municipal body or a creature of statute: it is a constituent unit whose legislature holds its subjects from the Constitution itself. The doctrine of the basic structure, and the limits it places on the power to amend the Constitution, let alone to legislate, are treated in the series article on the basic structure doctrine, and the petitioners’ use of it here was specific: a power to form new States and alter boundaries, exercised so as to extinguish a State and govern its territory from the Centre, converts the federation into a unitary state at Parliament’s option and cannot have been within the contemplation of a provision whose clauses speak of forming, diminishing and renaming States. The first Explanation, on this reading, extends the power to territories that are already Union territories; it does not authorise the demotion of a State, and a power to diminish the area of a State, pressed to its limit, would authorise the abolition of every State in turn, which is a reductio the text cannot bear.

The second proposition concerns the route taken under Article 370. The petitioners argued that the interpretation article cannot be used to amend a substantive provision: Article 367 exists to resolve ambiguities of construction, and Constitution Order 272 used it to rewrite the proviso to Article 370(3), substituting the Legislative Assembly for the Constituent Assembly whose recommendation the clause required, and thereby changing the content of the power being exercised. A power to interpret is not a power to amend, and if the Constituent Assembly’s disappearance made the clause (3) route unavailable, the consequence in law was that the route was unavailable, not that a different body could be read into it. The Supreme Court accepted the premise of this argument in part: the use of clause (1) of Article 370 to amend Article 370 itself was held impermissible, although the Court sustained the August outcome on the clause (3) power and on its reading of the recommendation requirement, and the detail of that reasoning belongs to the judgment’s own article.

The third proposition is the consultation objection, and it is the one the petitioners pressed as the most concrete. The proviso to Article 3 requires that a Bill affecting the area, boundaries or name of a State be referred by the President to the legislature of that State for its views. In August 2019 the views expressed on the reference were the views of Parliament itself, exercising the dissolved Assembly’s powers under the Proclamation, and the concurrence for Constitution Order 272 was the concurrence of a Governor who held office under the same dispensation. The consultation the Constitution prescribes is, on this argument, a consultation of the Union with itself, and a federal safeguard that can be satisfied by the party it exists to restrain is no safeguard at all. The petitioners connected the point to the Proclamation itself: President’s rule is by design a temporary and restorative mechanism, and a construction that permits the interval of central rule to be used for a permanent reorganisation of the unit under rule inverts its purpose.

A further proposition concerns the character of the legislature the Act substituted. The petitioners and the regional parties argued that the conversion’s substance lies in the accumulation of its parts rather than in any one of them: a legislature short of the two subjects that touch the citizen daily, an executive head who is the Union’s administrator rather than a constitutional governor bound by ministerial advice across the field, a nominated element in the Assembly’s composition enlarged by the amendment of 2023, a fisc that runs through the Union budget, and a failure of machinery clause in the Act itself under which the experiment can be suspended by Proclamation. A State’s government, on this argument, is not a list of competences but a constitutional position, and the position the Act created is that of a department of the Union with an elected council attached, a characterisation the Union rejects as a description of an arrangement it regards as a legislature with a defined field on the Puducherry pattern, differing from Puducherry chiefly in that the territory in question was once a State. The delimitation was folded into the same argument: the regional parties of the Kashmir division contested the allocation of the additional seats between the divisions and the joining of Anantnag with Rajouri and Poonch in one parliamentary constituency, while parties and organisations in the Jammu division defended the allocation as the correction of an old imbalance, the Commission itself resting its order on the criteria the Act and the delimitation law supplied, including population, geography and administrative convenience.

The fourth proposition is regional, and it was made in different forms in the territory’s different parts. In the Kashmir division, the National Conference and the Peoples Democratic Party stated the position that the measures were taken over the opposition of the territory’s elected representatives and its mainstream parties, that the assurance of restoration leaves the territory’s status dependent on the Union’s timing, and that the delimitation that followed redistributed seats between the divisions in a manner they contested. In Ladakh, the initial welcome in Leh for separation from Kashmir and for Union territory status was followed by a joint position of the Leh Apex Body and the Kargil Democratic Alliance demanding statehood with a legislature for Ladakh, or in the alternative inclusion in the Sixth Schedule, together with protections for land and employment of the kind the extinguished permanent resident regime had supplied; Kargil’s representatives had opposed the separation itself. In the Jammu division, organisations have at intervals demanded a separate State of Jammu, a demand the Act did not entertain. These positions disagree with one another about almost everything except the proposition that the settlement of 2019 was made in New Delhi rather than in the territory.

What the record supports, and what remains a dispute of value

Some of the disputes between these cases are disputes of fact on which the record is complete. It is a matter of record that the instruments were issued in the sequence described, that the State was under a Proclamation under Article 356 when they issued, that its Assembly had been dissolved the previous November, that the votes in the two Houses were as stated, and that the Solicitor General gave the assurance on statehood recorded above, on the strength of which the Supreme Court expressly declined to decide the conversion question. It is a matter of record that the Fifth Schedule’s tables contain the numbers of laws stated, that the Delimitation Commission’s order of 5 May 2022 fixed ninety seats in the proportions stated, and that elections on that map were held in the autumn of 2024 and produced a government led by the party that had opposed the reorganisation. No party to the argument disputes these facts, and accounts that garble them, by attributing the Orders’ work to the Act or by describing Ladakh as having a legislature, fail at the level of the record rather than the level of opinion.

Other disputes are not resolvable by the record, because they turn on what federalism is for. Whether the uniformity the Union describes as integration is a constitutional good in itself, or whether the asymmetry the petitioners describe as a settlement was the price of the State’s accession and a legitimate permanent feature of a plural federation, is a question about the character of the Indian Union on which the text of the Constitution supplies materials to both sides and a conclusion to neither. Whether the restoration of statehood at the Union’s chosen time satisfies the federal objection depends on whether the objection is to the fact of conversion or to its indefinite duration, and the petitioners’ own pleadings contained both versions. An honest account marks these as value disputes and does not pretend that a further inspection of the Gazette would settle them.

The conflations this Act attracts, and why each is wrong

Public writing about the reorganisation repeats a small set of errors so regularly that correcting them is part of describing the Act. The first is the attribution of the whole settlement to the Act itself: the Act did not end the special position, did not extinguish Article 35A and did not apply the Constitution in full, because those were the works of Constitution Orders 272 and 273, made under Article 370 in the exercise of the President’s power, and the distinction matters legally, since the two sets of instruments rest on different powers, were challenged on different grounds and could, in principle, have had different fates. An account that says the Reorganisation Act abrogated Article 370 misdescribes both instruments and cannot explain why the petitions attacked the Orders under Article 370 doctrine and the Act under Article 3 doctrine.

The second error is to say that Article 370 was repealed or deleted from the Constitution. It was not. The declaration under its third clause caused its operative clauses to cease and left the article standing in the text in the reduced form Constitution Order 273 prescribed, a single clause recording that all provisions of the Constitution apply to the State, a position the Supreme Court’s judgment proceeded on. The difference is not pedantry: a repealed article could not have been the vehicle of its own termination, and the form the article takes is the record of the route by which the settlement was reached.

The third error is to say that the Supreme Court upheld the conversion of a State into Union territories. The Court upheld the carving out of Ladakh, upheld the constitutional steps under Article 370, and expressly declined to decide the conversion of Jammu and Kashmir, for the reason that the Union’s assurance on statehood made a decision unnecessary. Accounts that report the conversion as judicially approved misstate the one holding that will matter to the next reorganisation. The fourth error is the mirror image: to say that statehood was promised by the Act, or that the Act contains a sunset on Union territory status. It contains neither. The Act’s text contemplates the territories as constituted without a term, and the statehood commitment exists outside the statute, in a statement made to a court and repeated in Parliament, which is why its enforcement is political and why the judgment’s reliance on it was itself a point of argument. The fifth error is smaller and constant: describing Ladakh as having a legislature, or Jammu and Kashmir as having a Legislative Council, or the territory’s government as a State government. Each error dissolves a distinction the Act was drafted to create, and each is avoidable by the discipline this article has followed: name the instrument, state what it did, and attribute everything else.

The judicial position, in outline

The challenges to the August 2019 instruments and to the Act were filed from the month of the measures themselves, the lead petitions including those of Mohammad Akbar Lone and Hasnain Masoodi, members of Parliament of the National Conference, alongside petitions by other political figures, lawyers and civil society applicants, and were heard together by a Constitution Bench of five judges, Chief Justice D. Y. Chandrachud presiding, with Justices S. K. Kaul, Sanjiv Khanna, B. R. Gavai and Surya Kant, across August and September 2023. Judgment was delivered on 11 December 2023. The Court upheld the Constitution Orders: it held that the President’s power under clause (3) of Article 370 had been validly exercised and that Article 370 was a temporary provision; it held that the State retained no element of sovereignty after accession; it upheld the carving out of Ladakh as a Union territory; and it did not decide whether the conversion of the State of Jammu and Kashmir into a Union territory was within the reorganisation power, recording the Union’s assurance that statehood would be restored and directing that the restoration take place as soon as possible and that elections to the Legislative Assembly be held by 30 September 2024. The reasoning, the separate concurring opinions and the points the Court resolved about the interpretation article are the subject of the companion article on the Supreme Court’s Article 370 judgment, which owns them for this series; the outline given here is the minimum a reader of the Act needs, because it fixes which of the Act’s foundations have been judicially confirmed and which one has not.

One further instrument of the interval belongs to the record, because it distributes power under the Act without amending it. The Government of Union Territory of Jammu and Kashmir (Transaction of Business) Rules, framed under the Act and notified in 2020, allocate the business of the territory’s government between the Lieutenant Governor and the Council of Ministers and specify the matters on which the Lieutenant Governor acts in his discretion. In July 2024, weeks before the Assembly elections were announced, the Union Home Ministry amended those Rules to widen the matters reserved to the Lieutenant Governor, bringing within the reserved field the appointment of the Advocate General and law officers, sanctions for prosecution, and matters connected with police and public order and with the services that administer them. The amendment was made under the Act’s own rule-making arrangements and without reference to any elected government of the territory, none then existing; the government elected later in 2024 stated its objection that the amendment contracted the field the election had been held to fill. The episode is recorded here for what it shows about the Act’s design: the operative distribution of power in the territory is set at three levels, the Act, the rules under it, and the Lieutenant Governor’s practice, and only the first of the three is the work of the Assembly’s creators in any strong sense.

Statehood: the position on the record

The position on restoration of statehood is capable of exact statement, and it is this. The Union stated to the Supreme Court, through the Solicitor General, that statehood would be restored to Jammu and Kashmir, and the Court, acting on that statement, directed restoration as soon as possible without fixing a date for it, while fixing 30 September 2024 as the date by which Assembly elections were to be held. The elections were held within that direction. In Parliament, the Home Minister has stated the Union’s position as being that statehood will be restored at an appropriate time, and no instrument restoring statehood has been enacted. The Legislative Assembly elected in 2024 placed its contrary view on record by resolution in November 2024. Statehood, unlike the Assembly, cannot be restored by any authority below Parliament: it would require a law under the same reorganisation power that effected the conversion, and the question whether that power compels restoration, as distinct from permitting it, is among the questions the litigation did not decide. The position is therefore accurately described as a commitment recorded by a court and repeated in Parliament, awaiting an instrument, and any description of the question as settled, in either direction, goes beyond the record. Applications were later filed in the Supreme Court seeking a direction that the commitment be implemented, and those proceedings stand as continuing matters; the elected government of the territory and the Union have stated their respective positions in them as they have in Parliament, the one pressing for a date and the other maintaining that the restoration will be effected at the appropriate time.

What the Act did not do

A statute is defined by its silences as well as by its sections, and this Act’s silences are load-bearing. The Act did not restore statehood, promise it or place a term on the territories it created: its text constitutes the two Union territories without a sunset, and every statement about restoration stands outside it. The Act did not give Ladakh a legislature, a council of ministers or a public service commission, and it did not bring Ladakh within the Fifth or Sixth Schedule of the Constitution, the two schedules through which the Constitution protects tribal land and self government elsewhere; the hill councils it left in place are statutory bodies, and the protections the territory’s organisations sought after 2019 required instruments the Act did not contain. The Act did not itself amend Article 370 or extinguish Article 35A; those operations belonged to the Constitutional Orders, and a reader who searches the Act’s 103 sections for the special position will find it presupposed as already ended rather than enacted as ending. The Act did not fix the date of the first elections to the Assembly it created, nor the date by which delimitation was to be completed, nor the date by which its own Section 60 increase of seats was to operate; each of those dates was supplied later, by the Delimitation Commission’s timetable, by the Election Commission and, in the event, by the Supreme Court’s direction. The Act did not determine the future of the State’s separate cadre of the All India Services, which was merged into the joint cadre by executive decision in 2021, nor the future of the State’s symbols, the flag and emblem that the State’s Constitution had authorised and that fell with it. And the Act did not address the external dimension of the territory it divided: the areas of the former State under the occupation of Pakistan and China appear in it only through the twenty-four vacant seats and the district lists, the standing legislative form of a claim the Act records and does not argue.

The silences matter because each became a site of subsequent contention conducted in the Act’s name. The statehood debate is a debate about a commitment the Act does not contain. The Ladakh debate is a debate about institutions the Act did not create. The elections debate was a debate about dates the Act did not fix. An assessment of the reorganisation that confines itself to the Act’s text will therefore miss most of what the reorganisation has meant in practice, and an assessment that ignores the text will mistake political commitments for legal ones. The discipline the series applies to every statute in this cluster, to separate what was enacted from what was said about it, has no harder application than this Act, and no more necessary one.

What is settled and what is not

The Act’s own content is settled, in the sense that it is enacted, operative and largely executed: the two territories exist, the Assembly sits and has completed an election cycle’s opening, the laws have been extended, repealed, continued and adapted, and the delimitation has taken effect. The validity of the constitutional steps that preceded the Act has been upheld. The carving out of Ladakh has been upheld. What is not settled is the question with which this article opened: whether the reorganisation power extends to converting a State into Union territories at all. That question was argued, was recognised by the Court as the structural question in the case, and was left undecided because an assurance made it unnecessary to answer in that litigation. It remains open for any future reorganisation, and it will be answered, if it is answered, on facts that may be less accommodating than an accompanying promise of restoration. The series has found repeatedly that the most consequential question in a dispute is the one left undecided. In the law of reorganisation, that question is this one, and the Act of 2019 is the reason it can no longer be treated as theoretical.

For the reader who uses this article as a map, the order of inquiry the Act rewards is the order the article has followed. Begin with the instruments, and keep the Orders and the Act apart, because they rest on different powers and were judged by different tests. Read the Act’s operative parts next, the formation sections, the Assembly’s truncated competence and the Fifth Schedule’s tables, because those are the provisions that govern the territories on any given day. Place the arguments after the text, since each side’s case is an argument about what the text permits and neither is a substitute for it. And end with the inventory of the undecided, the conversion question, the permanence question under the Proclamation and the statehood commitment awaiting its instrument, because on this subject the honest account is the one that states, alongside everything that has been settled, the short list of things that have not.

Frequently Asked Questions

Q: What did the Jammu and Kashmir Reorganisation Act create?

The Act created two Union territories out of the existing State of Jammu and Kashmir. Section 3 formed the Union territory of Ladakh out of the districts of Leh and Kargil, without a legislature. Section 4 formed the Union territory of Jammu and Kashmir out of all the remaining districts of the former State, with a Legislative Assembly, a Council of Ministers and a Lieutenant Governor, on the pattern the Constitution provides for the Union territory of Puducherry. The Act also constituted the machinery the two territories needed: their representation in Parliament, a common High Court, the apportionment of assets, liabilities and services, and the tables that extended central law, repealed State law and continued State law. On the appointed day, 31 October 2019, the former State ceased to exist and the two territories came into being.

Q: Why was this reorganisation unprecedented?

Every earlier exercise of the reorganisation power had moved a unit of the Union upward in status or rearranged units of equivalent standing. States had been divided to create States, territories had been raised to statehood, and boundaries had been redrawn, but no State had ever been converted into a Union territory. The Act of 2019 reduced the number of States from twenty-nine to twenty-eight and placed the extinguished State’s territory under the constitutional arrangements for Union territories, administered through Lieutenant Governors appointed by the President. That direction of travel is what made the measure without precedent, and it is what raised the structural question at the centre of the litigation: not whether the map may be redrawn, which was settled law, but whether a unit of the federation may be removed from the federal tier altogether, which was not.

Q: What was the constitutional position in Jammu and Kashmir when the Act was passed?

The State was under President’s rule. Its coalition government had fallen in June 2018, the Governor had dissolved the Legislative Assembly on 21 November 2018, and on 19 December 2018 the President issued a Proclamation under Article 356 assuming the functions of the State government and declaring that the powers of the State legislature would be exercisable by or under the authority of Parliament. That Proclamation was in force, and had been extended, when the August 2019 instruments were made. The consequences were concrete: the concurrence required for the first Constitutional Order was the concurrence of the Governor administering the State under the Proclamation, the views of the State legislature on the Reorganisation Bill were expressed by Parliament exercising that legislature’s powers, and the recommendation behind the second Constitutional Order travelled the same route. The special provision, Article 370, still governed the State’s constitutional position at the moment the sequence began.

Q: How were central and state laws dealt with in Jammu and Kashmir?

The Act dealt with them by schedule, in the Fifth Schedule, which carries three tables. The first table applied 106 central enactments to both Union territories, including the Indian Penal Code, the central codes of civil and criminal procedure, and the central statutes on information, education, Aadhaar and wildlife protection. The second table repealed 153 State laws and the associated Governor’s Acts, among them the State’s own penal code and its right to information statute, whose central counterparts had just been extended. The third table continued 166 State laws in force in both territories, seven of them with specified amendments, including the removal of prohibitions on leasing land to persons who were not permanent residents. A power to adapt and modify laws by order within one year of the appointed day then allowed the Central Government to adjust the continued laws to the new dispensation, and that power was used extensively in 2020.

Q: What happened to the assembly seats and delimitation?

The Act as passed gave the new Assembly 107 seats to be filled by direct election, of which twenty-four, corresponding to the area of the former State under the occupation of Pakistan, were to remain vacant and be excluded from delimitation, leaving 83 elected members. A Delimitation Commission constituted in March 2020 under the Act, chaired by Justice Ranjana Prakash Desai, made its final order on 5 May 2022, effective from 20 May 2022. It delimited ninety constituencies, forty-three in the Jammu division and forty-seven in the Kashmir division, reserved nine seats for the Scheduled Tribes for the first time in the territory’s history and seven for the Scheduled Castes, and redrew the five parliamentary constituencies so that each contains eighteen Assembly constituencies. An amendment of 2023 added nominated members for the Kashmiri migrant community and for displaced persons from the occupied area. Elections on the new map were held in the autumn of 2024.

Q: Does the Union territory of Jammu and Kashmir have a legislature?

Yes. Part III of the Act constitutes a Legislative Assembly for the Union territory of Jammu and Kashmir, and Section 13 applies Article 239A of the Constitution, the provision under which Puducherry has a legislature, to the territory. The Assembly is unicameral, the former State’s Legislative Council having been abolished by the same Act, and it sits with a Council of Ministers headed by a Chief Minister, capped at ten per cent of the Assembly’s membership, aiding and advising the Lieutenant Governor within the Assembly’s legislative field. Its competence is narrower than a State legislature’s: Section 32 gives it the State List except public order and police, together with the Concurrent List, and reserves Parliament’s power to legislate for the territory on any subject. The territory’s first Assembly under the Act was elected in September and October 2024, and its first Chief Minister, Omar Abdullah, took office on 16 October 2024.

Q: What is the position on restoration of statehood?

The position rests on a statement, a direction and an absence. During the hearing of the challenges to the 2019 measures, the Solicitor General stated to the Supreme Court on the Union’s behalf that statehood would be restored to Jammu and Kashmir and that only Ladakh would continue as a Union territory. The Court, recording that statement, directed that statehood be restored as soon as possible and that elections to the Legislative Assembly be held by 30 September 2024; the elections were held within the direction. In Parliament the Home Minister has stated the Union’s position as being that statehood will be restored at an appropriate time. No law restoring statehood has been enacted, and the Legislative Assembly elected in 2024 adopted a resolution in November of that year calling for restoration. Statehood can be restored only by Parliament under the reorganisation power, and the question whether anything in law compels restoration, as distinct from the recorded commitment, was not decided in the litigation.

Q: What is the constitutional status of Ladakh?

Ladakh is a Union territory without a legislature. Section 3 of the Act formed it out of the Leh and Kargil districts of the former State, and Section 58 provides that it shall be administered by the President acting through an Administrator appointed under Article 239, designated the Lieutenant Governor. It returns one member to the House of the People and none to the Council of States. It shares the High Court of Jammu and Kashmir and Ladakh as its constitutional court, and the central and continued State laws applied by the Fifth Schedule govern it as they govern the other territory. Its elected institutions are the two autonomous hill development councils for Leh and Kargil, which are statutory bodies under a continued State law rather than legislatures under the Constitution. The Leh Apex Body and the Kargil Democratic Alliance have jointly demanded statehood with a legislature, or inclusion in the Sixth Schedule, with protections for land and employment; those demands stand recorded, and the Supreme Court upheld the carving out of Ladakh in its judgment of December 2023.

Q: When did the Jammu and Kashmir Reorganisation Act, 2019 come into force?

The Act received the President’s assent on 9 August 2019, four days after its introduction in the Council of States, but it did not operate from the date of assent. Section 2 defined the appointed day as the day the Central Government would notify in the Official Gazette, and the notification fixed 31 October 2019. Until that day the State of Jammu and Kashmir continued to exist under the constitutional position created by the two Constitutional Orders of August 2019, administered under the Proclamation of President’s rule. On the appointed day the State ceased to exist, the two Union territories were formed, the High Court continued as a common court, and the laws listed in the Fifth Schedule changed as the tables directed. The gap between assent and commencement is a deliberate feature of reorganisation Acts, which need an interval in which cadres, records, treasuries and court registries can be rearranged before the legal change takes effect.

Q: What happened to the Constitution of Jammu and Kashmir?

It ceased to operate. The State’s Constitution, in force from 26 January 1957, had governed the State’s internal arrangements within the framework of Article 370 and the Constitution (Application to Jammu and Kashmir) Order, 1954, which applied the Constitution of India to the State with exceptions and modifications. Constitution Order 272 of 5 August 2019 superseded the Order of 1954 entirely and applied all the provisions of the Constitution of India to the State, and Constitution Order 273 of the following day reduced Article 370 to a single clause recording that application. A constitution whose field was defined by an instrument that no longer existed, and whose provisions on the State’s legislature, executive and judiciary were inconsistent with the Constitution of India applied in full, had nothing left to govern. The Reorganisation Act then completed the position institutionally, replacing the State’s organs with those of the two Union territories from the appointed day.

Q: What happened to Article 35A?

Article 35A fell with the instrument that had created it. It was not part of the Constitution as adopted; it had been inserted by the Constitution (Application to Jammu and Kashmir) Order, 1954, issued under Article 370, and it empowered the State legislature to define permanent residents and to reserve to them rights in public employment, in acquiring immovable property, in settlement and in state aid. When Constitution Order 272 superseded the Order of 1954 on 5 August 2019 and applied the Constitution of India to the State without the 1954 modifications, Article 35A ceased to exist, and the permanent resident definition lost the constitutional protection the article had given it. The statutory consequences followed through the Reorganisation Act and the adaptation orders made under it: State laws built on the permanent resident category were repealed, amended or displaced, and a domicile framework was substituted for the purposes of public employment in the two territories in 2020.

Q: What happened to the Legislative Council of the former State?

The Act abolished it. The former State had a bicameral legislature, with a Legislative Assembly and a Legislative Council of thirty-six members. Section 57 of the Reorganisation Act abolished the Council with effect from the appointed day and provided for the consequences, including the lapse of Bills pending before the Council and the position of its members and staff. The Union territory of Jammu and Kashmir was given a unicameral legislature, following the pattern of the other legislatures Parliament has constituted for Union territories, none of which has an upper house. The abolition is one of the points on which the Act’s structure differs from the constitutional position of the States that retain Legislative Councils under Article 169, a provision that applies to States and had no application to the new territory. The Council’s chamber, its secretariat functions and its pending business were wound up under the abolition provision and the orders made to give it effect.

Q: How are the two Union territories represented in Parliament?

The Act allotted the Union territory of Jammu and Kashmir four seats in the Council of States and five seats in the House of the People, and the Union territory of Ladakh one seat in the House of the People and none in the Council of States. Between them the territories therefore return ten members of Parliament, against the ten the former State returned, but differently distributed: the State’s six members of the House of the People became five for Jammu and Kashmir and one for Ladakh, and its four members of the Council of States all sit for the Union territory of Jammu and Kashmir. The five parliamentary constituencies of Jammu and Kashmir are named in the Act’s Second Schedule as Baramulla, Srinagar, Anantnag, Udhampur and Jammu, and the Delimitation Commission’s order of 2022 redrew them so that each contains eighteen Assembly constituencies. Sitting members at the appointed day were deemed elected for the constituency or territory to which their seat was allotted, and their terms were left unaltered.

Q: What happened to the employees and services of the former State?

The Act provided for continuity first and allocation afterwards. Members of the All India Services borne on the former State’s cadre continued to serve in connection with the affairs of the two territories from the appointed day, and officers appointed later to serve in either territory are borne on the joint cadre that serves Arunachal Pradesh, Goa, Mizoram and the Union territories. The former State’s own services, its administrative, police, judicial and subordinate services, continued on their existing terms, and the Act provided for the employees to be allocated between the two territories through the advisory committee machinery it contemplated, with the Central Government taking the decisions. The functions of the State’s public service commission passed to the Union Public Service Commission, which serves the territories as it serves other Union territories. Allocation disputes, over individual officers, seniority and the division of particular departments, followed the pattern of earlier reorganisations and were worked out through orders and, in some instances, litigation in the common High Court.

Q: How were the assets and liabilities of the former State divided between the two territories?

Part XI of the Act supplied the machinery rather than the answers. It directed that the assets and liabilities of the former State be apportioned between the successor territories on the recommendations of a committee constituted by the Central Government, which was to report within twelve months, and it stated the principles the apportionment was to follow: property situated in a territory passes to that territory, property and liabilities that served both are divided between them, and the public debt of the former State is shared, with the Union territory of Jammu and Kashmir, as the much larger successor, carrying the predominant share of obligations that could not be localised, including pension liabilities, for which the Act made specific provision. The following Part dealt with the former State’s corporations and boards, several of which had to be bifurcated or reconstituted by scheme, a process that continued by orders after the appointed day. Where the committee’s recommendations or the schemes were contested, the Act’s framework left the Central Government’s decision as the operative one, subject to the courts.

Q: What replaced the permanent resident rules for public employment and land?

For public employment, a domicile framework replaced the permanent resident certificate. Orders made under the Act’s adaptation power in 2020 rewrote the eligibility rules for appointment to posts in the two territories in terms of domicile, defined by residence in the territory for fifteen years, or by seven years of study there culminating in appearance in the secondary and higher secondary examinations conducted in the territory, with further categories for persons registered as migrants and for the children of specified classes of officials and of residents serving outside the territory. For land, the change was made partly by the Act itself and partly by the same adaptation route: the seven State laws continued with amendments in the Fifth Schedule included the removal of prohibitions on leasing land to persons who were not permanent residents, and amendments to continued land laws removed the permanent resident condition from transactions to which it had attached. The two territories’ land and employment rules therefore came to rest on residence-based tests of the kind other parts of the Union use, rather than on the hereditary permanent resident status the former State’s law had maintained.

Q: When were the first elections held to the Assembly created by the Act, and what government did they produce?

Elections to the Legislative Assembly of the Union territory of Jammu and Kashmir were held in three phases on 18 and 25 September and 1 October 2024, within the date the Supreme Court had directed, and the results were declared on 8 October 2024. They were the first elections to a legislature for the territory since the former State’s Assembly elections of 2014, and the first held on the constituencies delimited in 2022. The Jammu and Kashmir National Conference won forty-two of the ninety elected seats, the Bharatiya Janata Party twenty-nine, the Indian National Congress six and the Jammu and Kashmir Peoples Democratic Party three, with the remaining seats going to smaller parties and independents. Omar Abdullah, leading the National Conference, was sworn in as the territory’s first Chief Minister on 16 October 2024, at the head of a Council of Ministers advising the Lieutenant Governor within the limits the Act prescribes, and the Assembly in its first session adopted a resolution seeking the restoration of statehood.

Q: Can Parliament make laws for the Union territory of Jammu and Kashmir on State List subjects?

Yes, without exception. Section 32 of the Act, which confers the Assembly’s legislative power, closes by providing that nothing in it derogates from the power Parliament holds under the Constitution to make laws on any matter for the territory. That saving reflects the constitutional position of Union territories under Article 246(4), which empowers Parliament to legislate for a Union territory on any matter, including matters in the State List. The Assembly’s competence therefore runs in parallel with Parliament’s rather than exclusively, and where a law of the Assembly and a law of Parliament occupy the same ground, the constitutional rules for Union territories resolve the conflict in Parliament’s favour. The position differs from that of a State, where Parliament’s power over State List subjects is exceptional and enumerated, and it is one of the structural features that distinguish the territory’s legislature from a State legislature even on subjects the Assembly can reach.

Q: For how long does the Legislative Assembly of Jammu and Kashmir hold office?

The Act gives the Assembly a term of five years from the date appointed for its first meeting, unless it is dissolved sooner, following the duration pattern the Constitution lays down for the legislatures it constitutes directly. The Lieutenant Governor may dissolve the Assembly, and the Act’s failure-of-machinery provision empowers the President, if satisfied that the administration of the territory cannot be carried on in accordance with the Act, to suspend the operation of its governmental provisions and assume the territory’s administration, the analogue within this statute of the Article 356 mechanism for States. During any such interval the Assembly may be kept under suspension or dissolved and its powers exercised by Parliament. The first Assembly under the Act was elected in the autumn of 2024, so its five-year term runs from its first meeting in that year; the elections that produced it were themselves held under the Supreme Court’s direction that they take place by 30 September 2024, following a period of more than five years in which the territory had no elected legislature at all.

Q: How does the Union territory of Jammu and Kashmir differ from the Union territory of Delhi in its legislative arrangements?

The two rest on different constitutional foundations. Delhi’s legislature is constituted by Article 239AA, a provision written into the Constitution for the National Capital Territory alone, which creates the Legislative Assembly and the Council of Ministers as constitutional institutions and reserves public order, police and land to the Union by the terms of the article itself. The Jammu and Kashmir Assembly is constituted by an Act of Parliament, the Reorganisation Act of 2019, which applies Article 239A, the general provision for Union territory legislatures under which Puducherry’s Assembly also sits, and reserves public order and police by the terms of Section 32 of the Act rather than by the Constitution. The practical reach of the two assemblies is similar, and each works alongside a Lieutenant Governor with a defined discretionary sphere, but the source of the institution differs, and with it the route of change: Delhi’s arrangement can be altered in its essentials only by constitutional amendment, while the Jammu and Kashmir arrangement, being statutory, can be altered by Parliament by law, as it was by the amendment of 2023 on nominated members.