Elections In J&K

ELECTIONS IN J&K

The first phase of polling for the Jammu and Kashmir Assembly is underway. This election marks a significant change, being the first since the abrogation of Article 370 in 2019, which altered the constitutional framework of Jammu and Kashmir, changing its status from a state to a Union Territory (UT).

CONTEXT OF CONSTITUTIONAL CHANGES

• The Jammu and Kashmir Reorganisation Act, 2019 led to the creation of two UTs:
  • Union Territory of Ladakh: Without a legislature.
  • Union Territory of Jammu and Kashmir: With a legislature.
• Amendments were made to the First Schedule of the Constitution and Article 3, which governs the formation of new states and territorial alterations.

Article 239 Overview

• Article 239 states that “every union territory shall be administered by the President, acting through an administrator.” This shows the significant role of the central government in the governance of UTs.

Legislative Framework for Jammu and Kashmir Assembly

• Section 13 of the 2019 Act specifies that Article 239A (which allows for the creation of local legislatures for certain UTs) applies to Jammu and Kashmir.
• The Assembly of Jammu and Kashmir will operate under a distinct set of powers compared to other states due to the unique constitutional status derived from the Reorganisation Act.

COMPARISON WITH DELHI & PUDUCHERRY

• Delhi, another UT with a legislature, is governed by Article 239AA, which confers unique powers but has led to conflicts between the Lieutenant Governor (LG) and the elected government.
  • In Delhi’s case, 3 subjects — land, public order, and police — are reserved for the LG.
  • However, control over ‘services’, or the bureaucracy, has been a bone of contention between the state and the Centre.
  • After the SC clarified that the LG cannot exercise independent discretion on subjects other than the three reserved subjects, Centre enacted legislation in 2023, bringing services under the control of the LG.
    • This too, is now under challenge before the court.
• In contrast, Jammu and Kashmir’s legislative framework grants significant control to the LG, particularly in crucial areas.

POWERS OF THE J&K LEGISLATIVE ASSEMBLY

• As per the 1947 Instrument of Accession, J&K had acceded to India in respect of only defence, foreign affairs, and communications.
• Under Article 370 as it stood before the abrogation, Parliament had limited legislative powers with respect to J&K.
• Over the years, however, the Centre’s lawmaking power was extended to cover several other subjects in the Union List (List I of the Seventh Schedule of the Constitution).
• As per First, Section 32 of the Act, The Assembly may legislate on subjects in the State List, excluding:
  • Public Order
  • Police
• For subjects in the Concurrent List, the Assembly’s legislative power is limited.
• Section 36 of the 2019 Act imposes restrictions on the introduction of financial Bills, requiring the LG’s recommendation for any Bill involving financial obligations, limiting the Assembly’s financial autonomy.

FUNCTIONS & POWERS OF LIEUTENANT GOVERNOR

Legislative Assembly Management

• Summoning and Proroguing:
  • The Lieutenant Governor (LG) has the authority to summon the Legislative Assembly and determine the time and place for meetings. Notably, there must be no more than six months between sessions.
• The LG can also prorogue (discontinue a session) or dissolve the Legislative Assembly.

Addressing the Assembly

• At the start of each new legislative session after a general election, and at the beginning of each year, the LG addresses the Assembly, outlining the reasons for its convening.

Communication with the Assembly

• The LG can send messages to the Assembly regarding pending bills or other matters. The Assembly is required to consider these messages promptly.

Legislative Provisions

• Introduction of Bills:
  • Bills concerning taxes, financial obligations, or any expenditure from the Consolidated Fund require the LG’s recommendation before they can be introduced in the Assembly.
  • A Bill cannot pass if it incurs expenditure from the Consolidated Fund unless recommended by the LG.
• Assent to Bills:
  • Once a Bill is passed by the Assembly, it must be presented to the LG, who can either assent, withhold assent, or reserve it for presidential consideration. The LG can return non-money bills for reconsideration, suggesting amendments.
• Presidential Consideration:
  • Bills reserved for the President must receive either assent or be returned for reconsideration. If returned, the Assembly must act within six months.

Oaths of Office

• All members of the Legislative Assembly must take an oath or affirmation before the LG or an appointed official before assuming their seats.

Financial Management

• Annual Financial Statement:
  • The LG must present an estimated financial statement to the Assembly annually, detailing both revenue and expenditure.
• Expenditure Overview:
  • The statement must distinguish between expenditure charged on the Consolidated Fund and other expenses. Certain expenditures, such as salaries for key officials, are automatically charged.
• Supplementary Expenditure:
  • If financial needs arise unexpectedly, the LG can lay additional expenditure statements before the Assembly.

Legislative Assembly Operations

• Rule-Making Authority:
  • The Assembly can make rules to regulate its procedures. The LG, in consultation with the Speaker, can also set rules to ensure timely financial business and protect LG functions from Assembly scrutiny.

Council of Ministers

• Composition and Role:
  • The Council consists of up to 10% of Assembly members, led by the Chief Minister, who advises the LG on matters within the Assembly’s legislative purview.
  • The LG has discretionary powers in specific areas and is not bound to follow the advice of the Ministers on certain matters.
• Appointment of Ministers:
  • The LG appoints the Chief Minister and other Ministers based on the Chief Minister’s advice. Ministers serve at the pleasure of the LG and must take oaths before assuming office.

Contingency Fund

• A Contingency Fund is established for unforeseen expenditures, which the LG manages. Advances from this fund require subsequent legislative approval.

Financial Accountability

• The LG must ensure the financial accounts are maintained per prescribed rules, and reports from the Comptroller and Auditor General are submitted to the Assembly.

Presidential Oversight

• The President can suspend provisions of this Act if the administration in Jammu and Kashmir cannot be effectively managed, allowing for necessary adjustments.

Advocate-General

• The LG appoints an Advocate-General qualified as a High Court judge, responsible for providing legal advice to the government and representing it in court.

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