MHA’s amended rules widen L-G’s powers for oversight over J&K government

NEW DELHI: The Union Ministry of Home Affairs (MHA) on July 13, 2024, evening amended the Transaction of Business Rules which widened the ambit of the administrative role of the Lieutenant Governor of J&K. The amendment gives the L-G more powers and say in matters about police, public order, and All India Service (AIS). Now, all proposals about the transfer of Administrative Secretaries and AIS will be submitted to the LG by the Chief Secretary.

The MHA carried out amendments in the Business of Jammu and Kashmir Rules, 2019 ahead of speculations that the Election Commission of India is likely to announce polls for the J&K Legislative Assembly, which the poll body has been unable to conduct since 2018 after the PDP-BJP government fell.

According to amendments, all proposals about the transfer of administrative secretaries and All India Services officers will be submitted to the L-G by the administrative secretary general administration department through the Chief Secretary.

“Provided also that in respect of matters connected with posting and transfer of Administrative Secretaries and cadre posts of All India Services officers, the proposal shall be submitted to the Lieutenant Governor by the Administrative Secretary, General Administration Department through the Chief Secretary,” the MHA notification says.

It says no proposals on police, public order, All India Services, and Anti-Corruption Bureau (ACB) shall be concurred or rejected unless it has been placed before the Lieutenant Governor. According to the amendments, all key proposals would now go to the Lieutenant Governor through the Chief Secretary.

The amendments will assume great significance once there is an elected Government in the Union Territory headed by the Chief Minister.

Under the new amendment, even the proposals for the appointment of Advocate General and law officers shall be submitted to the Lieutenant Governor through the Chief Secretary and the Chief Minister.

“The Department of Law, Justice and Parliamentary Affairs shall submit the proposal for appointment of Advocate-General and other Law Officers to assist the Advocate-General in the court proceedings, for approval of the Lieutenant Governor through the Chief Secretary and the Chief Minister,” the amendments read.

“No proposal which requires the previous concurrence of the Finance Department with regard to ‘Police’ ‘Public Order’, ‘All India Service’ and ‘Anti-Corruption Bureau’ to exercise the discretion of the Lieutenant Governor under the Act shall be concurred or rejected unless it has been placed before the Lieutenant Governor through the Chief Secretary,” the amendment says.

“Any proposal regarding grant or refusal of prosecution sanction or filing of appeal shall be placed before the Lieutenant Governor through the Chief Secretary by the Department of Law, Justice and Parliamentary Affairs,” the notification adds. The notification says proposals regarding the Prisons, Directorate of Prosecution and Forensic Science Laboratory shall be submitted to the Lieutenant Governor by Administrative Secretary, Home Department through the Chief Secretary.

J&K currently is without a Legislative Assembly. The last Assembly elections in Jammu and Kashmir were held in 2014, leading to the formation of a BJP-PDP coalition government led by Mehbooba Mufti. However, the coalition ended in 2018 after the BJP withdrew its support to the Mehbooba government and since then Assembly polls have not been held in J&K.

The Supreme Court, in its decision on December 11 last year, while upholding the abrogation of Article 370, directed the Election Commission of India to hold elections in Jammu and Kashmir by September 30, 2024. Chief Justice DY Chandrachud, leading a five-judge Constitution bench, said that direct elections were a paramount feature of democracy.

The MHA has on Saturday, July 13, 2024, provided clarification on the scope of the J&K Legislative Assembly’s lawmaking powers after it amended the Transaction of Business Rules for J&K expanding the administrative role of the Lieutenant Governor (L-G).

On July 14, 2024, The Hindu quoted unnamed sources that provided the clarification in respect of the amended rules on the powers of the J&K L-G. The amended rules were notified by the MHA on Friday that expanded the role of the L-G with the aim of giving him more powers for oversight on the functioning of the J&K government after the elections are held in the next few months.

According to these sources quoted by The Hindu, the J&K Legislative Assembly will be able to make laws on matters in the State List, except for “Police” and “Public Order,” as well as items in the Concurrent List of the Seventh Schedule to the Constitution of India.

The Concurrent List covers a wide range of subjects including education, marriages, taxes, property transfer, forests, trade unions, labour welfare, charitable organizations, and trade and commerce. This effectively means that the Assembly, once constituted, will not have authority over these matters.

Opposition political parties strongly criticized the government’s move, describing it as a “betrayal” of J&K and an “attack on the Constitution of India.”

Congress president Mallikarjun Kharge accused the Modi government of wanting to delay the restoration of full statehood to J&K and keep any newly elected state government at the mercy of the L-G by limiting its executive power.

Congress general secretary Jairam Ramesh remarked that the increased powers given to the Jammu and Kashmir L-G suggested a dim outlook for the restoration of a full-fledged statehood in the near future.

In a post on ‘X’, he said, “The only meaning that can be drawn from this notification is that full-fledged statehood for Jammu and Kashmir does not seem likely in the immediate future.”

He said there has been a consensus across political parties that Jammu and Kashmir must immediately become a full-fledged state of the Indian Union once again.

“The self-anointed non-biological PM is on record saying that full-fledged statehood would be restored to Jammu and Kashmir, which had been reduced to a Union Territory in August 2019,” Ramesh said.

Former J&K Chief Minister Omar Abdullah suggested on social media platform X (formerly Twitter) that this change indicated upcoming elections in J&K. He emphasized the need for a firm commitment to restore full, undiluted statehood to J&K before elections, arguing that the people of J&K deserve better than a “powerless, rubber stamp CM.”

PDP chief Mehbooba Mufti’s daughter and media advisor Iltija Mufti highlighted the perceived agenda behind the decision, suggesting that it aimed at limiting the powers of any future elected government in the region.

“The order seeks to disempower the powers of the next Jammu and Kashmir state government only because the BJP doesn’t want to cede control or lose its iron grip over Kashmiris. Statehood is out of the question. An elected government in Jammu and Kashmir will be reduced to a municipality,” she said.

She raised concerns about the potential impact of the Union government’s decision on the upcoming assembly elections and the Centre’s reluctance to relinquish control in Jammu and Kashmir.

Jammu and Kashmir Congress president Vikar Rasool Wani echoed the sentiment of democracy being under threat, describing the move as a “murder of democracy” that would hinder the path to true statehood restoration.

Apni Party chief Altaf Bukhari called for unity among political parties in opposing the Centre’s decision, warning against the creation of a “powerless assembly” that would diminish the effectiveness of elected representatives in serving the region’s interests.

“We appeal to all parties to shun political differences and come together on this issue. If we cannot stand united today, then we will never be.

“We should ensure that the statehood that we get is not hollow and has all powers to serve people. We have to be united to serve the interests of the people,” Bukhari added.

Sajad Lone of the Peoples Conference party viewed the amendments as part of a systematic disempowerment of the people of J&K, claiming they even violate the Jammu & Kashmir Reorganisation Act of 2019.

The PDP leader Waheed Para says why conduct elections in Jammu and Kashmir when the powers of the elected government are permanently delegated to an unelected administrator? “This erosion of the People’s Representation weakens our democratic institutions permanently,” he adds.

Parra says how can the Jammu and Kashmir Reorganisation Act be amended with an executive order? “The BJP has argued since the abrogation of Article 370 that Jammu and Kashmir will be empowered. Now the J&K Assembly will not have the powers of a municipality,” Para adds.

“The BJP government has reduced the Assembly elections to employment package for 90 people when the whole power will lie with LG. Kashmiri leadership should come together and jointly negotiate devolution of powers and then go for elections,” he added.

The PDP leader Aditya Gupta says that future governments in J&K will have to contend with significant oversight and decision-making power vested in the Lieutenant Governor. “This undermines the principle of federalism and the autonomy of the elected government. What is the rationale for holding elections if substantial administrative control remains with the Lieutenant Governor and not with elected representatives,” Gupta adds.

In response to these criticisms, MHA sources asserted that the July 13, 2024 notification does not alter the balance of powers established in the J&K Reorganisation Act, 2019. They stated that the Act, passed by the Indian Parliament in August 2019 and upheld by the Supreme Court, clearly defines the L-G’s functions. The sources claimed that the current notification aims to provide better clarity on administrative processes in the Union Territory of J&K.

The sources further explained that according to Section 53 of the Act, the L-G has discretionary powers in matters outside the purview of the Legislative Assembly, related to All India Services and the Anti-Corruption Bureau, and in any other matter required by law.

J&K has been under Central rule since June 2018. The government has promised to restore statehood after Assembly elections are held. The Supreme Court has set a deadline of September 30, 2024, for conducting these elections.

The amended Rules give the L-G more authority in several areas:

1. Matters related to police, public order, and All India Services requiring prior concurrence of the Finance Department,
2. Transfers and postings in these areas,
3. Appointment of the Advocate-General and Law Officers, and
4. Decisions on granting or refusing prosecution sanctions or filing appeals

The notification specifies that no proposal requiring previous concurrence of the Finance Department in these areas can be approved or rejected without being placed before the L-G through the Chief Secretary. The Department of Law, Justice, and Parliamentary Affairs must submit proposals for legal appointments to the L-G through the Chief Secretary. All matters related to Prisons, the Directorate of Prosecution, and the Forensic Science Laboratory also require the L-G’s approval.

The notification said that the MHA first notified these Rules on August 28, 2019, specifying the functions of the L-G and the Council of Ministers in the administration of the Union Territory of J&K.

On August 5, 2019, the special status of J&K under Article 370 of the Constitution was revoked and the former State was divided into two Union Territories – J&K and Ladakh. J&K has been under Central rule since June 2018. The Government has assured that Statehood will be restored after Assembly elections are held and the notification comes days ahead of the September 30 deadline fixed by the Supreme Court to conduct the elections in the Union Territory.

The central government has said that Statehood will be restored after Assembly elections are held. The Constitution Bench of the Supreme Court has ordered the Election Commission to conduct elections to the J&K Assembly before September 30, 2024.

(The news article has been updated on July 25, 2024, with more inputs)