Last week, the Centre issued a notification, laying out the areas of governance in which the Lieutenant Governor of Jammu and Kashmir has exclusive authority – whether an elected legislative assembly is in place or not.

The Union Ministry of Home Affairs underlined that the Centre-appointed Lieutenant Governor will be 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. The Lieutenant Governor will also decide whether to grant sanction for prosecution in different cases and matters connected with prisons.

For over five years now, Jammu and Kashmir has had no elected government, and has been under the direct rule of New Delhi through the office of the Lieutenant Governor. On August 5, 2019, Jammu and Kashmir lost its special status and its statehood, as it was downgraded into a Union territory by the Narendra Modi government.

The latest notification has triggered widespread concern and sharp criticism from Opposition parties, who have unanimously termed the step as further “disempowerment” of the people of Jammu and Kashmir and institutionalisation of the Centre’s permanent writ on the restive region.

“It is aimed only at weakening the democratic voice of the people of Jammu and Kashmir,” Tanvir Sadiq, the chief spokesperson of Kashmir's oldest political party National Conference said. “The central government’s move to grant powers to an unelected lieutenant governor instead of an elected government is a clear attempt to undermine the future of a democratically elected government in Jammu and Kashmir.”

In December, while hearing petitions challenging the abrogation of Article 370, the Supreme Court had directed the Election Commission to hold Assembly elections in Jammu and Kashmir by September this year.

Experts Scroll spoke to pointed out that this disempowerment was foretold – and built into the laws that had scrapped Jammu and Kashmir’s special status in August 2019.

Jammu and Kashmir Lieutenant Governor Manoj Sinha. Credit: @OfficeOfLGJandK / Twitter

‘A glorified municipal council’

The genesis of the changes lies in the Jammu and Kashmir Reorganisation Act, 2019 – which was passed in Parliament while Kashmir was under curfew and under a communication blockade.

The act paved the way for the bifurcation of the erstwhile state of Jammu and Kashmir into two Union territories in 2019 following the scrapping of its special status under the Article 370 of the constitution of India.

After the enactment of the law, in August 2020, the Ministry of Home Affairs notified the transaction of business of the government of Union territory of Jammu and Kashmir Rules, 2019.

The July 12 notification by the Centre has amended these rules by adding the new clauses to it.

A former high-ranking official with the Jammu and Kashmir government’s law department told Scroll that such changes were almost inevitable, as the diminished powers of an elected assembly were programmed into the J&K Reorganisation Act.

“Whether today or tomorrow, the Union government had to do it,” the official said.

For example, according to Section 32 of the Reorganisation Act, the legislative assembly of Jammu and Kashmir is only empowered to make laws in the State List except matters related to ‘Public Order’ and “Police”. The Concurrent List in the Seventh Schedule to the Constitution of India is off limits for it.

According to the retired official, the amendments were necessitated by the framework of administration envisaged by the Jammu and Kashmir Reorganisation Act and the widespread discretionary powers vested with the Lieutenant Governor under the act.

“Under the Constitution, a state's executive power extends to the items on which the state legislature has legislative competence,” he said. “In the case of Jammu and Kashmir, the legislative competence has been limited to only the state list minus police and public order. So, there is nothing unusual about the new amendments because this is how the fundamental arrangement is laid down under the 2019 Reorganisation Act,” he underlined.

This leaves the would-be elected legislative assembly of Jammu and Kashmir with legislative competence on matters like land, revenue, public health, sanitation, local governing and civic bodies, irrigation and taxes, etc.

According to the Supreme Court’s directions, the Assembly elections in Jammu and Kashmir have to be conducted by September this year.

But what would a chief minister’s role in the Union territory under these circumstances be?

“He will be like a glorified sarpanch and the Jammu and Kashmir Assembly will be like a municipal council,” said the retired official.

The ‘council of ministers’ hurdle

When the transaction of business rules were first notified by the Ministry of Home Affairs in August 2020, political parties and legal experts, at that time, had pointed out a fundamental problem.

Section 55 of the Jammu and Kashmir Reorganisation Act, 2019, says that the rules had to be enacted by the Lieutenant Governor of Jammu and Kashmir “on the advice of the Council of Ministers…”

Yet, the Union government had proceeded with the framing of business rules in the absence of an elected government.

In order to get around that provision, the central government had relied on the proclamation issued by the President of India on October 31, 2019, to impose President’s Rule in the Union territory of Jammu and Kashmir.

According to the proclamation issued by then President Ram Nath Kovind, the President of India assumed “all functions of the Government of Union territory of Jammu and Kashmir and all powers vested in or exercisable by the Lieutenant Governor of the Union territory of Jammu and Kashmir.”

The proclamation declared that “the powers of the Legislature or Legislative Assembly of the Union territory of Jammu and Kashmir shall be exercisable by or under the authority of Parliament.”

The proclamation also suspended the operation of Section 55 of the Jammu and Kashmir Reorganisation Act, 2019 – which made it mandatory for the Lieutenant Governor to frame business rules “on the advice of the Council of Ministers.”

According to a senior lawyer, who requested not to be identified, these amendments are not in sync with the law-making expected in a democracy.

“Firstly, the business rules were notified by the Centre without the advice of the council of ministers. Now, the Union government is even making amendments in those rules without the consultation of elected representatives. How is that fair?” explained the senior lawyer.

He added: “If I have to be conservative in my assessment, I would say this is against the spirit of constitutional law and democracy.”

Criticism from the political class

The amendments have also brought to surface the diminished and limited role the future elected Chief Minister of Jammu and Kashmir will have in the Union territory set-up.

Former Jammu and Kashmir chief minister and National Conference Vice-President Omar Abdullah said “…the people of J&K deserve better than powerless, rubber stamp CM who will have to beg the LG to get his/her peon appointed.”

Another former chief minister and chief of Peoples Democratic Party Mehbooba Mufti said the amendments raised a fundamental question about the way New Delhi thinks of the people of Jammu and Kashmir.

“…you have brought such an ordinance by which you have snatched everything from the most powerful assembly of Jammu and Kashmir in the entire country. Today, you want to convert it into a municipality,” Mufti said in a video statement on July 13.

She also alleged that the changes were driven by the fears of New Delhi that the Bharatiya Janata Party is not in any position to win any elections in Jammu and Kashmir. “If any government is formed in Jammu and Kashmir tomorrow, it will not be formed by BJP at all,” she said. “And [so] that government will not have any authority, will not be able to transfer any of its employees, against whom to take action, you want to snatch that right from them and give it to the Chief Secretary and LG. That LG who comes from outside, who does not know anything about this place,” she said.

Even the parties seen to be close to New Delhi have been critical of the new amendments.

“This new decision aims at making the state hollow in which no powers will be left for an elected government... The people of Jammu and Kashmir do not support this,” said Apni Party chief Altaf Bukhari during a press conference in Srinagar on July 13.

Peoples Conference chairman Sajad Lone also lambasted New Delhi, calling the amendments part of a “continued systematic disempowerment” of people of Jammu and Kashmir.

While the political parties have reacted strongly to the amendments, the notification has hinted that the long-delayed Assembly elections in the Union territory may be held as per the Supreme Court’s deadline of September.

“It also means that New Delhi is not thinking about restoring statehood to Jammu and Kashmir anytime soon,” said the senior lawyer.