Apurva Vishwanath
J&K Reorganisation Act of 2019 created a vastly different structure, in which the L-G, appointed by Centre, has the most important role. What powers will the new Assembly of the Union Territory of J&K have?
The first phase of polling for the Jammu and Kashmir Assembly took place on Wednesday. Given that this is the first election since 2019 when the constitutional compact of Jammu and Kashmir was altered by the abrogation of Article 370, the new Legislative Assembly will be substantially different from earlier Assemblies.
The constitutional changes of August 2019 took away the statehood of Jammu and Kashmir – thus, the new Assembly will be for a Union Territory (UT), not a state. What powers will the new Assembly of Jammu and Kashmir have?
J&K, Puducherry, Delhi
The Jammu and Kashmir Reorganisation Act, 2019 created two UTs – the UT of Ladakh without a legislature, and the UT of Jammu and Kashmir with a legislature.
An amendment was made to the First Schedule of the Constitution, which lists all states and UTs, and to Article 3 of the Constitution, which deals with the “Formation of new States and alteration of areas, boundaries or names of existing States”.
section 13 of the 2019 Act states that Article 239A of the Constitution (“Creation of local Legislatures or Council of Ministers or both for certain Union territories”), which provides for the administration of the UT of Puducherry, shall also apply to the UT of Jammu and Kashmir.
Delhi, the only other Union Territory with a legislature, is dealt with separately in the Constitution – under Article 239AA. As the national capital, Delhi has a unique constitutional status, which has been the subject of much litigation before the Supreme Court.
While the Supreme Court has, in judgments delivered in 2018 and 2023, upheld the powers of the legislature of Delhi, a constant, politically charged tussle between the Lieutenant Governor and the state government has been seen in recent years.
In Delhi’s case, three subjects – land, public order, and police – are reserved for the LG.
However, control over ‘services’, or the bureaucracy, has been a bone of contention between the state and the Centre. After the SC clarified that the LG cannot exercise independent discretion on subjects other than the three reserved subjects, the Centre enacted legislation in 2023, bringing services under the control of the LG. This too, is now under challenge before the court.
Delhi’s anti-corruption bureau (ACB) too, has been an issue between the state and the Centre.
The Union Ministry of Home Affairs issued a notification in 2015, saying Delhi will have control of ACB only to the extent that it deals with Delhi’s bureaucrats, and not government officers in the territorial jurisdiction of Delhi. Even so, the consent of the MHA is required to prosecute central government officers working in the Delhi government.
Powers of the Assembly
As per the 1947 Instrument of Accession, J&K had acceded to India in respect of only defence, foreign affairs, and communications. Under Article 370 as it stood before the abrogation, Parliament had limited legislative powers with respect to J&K. Over the years, however, the Centre’s lawmaking power was extended to cover several other subjects in the Union List (List I of the Seventh Schedule of the Constitution).
The Reorganisation Act of 2019 created a vastly different structure, in which the LG has a much bigger role compared with the state Assembly. This can be understood from two key provisions.
First, Section 32 of the Act, which deals with the extent of legislative power of the Assembly, states that “subject to the provisions of this Act, the Legislative Assembly may make laws for the whole or any part of the Union territory of Jammu and Kashmir with respect to any of the matters enumerated in the State List except the subjects mentioned at entries 1 and 2, namely “Public Order” and “Police” respectively or the Concurrent List in the Seventh Schedule to the Constitution of India in so far as any such matter is applicable in relation to the Union territories.”
States, on the other hand, can legislate on subjects in the Concurrent List, to the extent that such a law is not repugnant or contrary to the central law on the issue.
Second, even for this, the 2019 Act has a key rider – Section 36, which deals with special provisions as to financial Bills. This provision states that a Bill or amendment “shall not be introduced into, or moved in, the Legislative Assembly except on the recommendation of the Lieutenant Governor”, if such Bill deals with, among other aspects, “the amendment of the law with respect to any financial obligations undertaken or to be undertaken by the Government of the Union territory…”.
This provision has wide import since virtually every policy decision could create a financial obligation for the Union Territory.
Powers of the J&K LG
The 2019 Act also specifies the powers of the J&K LG. Section 53, which deals with the role of the Council of Ministers, states: “The Lieutenant Governor shall, in the exercise of his functions, act in his discretion in a matter:
i) which falls outside the purview of the powers conferred on the Legislative Assembly; or
(ii) in which he is required by or under any law to act in his discretion or to exercise any judicial functions; or
(iii) related to All India Services and Anti Corruption Bureau.”
This means that apart from public order and police, the bureaucracy and the anti-corruption bureau will also be under the LG’s control.
The provision also says that whenever “any question arises whether any matter is or is not a matter as respects which the Lieutenant Governor is by or under this Act required to act in his discretion, the decision of the Lieutenant Governor in his discretion shall be final, and the validity of anything done by the Lieutenant Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion”, and that “the question whether any, and if so what, advice was tendered by Ministers to the Lieutenant Governor shall not be inquired into in any court”. In the run up to the elections, a series of administrative changes have extended the powers of the LG, granting him the power to also appoint the Advocate General and law officers, and to give him a say in decisions regarding prosecutions and sanctions.
Courtesy : Indian Express
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