Union Territory Status: Implications, ramifications and imperatives in Ladakh

By Tsering Samphel Leh, Jun 23, 2021
Leh :

Shri Amit Shah, the Hon'ble Union Home Minister, moved an unexpected, bold and historical constitution amendment in the Parliament of India on the 5th of August, 2019, scrapping the special status of Jammu and Kashmir State available under Article 370 and 35A of the Constitution of India. Another Act followed it that reorganised the State into the union territories of Jammu & Kashmir and Ladakh. The extraordinary move of the Hon'ble Minister fulfilled a very long-cherished dream of the people of Ladakh, particularly of Leh district. The abrupt news led its people into jubilation for days together. The separation of Ladakh from the erstwhile State of Jammu and Kashmir was a breakthrough of new vistas for Ladakh, taking it to the doorsteps of New Delhi for a swifter economic upliftment and overall prosperity. It infused a calming psychological mindset promoting a stronger sense of belonging as a citizen of India. The making of Ladakh as a Union Territory not only fulfilled the long-cherished demand of the people of Ladakh but has further cemented the security of the country as Ladakh hold great geostrategic importance down the history due to its proximity with Pakistan and China in the northernmost frontiers. Even amid the euphoria, an undercurrent mix of emotions of collective anxiety started to bubble to the surface and murmurs of discontent about the lack of legislature, particularly regarding the protection of the unique identity of Ladakhis ethnicity, their valued rich cultural heritage and the fragile ecology in the new reality rant very high. Conferences, seminars, interactions and discussions about the implications, ramifications and imperatives followed with various perspectives. 

The Implications
•    Indigenous people in Ladakh will be overwhelmed demographically with the sure influx of outsiders from across the country in a few years, putting the locals at risk on all fronts.
•    Once the demography of the indigenous people reduced to insignificance, it will jeopardise its culture, social systems, traditions, ethnic identity and fragile ecology.
•    The economy of Ladakh is agriculture-based, and the arable land holdings of the farmers are very limited, which will fall prey to indiscriminate and distress sales and transfers, rendering these indigenous people into abject poverty and stranger in their birthplace.
•    Barren lands in Ladakh, accounting for 99% of the whole area, has exposed exploitations in multifarious ways and means.
•    Once Ladakh was opened for tourism in 1974, its floodgates of economic benefits have remained confined to the indigenous tribal people. Now, the apprehension of hutching up the business by the corporate chains, big transporters and international agents are very high and locals will be rendered high and dry in a few years.
•    All the Scheduled Tribes, Scheduled Castes and OBCs, irrespective of their states, are now eligible to become government employees in all union territories on the lines of job reservation by the Central Government. Under such circumstances, all reservations will be open to the whole nation in the Union Territory of Ladakh. (Chandigarh Administration v/s Surendra Kumar & Ors and S. Pushpa & Ors v/s Sivachanmugavenu ors9 (2005 INSC 92 (11.2.2005) giving reservation in Dhaman. Hence, the local population of 98 % Scheduled Tribes of Ladakh would be denied their rights being STs in its own Union Territory.
•    Job opportunities in the new UT set-up would be a phenomenon. However, it will be opened for all, pushing the local tribal indigenous youth to the walls due to the lack of provision reservation of jobs only to the District and Division or State to which they belong and in Government Corporations in the same way. 
•    PSC recruitments were held very often in the erstwhile J&K State, wherein at least half a dozen candidates from the Ladakh region used to get through into KAS and KPS in each recruitment turn. With the UT status now, Ladakhi educated youths have lost such opportunities. Moreover, such opportunities look rare for the future.
•    The District Recruitment Boards in Ladakh used to recruit hundreds of District and Divisional cadre employees in each district of Ladakh in a year in the erstwhile J&K State. This is not happening in the new Union Territory set up even the District level recruitment Boards are not yet in place. It is being said that the recruitment policy is under consideration.
•    With the abrogation of Article 370 and 35A, the “J&K Grants of Domicile Certificate (Procedure) Rules, 2020” has come into effect in the Union Territory of Jammu and Kashmir. It provisions domicile certificates to those who have 15 years minimum residency in J&K or has studied for seven years and appeared in class 10th and 12th examination in an educational institution located in the UT of J&K or children of those central Government officials who have served in J&K for a total period of 10 years and the registered migrants. The new domicile settlers now have the right to obtain Government jobs, lands ownership and seats in the professional institution etc.
•    The conditions of domicile that promulgated in UT of J&K, if applied in the UT of Ladakh, would threaten the very existence of the indigenous tribal people of Ladakh and its culture will disappear in a matter of few years.

The Ramifications 
•    Although the conferment of Union Territory status to Ladakh has freed it from the discrimination of Kashmiri dominance, it has deprived it of various safeguards available under Article 370 and 35A of the Constitution of India while under the erstwhile State of Jammu and Kashmir.
•    After achieving the UT status, Ladakh is now exposed at all front, rendering it vulnerable to indiscriminate mining and exploitations of its natural resources, endangering its ecology irreparably as the local indigenous population will have very little say in these matters.
•    Despite facing discrimination in all fields, the democratic institution of Ladakh Autonomous Hill Development Councils in Ladakh had a prominent space of Ladakh's identity and dignity in the erstwhile Jammu and Kashmir State. This will now fade away amid a galaxy of bureaucratic echelons of high profile and powers in the new set up of Union Territory headed by the Lieutenant Governor, infusing a sense of inferiority in the mindset of the fragile Ladakhi society.
•    Ladakh used to have four MLAs and two MLCs in the erstwhile Assembly of Jammu and Kashmir and one MP in Lok Sabha besides one member to the Rajya Sabha sometimes to Ladakh out of the four Rajya Sabha seat of the erstwhile J&K State. Now, with the UT status, Ladakhis will lose all the above seats except the Lok Sabha seat forever. In the above circumstances, the participation of Ladakhis in democratic processes of deliberations has been reduced to the lowest ebb for ever-narrowing their identity, lost in their own nestles. Ladakh will have now only a solitary member in the Lok Sabha to represent them.
•    Ladakh used to have at least two Cabinet rank and other junior Ministers in the erstwhile Ministry of J&K Government to its MLAs and MLCs. After becoming a UT, there is no opportunity or space left for such constitutional seats of power for Ladakhis anywhere in the future.

The Remedies

The Union Territory of Ladakh without a legislature has all the implications and ramifications detailed hereinbefore. Unfortunately, the tiny population of Ladakh of around 3 lakh disadvantages it to a full-fledged State and to struggle for it seems to chase a mirage as advised by the experts. Now, Ladakh has exposed itself to all sorts of exploitations and pressures socially, culturally and economically, in the Union Territory set up.  Our great visionary leaders had envisaged special safeguards in our Constitution for the tribal concentrated population in the North East of India in the Sixth Schedule of the Constitution. Ladakh is the fit case to be put under the Sixth Schedule under the special provision provided under Article 244 (2) and 275 (1) of the Constitution because Ladakh has 98 % scheduled tribes. There are no legal impediments in extending the Sixth Schedule to Ladakh.

The sixth Schedule can be extended to a Union Territory on the lines of the Union Territory of Mizoram. Clause 3(58) (b) of the General Clauses Act.1897 defines State shall mean a State specified in the First Schedule to the Constitution and shall include Union Territories. Article 244 of the Constitution does not anywhere say that Sixth Schedule is confined to the tribal area of North East only as such constitutionally there is no problem in extending it to other areas. The Ministry of Home Affairs was asked whether the Sixth Schedule could be extended to any other State or area outside the North East or the intra vires of the proposed move to extend the Sixth Schedule status to Darjeeling Gorkha Hill Council. He had conveyed no legal or constitutional objection to carrying out the proposed amendment in a written response.  The Ministry of Tribal Affairs, Home and Law/ Justice have conveyed their no objection to the National Commission of Scheduled Tribes if it recommends the grant of Tribal Area status to the Union Territory of Ladakh in the Sixth Schedule of the Constitution of India in its 118th meeting held on 27.8.2019. Accordingly, the National Commission for Scheduled Tribes has officially recommended the case of Ladakh to include it under the Sixth Schedule of the Constitution as per their decision taken on 11th of September, 2019, in its 119th meeting.

The provisions of the Sixth Schedule can be amended in three different ways:-

a) By Constitutional amendment by following procedure laid down in Article 368 of the Constitution.
b) By an ordinary Parliamentary legislature as provided in paragraph 21 of the Sixth Schedule and
c) By a notification issued by the Governor under paragraph 1 (3) of the Sixth Schedule resulting in an amendment to the table appended to paragraph 20 of the said Schedule.

After independence, the Sixth Schedule has been amended on more than ten occasions.

The grant of the Sixth Schedule has been the first commitment to the people of Ladakh by the Bhartiya Janata Party in the general elections to the Parliament in 2014 and 2019, followed by the Ladakh Hill Council election 2020 in their election manifesto and

The system of local governance under the Sixth Schedule is a guarantee for the protection of ethnicity, culture, land, ecology and jobs of the tribal populated areas from the threats of large scale influx of non-indigenous and non-tribal from other parts of the country.

The Imperatives

•    In the wake of the inclusion of Union Territory of Ladakh in the Sixth Schedule of the Constitution, it is expedient to apply it with contextual amendments in relevance to the situation and conditions of Ladakh to safeguard its unique tribal/ indigenous identity, valued culture, fragile ecology, scares lands and jobs. Over the years, the Sixth Schedule of the Constitution was applied in ten Districts / tribal areas in four North Eastern States of the country with amendments as per their respective requirements and needs of different tribals on more than ten occasions. Therefore, putting UT of Ladakh in the Sixth Schedule of the Constitution, the following Ladakh specific vital matters requires to be delineated in clear terms in the proposed amendments to be affected:-
•    Provided always that all the clauses have proven effective in percolating benefits to the grassroots during their functioning in the last 25 years of the Ladakh Hill Councils under the Ladakh Autonomous Hill Development Council Act.1995 should have to be retained in the new set-up under the Sixth Schedule.
•    Paragraph 3B of the Sixth Schedule, with all relevant additional powers, extended to the Bodoland Territorial Council to make laws in respect of the subjects, should also be extended to UT of Ladakh.
•    The ADCs should be given all executive, administration and financial powers in respect of subjects transferred to it.
•    The existing Ladakh Autonomous Hill Development Councils of Leh and Kargil are statutory bodies by an Act of the erstwhile Jammu and Kashmir State. It should be replaced by the Constitutional bodies envisaged under the Sixth Schedule of the Constitution and with the nomenclature as, “Ladakh Autonomous District Council, Leh / Kargil as the case may be.
•    Each Autonomous District Council should consist of 35 members, out of which 30 should be selected based on adult suffrage. The remaining five should be nominated- one each from Shea, Sunni, Christian communities, one from amongst the less privileged Buddhist community and one monk from amongst the Lamas of Gompas in the District.
•    The nominated members should have no voting rights.
•    Moreover, the Member of Parliament from Ladakh, all Chairman of the Block Development Councils, and President of the Municipal Committees will be ex –officio members of the respective ADCs but the ex-officio members shall have no voting rights.
•    There should be a 33 % reservation to the women from amongst the total constitutions by rotation.
•    An Executive Council should be answerable to the General Council in each of the ADCs comprising not more than 7 Executive Members among the members of the General Council on the lines of LAHDCs headed by the Chief Executive Councilor/Chairman.
•    The Chief Executive Councilor/Chairman shall be elected by the General Council through an election. The CEC/Chairman shall nominate the remaining 6 Executive Councilors on the assumption of the post of CEC from amongst the General Council members. However, one EC out of the six should be from Shea, Sunni and Drokpa communities.
•    Provided always that the CEC/Chairman should be of the rank of a State Cabinet Minister and the ECs as that of a MOS having equal salaries and perks, etc. They shall also perform normal duties and powers functioned and exercised by them. The Councilors should have salaries and perks at par with MLAs in other State/ UTS of the country.
•    The constituency in Phyang, Upper Leh, Lower Leh and Skurbuchan should be delimited to create an additional seat out of each. However, the new one created from Skurbuchan should comprise exclusively Drokskat speaking populated villages/hamlets with adjustment of Skurbuchan, Lamayuru and Lingshet constituencies with each other.
•    Anti defection law of the country should apply to the UT of Ladakh's proposed ADCs.

Though under the paragraphs of the Sixth Schedule, ADCs are like miniature State having specific powers and responsibilities in respect of all the three pillars of a Government, i.e. legislature, executive and judiciary. As far as the judiciary is concerned, Ladakh already stands integrated into the mainstream system of judiciary. Legislative powers can be limited to some local traditional and social system as the Faspun, Langsde and Chutsir, etc. This will strengthen them legally for their long run practices. Panchayat system should function in Ladakh with their integration with the ADCs by dint of their BDC's chairmen as an ex-officio member of ADCs and function under the overall control of the ADCs having all the functions and powers of Zila Parishad vest in the ADCs.
All centrally-sponsored schemes should be executed under the overall control and supervision of the ADCs subject to strict auditing by CAG. The ADCs should have full control over the officers and staff connected with the delegated subjects working in the ADCs area and should be competent to transfer officers and staff within the ADCs area. ACRs of these officers should be written by appropriate ADCs authority.        
Relationship with the land is the basis of Ladakhis indigenous identity. Therefore, the land owned by the tribal people of Ladakh should be protected:- 

•    Lands owned and under the possession of religious institutions of Ladakh be prohibited from the transfer.
•    Lands owned by indigenous tribal of Ladakh are prohibited from transfer to non-tribal other than eight tribes of Ladakh or in between them who stands declared scheduled tribes of Ladakh.
•    Benami transfer of lands should be completely banned in Ladakh. In case of contravention, the illegally transferred land should vest in the respective ADCs who should be empowered to dispose of for generation of resources to the ADCs provided always that the buyer should be indigenous tribal or for a public purpose in exchange of compensations.
•    The ADCs be empowered to regulate Banjar lands in Ladakh.
•    The ADCs be empowered to formalize and update land records from time to time.
•    Provided always that tribal-owned land and Government barren lands, i.e. Banjar lands required for a public purpose or industrial setups shall be governed by the statutes of “ Right to Fair Compensation and Transparency in Land Acquisition and Resettlement Act.2013” with the informed consent of the local population through the ADCs

Mining and minerals are the single largest factor endangering the ecosystem of the tribal area of Ladakh. Therefore,
•    Permission and leasing of mining authority should vest in local ADCs.
•    80% of royalty should be shared with the local ADCs.
•    Mining should not be permitted without the prior informed consent of the locals.
•    “The Samtha v/s State of Andra Pradesh & Ors ( 1997) judgment, where the Supreme Court declared that the transfer of tribal land to private parties for mining was null and void. It further said that in such tribal area, only a Cooperative consisting of tribal or a public sector undertaking can mine,“ have to be kept in mind concerning Ladakh.
•    Mine and Minerals (Development and Regulation) Amendment Act.2015 or MMDRA Act and its rules empower the State Govt. to change the eligibility criteria for mining lease auction keeping in mind Article 244 of the Constitution should be adhered in UT of Ladakh.
•    All laws and rules of different states, restricting and prohibiting the transfer of tribal lands, should be kept in mind as that of Andra Pradesh Scheduled Areas and Land Transfer Regulation, 1959 and the Maharashtra Land Revenue Code, 1966, etc in guiding the land policy for the tribal area of the UT of Ladakh.
•    There should be a complete ban on the mining of Uranium in Ladakh

Recruitments in Government jobs are held up because Ladakh needs domicile rules as that of the Union Territory of Jammu and Kashmir, but the criteria and conditions have to be quite different to that of UT of Jammu and Kashmir. Since Ladakh is populated by 98 % STs, domicile of the Union Territory of Ladakh should be based on the following conditions: 

•    That he/she belongs to one of the eight different scheduled tribes of Ladakh.
•    If he/she is not an ST from Ladakh, but his/her or their parents or ancestors are living in Ladakh from the year of independence, i.e. 1947 and owning and possessing immovable properties in Ladakh.
Ladakh should have its own separate State Cadre employees as LAS and LPS, etc., with a separate Public Service Commission for their recruitments.

•    The Divisional and District Recruitment Boards in Union Territory of Ladakh should be set up immediately so that the Divisional and District cadres vacancies are filled up at the earliest.
•    Since there has been no Divisional and District-level recruitment in the last three years in the Union Territory of Ladakh, there should be an age relaxation of 3 years for the local candidates applying for Government recruitments in UT of Ladakh.
•    The all-India reservation pattern applicable to all the union territories, i.e. 15% for SCs, 7.5% for STs, 27% for OBCs and 10% for EWSs, should not apply Ladakh as it is populated by 98% STs.

People of Ladakh identify themselves amongst the common citizen of India and are fully integrated into the mainstream. Their patriotism and loyalty towards the nation have undergone litmus tests during the Pakistani tribal invasion in 1947, the Chinese aggression of 1962 and all wars with Pakistan in 1965, 1971 and 1999. The Constitution of India made unity in diversity, the bedrock of Indian polity. Therefore the country is duty-bound to protect and safeguard the cultural diversity of its different ethnic communities.

•    Now, Ladakh is a case in hand, which cultural assimilation with the mainstream will lead to its disappearance if their special ethnic identity, their valued cultural heritage are not protected. Therefore, a wide range of development-oriented initiatives is taken up to protect and promote the cultural heritage of Ladakh.
•    Photo language is given constitutional recognition by including it in the Eighth Schedule of the Constitution of India and a National Council for Promotion of Bhoti Language is constituted.
•    A Cultural Complex at Leh for the existing “Ladakh Academy of Art, Culture and Languages” to accommodate Art Galleries, Museum, Library and activities of researches and publications, etc. be sanctioned. And 
•    A college of Music and Performing Art is sanctioned for Ladakh.

The writer is a Former MLA and  Ex President of District Congress Committee, Leh. You can send your views and comment at sampheltsering46@gmail.com