12 August 2019
&K Assembly — like, unlike Delhi
Source: By Kaunain Sheriff M: The Indian Express
The Jammu and Kashmir Reorganisation Bill, 2019, just passed by Parliament, paves the way for formation of the Union Territory of J&K. It will join two other Union Territories — National Capital Territory of Delhi and Puducherry — which, through Article 239 A of the Constitution, have a Legislative Assembly to enact laws on certain subjects and a Council of Ministers headed by a Chief Minister to aid and advise the Lieutenant-Governor on subjects related to such legislation. For subjects outside the purview of the Assembly, the Lieutenant-Governor does not need the aid and advice of the Chief Minister.
Some key subjects where the model proposed for Jammu & Kashmir is similar to that of Delhi, and where there are variations between the two:
Extent of legislative power
Section 13 of the Bill states that the provisions contained in Article 239 A of the Constitution that are applicable to Union Territory of Puducherry shall also apply to the Union Territory of Jammu and Kashmir. The UT Assembly has the power to enact laws on matters under the State List and the Concurrent List, barring subjects that are exclusively under the ambit of the Union Government.
The Seventh Schedule has 61 subjects in the State List — law & order, health, land, local government etc — and 52 in the Concurrent List such as forests, wildlife protection, social security, employment, etc.
In the J&K Bill, Section 32 proposes that the Assembly can make laws on any subjects in the State and Concurrent lists except on state subjects relating to “public order” and “police”. Therefore, all laws on these two subjects will be directly under the Centre. This is the case in Delhi, too.
In Delhi, by insertion of Article 239AA and by virtue of the Sixty-ninth Constitutional Amendment passed by Parliament, the Assembly cannot legislate on matters in entry 18 of the State List, which is land. In J&K, the Assembly can do so.
Control of the ACB, which has the power to register FIRs on corruption cases and make arrests, was a contentious issue between Delhi’s AAP government and the Centre. In February this year, a two-judge Supreme Court Bench held that the ACB will be under control of the L-G and the Delhi government has no police powers.
For the proposed UT of Jammu & Kashmir, the Bill is very clear. Section 53(2)(iii) states that the Lieutenant Governor shall, in the exercise of his functions, act in his discretion, in matters related to “All India Services and Anti-Corruption Bureau”. Therefore, all appointments and other administrative matters related to the ACB will be directly under the Lieutenant-Governor.
In Delhi, another bone of contention has been services. A Bench of Justices A K Sikri and Ashok Bhushan differed on the issue of transfer of officers posted in Delhi, and referred the matter to a three-judge Bench.
For J&K, Part XIII and Section 88(4) of the Bill make it clear that the Lieutenant-Governor will have discretionary powers relating to composition, strength and allocation of officers of the Indian Administrative Service, Indian Police Service and Indian Forest Service
Section 92 deals with provisions relating to “other services”. It states: “Every person who, immediately before the appointed day, is holding or discharging the duties of any post or office in connection with the affairs of the existing State of Jammu and Kashmir in any area which on that day falls within one of the successor Union Territory, shall continue to hold the same post or office in that successor Union Territory, and shall be deemed, on and from that day, to have been duly appointed to the post or office by the Government of, or other appropriate authority in, that successor Union Territory.” It adds: “Provided that nothing in this section shall be deemed to prevent a competent authority, on and from the appointed day, from passing in relation to such person any order affecting the continuance in such post or office.”
The “competent authority” mentioned, therefore, can alter the posting of an officer currently employed with the Jammu & Kashmir government. However, as in Delhi, it is unclear whether the transfer of officers will be under the exclusive domain of the Lieutenant-Governor.
Section 55 of the J&K Bill states that the Lieutenant-Governor shall make rules on the advice of the Council of Ministers for the allocation of business to the ministers, for the more convenient transaction of business with the ministers including the procedure to be adopted in case of a difference of opinion between the Lieutenant Governor and the Council of Ministers or a minister. The same rule applies to NCT of Delhi.
Section 36(3) states that if a Bill which, if enacted and brought into operation, would involve “expenditure from the Consolidated Fund of Union Territory”, it shall not be passed by the Legislative Assembly of the Union Territory “unless the Lieutenant Governor has recommended to the Assembly, the consideration of the Bill”. The same rule applies to NCT of Delhi.