Srinagar: The Lieutenant Governor’s (LG’s) powers to restrict questions in the Jammu and Kashmir Assembly on matters where he has to act independently could pose a challenge to the scrutiny of human rights issues in the Union Territory.
With the LG vested with powers to prohibit questions on reserved subjects, the lawmakers of the Union Territory may not be able to ask questions in the House about law and order and police actions to scrutinise the issues which earlier dominated discussions in the assembly of the erstwhile state of Jammu and Kashmir.
LG’s powers to prohibit questions on reserved subjects
As per clause(c) of the proviso to sub-section (1) of Section 46 of Jammu & Kashmir Reorganisation Act 2019, the Lieutenant Governor shall, after consultation with the Speaker of the Legislative Assembly, make rules for prohibiting the discussion of, or the asking of questions on, any matter which affects the discharge of the functions of the Lieutenant Governor in so far as he is required by this Act to act in his discretion.
“The LG can prevent questions on the matters in which he has to act in his discretion. The LG will decide whether questions on these matters should be asked on the floor of the House,” P.D.T. Achray, former Lok Sabha General Secretary and expert on parliamentary procedures, told The Wire.
As per section 53 of the J&K Reorganisation Act, the LG has powers to act in his discretion in a matter which falls outside the purview of the powers conferred to the Legislative Assembly; or in which he is required by or under any law to act in his discretion or to exercise any judicial functions; or related to All India Services (AIS) and Anti Corruption Bureau (ACB).
The subjects of public order and police – entries 1 and 2 in the State List – fall outside the purview of the jurisdiction of the Assembly, as per section 32 of the Reorganisation Act, which prohibits it from making laws on these matters.
So, it essentially means public order, police, AIS and ACB are reserved subjects in Jammu and Kashmir.
Why accountability on human rights could be affected
The scrutiny over human rights issues on the floor of the Assembly could be affected due to the legal provisions empowering LG to restrict questions on “public order” and “police” – the subjects which mainly deal with rights issues.
“If the LG frames rules as per clause(c) of the proviso to sub-section (1) of Section 46, we cannot ask questions on law and order matters and police actions,” Muzaffar Iqbal Khan, who is one of the members of 9-member House panel constituted by the Speaker to frame Rules of Procedure and Conduct of Business in the Assembly, told The Wire.
Khan, who is also a former judge, said the LG can make Rules, in consultation with the Speaker, to conduct business in the Assembly on matters like law and order, police and prohibit questions and discussions on them.
“The actions of police cannot be questioned in the Assembly for the reason that the cabinet has no control over it,” he said, adding that this would affect accountability over these issues.
BJP MLA Ranbir Singh Pathania, who is also part of the Rules Committee, said the MLAs cannot ask questions on the subjects which are not directly under administrative control of the J & K government.
He added they will frame the Rules of Procedure which are more comprehensive and in line with ground realities.
Speaker of J&K Legislative Assembly, Abdul Rahim Rather told The Wire that LG can prohibit questions only on the matters in which he has to act in his discretion.
“He has to consult the Speaker on what has to be included or excluded in business of the House regarding the matters where has to act in his discretion,” he said.
He said the rules of procedure and conduct of business in the House have to be framed by the assembly. “The Reorganisation Act empowers the Assembly to do so,” said Rather.
After the reorganisation of Jammu and Kashmir, public order and police matters are administered by New Delhi and LG.
Before August 5, 2019 and the reading down of Article 370, the Assembly had become a vital platform to hold government accountable over killings and cases of enforced disappearances and torture.
The Home Department, whose minister in-charge usually happened to be chief minister, would face numerous questions in almost every session on rights violations by forces.
Similarities with other UTs
Similar legal provisions also exist in the laws governing other Union Territories with Assembly.
The Government of Union Territories Act, 1963 and The Government of National Capital Territory Of Delhi Act, 1991, dealing with Puducherry and Delhi, respectively, also empower their LGs to prohibit asking of questions on these matters.
In 2018, the Union Law Ministry advised the Delhi LG’s office to communicate to the Speaker that he should not admit questions related to reserved subjects such as public order, police, services and land.
The move had triggered widespread protest from the Speaker of Delhi and MLAs.
