Srinagar: In his recent independence day speech from the walls of the Red Fort in Delhi, Prime Minister Narendra Modi announced that Jammu and Kashmir will have its own prime minister and ministers after the ongoing delimitation exercise ends.
But his government has already begun to undermine the role of the elected governments of the Union Territory of Jammu and Kashmir (J&K UT) by promulgating the Government of the Union Territory of Jammu and Kashmir Rules of Business Transaction, 2019 instead. to await the advice of the future council of ministers: mandatory advice under the Jammu and Kashmir Reorganization Act, 2019.
At present, the territory of the Union of Jammu and Kashmir does not have an elected government or a council of ministers and is under a direct central government.
Regulation and right of reorganization
On August 27, the Union Ministry of the Interior (MHA) released the rules for conducting government transactions in the J&K UT, as well as the mechanism to be adopted if there are differences between the Lieutenant Governor (LG) of the UT and the council of ministers or a minister.
“In exercise of the powers conferred by section 55 of the Jammu and Kashmir Reorganization Act, 2019, read with the Proclamation, dated October 31, 2019 issued under section 73 of said Act, the President hereby establishes the following rules, ”says the MHA Notice.
But the Jammu and Kashmir Reorganization Act 2019 unambiguously states that the LG of J&K UT will set the rules on the advice of the council of ministers.
Section 55 of the law says:
(1) The Lieutenant Governor shall establish rules with the advice of the Council of Ministers:
(a) for the assignment of business to the Ministers; and
(b) for the most convenient transaction of business with the Ministers, including the procedure to be adopted in case of difference of opinion between the Lieutenant Governor and the Council of Ministers or a Minister.
This means that the recommendation of the council of ministers is binding when it comes to formulating rules that deal with the procedures for the sharing of power between LG and the elected representatives of J&K UT.
J&K LG Manoj Sinha. Photo: Twitter / @ diprjk
How the rules were promulgated
To issue these new rules, the BJP-led central government invoked the proclamation that had been issued by the President of India on October 31, 2019 to enforce the President’s rule on J&K UT.
The presidential proclamation is an instrument similar to that issued for the imposition of the government of the president in the states under article 356 of the Constitution of India, which is not applicable to the territories of the Union.
New Delhi officials and the J&K administration said The wire that to issue the new transaction rules, the Center invoked the proclamation of October 31 that confers all powers to the LG and also suspends Section 55 of the Reorganization Law that relates to the LG acting with the council of ministers .
“By the Proclamation of October 31, 2019, issued under Section 73 of the Jammu and Kashmir Reorganization Act 2019, the President of India assumed all the powers and functions of the government of the Union Territory of Jammu and Kashmir and all powers vested in or exercisable by the Deputy Governor of the Union Territory of Jammu and Kashmir. By means of this proclamation, the provision of article 55 of the Reorganization Law regarding action by the council of ministers has also been suspended. As such, the President can exercise powers under the Reorganization Act, which the Deputy Governor of Jammu and Kashmir can exercise. So the president has exercised the powers granted to the LG to frame rules under the Reorganization Law without consulting the council of ministers because the provision is suspended, ”officials said.
Can the council of ministers change the rules?
A legal expert said that the council of ministers of the territory of the Union will not be able to change the commercial rules against the wishes of the Center or the LG.
“The rules framed by the Center explicitly establish that any contentious matter between the LG and the council of ministers will be decided by the president. If the LG opposes any change in the rules proposed by the council of ministers, it will go to the president of India, whose decision will be final. So the council of ministers cannot go against the wishes of the LG and the Center by recommending changes to the rules, ”he said.
Many senior J&K UT management officials said The wire that they had not faced any impediments in the transaction of government business in the last 10 months since the state of the former state of Jammu and Kashmir was demoted to Union territory.
“The business of the UT administration was being conducted in accordance with the business rules of the former state of Jammu and Kashmir,” said an official.
A former bureaucrat said there was no rush to frame the rules. “I don’t think there was an urgency to enact the rules. The government should have left the framework of UT trade rules to the council of ministers to allow it to exercise its statutory powers. They cannot be denied something that has been entrusted to them under the Reorganization Law, ”she said.
He also said that these rules mainly refer to the functioning of an elected government and its organs, such as the council of ministers.
“The central government cannot justify framing these rules on the grounds that the Delhi and Puducherry TUs have similar rules. Nor can they cite the excuse that the president has framed rules for the other UTs when the Reorganization Law clearly establishes that these rules must be framed with the council of the J&K council of ministers, ”he said.
On October 31, 2019, the day the J&K Union territory was created, the then LG, Girish Chandra Murmu, ordered that the provisions of the Jammu and Kashmir Trade Rules, which had been applicable to the former state of Jammu and Kashmir, should apply to the territory of the Union of Jammu and Kashmir for the transaction of government business, subject to the modification that any reference to the governor and the prime minister would be construed as a reference to the LG of J&K UT.
Therefore, the government business transaction in J&K UT was conducted in accordance with the old state business rules between October 31, 2019 and August 27, 2020.
Former Deputy Governor of Jammu and Kashmir Girish Chandra Murmu during the inauguration of the improved Maulana Azad Stadium in Jammu on Wednesday, January 15, 2020. Photo: PTI
Political parties flay rules
In separate statements, the Apni Party and the Panthers Party have called the new rules “autocratic” and “repulsively bizarre.”
“The new rules that provide for the allocation of powers and governmental affairs between the legislators of J&K, the LG and the government of the Union will almost make the elected representatives superfluous by taking away most of the powers that are conferred on them in a regular state. , ”Said Chairman and former Panthers Party Minister Harsh Dev Singh in a statement.
The Apni Party strongly opposed the order and demanded the restoration of statehood in Jammu and Kashmir. He also demanded elections to end “such undemocratic and arbitrary decisions.”
“It is very regrettable that we are witnessing that day-to-day decisions are arbitrarily made and imposed in a very unethical way,” the party said in a statement.
Interestingly, these rules were framed at the same time that a powerful six-party alliance in J&K rejected constitutional changes made by the BJP-led government on August 5 last year.
.
