Why new J&K government will be stunted – no matter who wins

On Tuesday, the results of the first Assembly elections since the downgrading of Jammu and Kashmir into a union territory will be announced.

While the alliance of the National Conference and the Congress is expected to have an edge, the Bharatiya Janata Party is likely to emerge as a bigger player in its traditional bastion of the Jammu division.

But irrespective of who forms the government, what powers will the Jammu and Kashmir legislative Assembly have, especially after the changes introduced since Article 370 of the Constitution was scrapped in 2019? Experts contend that the shadow of the lieutenant governor – and by extension the Centre – will make it difficult for the government to fulfill the aspirations of the people who voted for it.

From state to UT

Legal experts say the powers of an elected government in a union territory set-up are naturally limited.

The law at the core of the transformation of the erstwhile state to a union territory is the Jammu and Kashmir Reorganisation Act, 2019. According to this law, the law enforcement agencies are under the control of the central government and its representative – the lieutenant governor.

“The space for an elected government has shrunk,” said senior advocate Zaffar Shah.

According to Section 32 of the Jammu and Kashmir Reorganisation Act, the Assembly is competent to make laws in the matters enumerated in the state list – except on police and public order.

Unlike state legislatures, which can legislate on both the state list and concurrent list, a union territory’s assembly has a smaller legislative domain. Of the eight union territories in India, only three have their own legislatures – Delhi, Puducherry and Jammu and Kashmir.

A former official familiar with the law-making in Jammu and Kashmir said, “Since the legislative powers of the Assembly have been curtailed to exclude police and public order, the executive powers and competence of the new government will be seriously undermined and compromised.”

Such an arrangement makes the Centre-appointed lieutenant governor all-powerful.

“In a state, everything revolves around the home portfolio, which comprises police, law and order, prisons, jails, detentions etc,” the former government official pointed out.

But in July, the central government further widened the scope of lieutenant governor’s powers – making him the sole authority to decide on matters related to police, public order, appointment and transfer of All India Services officers and senior law officers, including the advocate general of the union territory.

“Consider a government which cannot choose its bureaucracy and which has no administrative control over a district police officer or SHO [station house officer] for that matter, is it any better than a municipal committee?” the former official asked.

However, Shah argued that the elected government will not be completely stifled. “In big decisions like imposition of taxes, the government may not have much say because everything is approved by the LG,” he said. But in the case of matters such as the transfer of a teacher from one school to another or doctors from one hospital to another, “the LG would not bother himself about such day-to-day affairs”, said Shah.

The changes in Jammu and Kashmir since 2019 suggest that the central government wants the local government to have very little control over the affairs of the region, experts said. “One has to look at it politically. First, a political decision is taken and then law is made in accordance with that,” Shah added.

While nobody is sure how smoothly the affairs of the government will run once an elected government is in place, there is every likelihood of friction between the lieutenant governor and the popularly elected government – as has been seen in the case of the Aam Aadmi Party government in New Delhi. However, “only the elected government is answerable to the people because they represent the people who voted for them on the basis of their manifestos”, said Shah.

Shadow of LG

Minus police and public order, the legislature can make laws on other items on the state list. These include areas like local government institutions such as municipal corporations, public health, sanitation, hospitals and land revenue. Among the key areas on which the Assembly can legislate are the “rights in and over land” and agriculture.

However, even the bills passed by the Assembly on areas it has jurisdiction over, will need the final approval of the Centre-appointed lieutenant governor before becoming a law.

“The lieutenant governor can stall any legislation if he deems necessary and the legislature would be helpless even if the matter is within its legislative powers,” said the retired official.

This is because the lieutenant governor is not under any obligation to give his assent to a bill even if it is passed for the second time. “In respect of all other states, if a bill is again passed by the legislature with or without amendments after having been returned by the governor for reconsideration, the governor has no power to withhold his assent and the bill becomes law,” he emphasised.

But Section 38 of the J&K Reorganisation Act empowers the lieutenant governor to reserve the bill for the consideration of the president even after it has been passed by the Assembly for the second time. Similarly, Section 39 of the Act states that there is no time frame by which the president’s assent or dissent for a bill should come.

Shah said that this situation will be unfavorable for an elected government. “When an elected government has to get everything passed through a bottleneck, which may or may not allow their agenda to cross through, then the political parties in power may not be able to fulfill the objectives they have set out in their manifestos.”

The shadow of the lieutenant governor also hangs over the financial matters of the union territory. As per Section 67 of the Reorganisation Act, the union territory shall have a “Consolidated Fund” which will include all the revenue, grants and loans received from the union territory administration and the central government. But the custody of the fund and withdrawals from it “shall be regulated by rules made by the Lieutenant Governor”, the section reads.

The legislative Assembly will also be at the mercy of the lieutenant governor to bring any law or amendment in matters related to finance. Section 36 of the Reorganisation Act clearly underlines that a bill or amendment pertaining to financial matters like tax and expenditure of the union territory cannot be introduced in the legislative Assembly “except on the recommendation of the Lieutenant Governor”.

Nominated members

The number of nominated members in the Jammu and Kashmir legislative assembly has also gone up to five from two, after Parliament passed the Jammu and Kashmir Reorganisation (Amendment) Bill, 2023, in December.

According to the amendment, the lieutenant governor of Jammu and Kashmir has the power to nominate three members to the legislative Assembly. While two of the members – one of whom should be a woman – must be from the “community of Kashmiri migrants”, the third member must be from the community of “displaced persons from Pakistan-occupied Jammu and Kashmir”.

The amendment also retained an earlier provision of nominating two women to the Assembly by the Lieutenant Governor.

With the nominated members, the effective overall strength of the Jammu and Kashmir’s legislative assembly goes up to 95 from 90. That means a party would need a majority of 48 seats to form the government.

With results pending, there has been speculation that even before the government is sworn in, the lieutenant governor might appoint five nominated members from the Bharatiya Janata Party, which heads the ruling coalition at the national level.

“Why would the central government let go an opportunity to make nominated members count?” said the former official. “But if the NC-Congress alliance is able to muster support of more than 47 elected members, the nominated members would not change the equations.”

In the Assembly, the nominated members are likely to act as a primary filter against any legislation that the central government disapproves of. “The nominated members of the legislature would enjoy all rights and privileges to which the elected members are entitled,” the former official added. “They have the right to vote, the right to participate in assembly business and a role in government formation.”