As a policy analyst, I have noticed a consistent trend: directives and official notifications from the Union ministry of home affairs (MHA)concerning the former state of Jammu and Kashmir often trigger political responses that overlook a comprehensive analysis of their underlying motives and objectives.
The recent political discourse surrounding the MHA’s latest notification titled ‘Transaction of Business of the Government of Union Territory of Jammu and Kashmir (Second Amendment) Rules’, dated July 12, which gives more powers to the lieutenant governor and chief secretary, has failed to recognise a critical nuance.
These amendments to the business rules are not isolated but are a continuation of the existing framework established in 2019. It is imperative to comprehend that with J&K’s transition to a Union territory, the lieutenant governor’s powers were significantly augmented by the Reorganisation Act of 2019 and the business rules promulgated that same year were similar to those of other Union territories. Therefore, it is essential to move beyond superficial reactions and engage in a comprehensive understanding of the strategic objectives behind these latest amendments, which further consolidate the Union government’s control over J&K.
The recent amendments necessitate a contemplation on whether they further entrench Union government control or merely continue the trajectory set by the bifurcation of Jammu and Kashmir into two Union territories under the Reorganisation Act of 2019 and the Transaction of Business of the Government of Union Territory of Jammu and Kashmir Rules, 2019.
This notification forms part of a series of amendments to the existing business rules and policy framework in J&K over the past five years, including the Transaction of Business Rules, 2019, and Domicile laws. The Union government emphasises its strategy to maintain stringent oversight and control over critical administrative functions in the region.
This raises a significant question: if statehood is an inalienable right of the people of J&K and that ultimate power should rest with its people, why is J&K moving towards an administrative structure where the powers of the lieutenant governor and chief secretary are expanded, and the Union government retains the authority to amend or repeal any law made by the legislative assembly?
The future chief minister and council of ministers in Jammu and Kashmir will be powerless in matters where LG has discretionary powers, rendering them unable to fulfil promises made to the people such as the abolition of property tax. Those acquainted with the governance model in Delhi understand that Union territories in India operate with limited legislative power. But J&K, with its unique geographical and administrative complexities, cannot be equated to Delhi or other Union territories. Attempting to govern it solely through a Union territory framework risks exacerbating these intricacies.
The restoration of statehood should not be postponed under the pretext that external influences beyond India’s borders are preventing favourable conditions. Historically, Jammu and Kashmir had always been a state prior to 2019 and one of the largest princely states prior to 1947. Thus it stands distinct from other Union territories, particularly those with legislative assemblies. It was operated under a federal framework, maintaining its Public Service Commissions (PSCs) and other autonomous bodies even after its reorganisation into a Union territory.
There is a growing discontent among the people of J&K towards centralised governance, which stifles local aspirations and fails to address regional complexities adequately.
As demonstrated by the recurrent protests against toll plazas, property taxation, excise policies, and domicile legislation. Consequently, instead of seeking incremental adjustments, political parties in J&K are united in their demand for the restoration of statehood, as indicated by statements from former chief minister Omar Abdullah.
He emphasised the necessity of a clear commitment and timeline for the full reinstatement of J&K’s statehood as a prerequisite for upcoming elections. He expressed concern over the prospect of a chief minister reduced to a mere figurehead, compelled to seek the lieutenant governor’s approval even for routine administrative appointments.
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Unpacking the latest amendments
A notable revision is the addition of sub-rule 2 in the Transaction of Business of the Government of Union Territory of Jammu and Kashmir (Second Amendment) Rules, 2024, which mandates any proposal requiring the concurrence of the finance department related to ‘Police’, ‘Public Order’, ‘All India Service’, and ‘Anti-Corruption Bureau’ must receive the LG’s approval through the chief secretary. This change underscores the enhanced discretionary power of the LG in these critical sectors.
Furthermore, the appointment of the advocate general, previously under the governor’s purview when J&K had its constitution, will now be processed through the chief secretary and chief minister, subject to the LG’s approval. Additionally, proposals concerning the transfer and posting of cadre officers will now be processed through the general administration department (GAD) and the chief secretary, with the final decision resting with the LG.
As these changes unfold, it will be crucial to monitor their impact on the governance and political landscape of Jammu and Kashmir, particularly in the context of the forthcoming assembly elections.
Break from the past?
The recent notification issued on July 12 by MHA concerning the Transaction of Business of the Government of Union Territory of Jammu and Kashmir (Second Amendment) Rules, 2024 has sparked considerable debate. However, are these rules truly unprecedented, or are they merely a continuation of the previously established framework outlined in the Jammu and Kashmir Reorganisation Act, 2019, and the accompanying business rules of 2019 and 2020?
This notification must be understood within the broader context of how Union territories (UTs) in India, with or without legislative assemblies, are typically governed. Historically, a recurring power struggle exists between the lieutenant governor (LG) and the chief minister, where the LG, an extension of the MHA, operates under the aegis of Union government representatives who remain unaccountable to the legislature and, by extension, the people.
Armed forces personnel check voter IDs before allowing voters to enter a polling station at Ganeshpora, a village in Anantnag district. Photo: Umar Farooq
To dispel any misunderstandings, the government clarified, “The notification dated July 12, 2024, concerning the transaction of business rules is not an amendment to the Jammu and Kashmir Reorganisation Act, 2019. It is a simple amendment to the transaction rules, issued to eliminate any ambiguity. This notification does not, in any sense, alter the balance of powers as enshrined in the Jammu and Kashmir Reorganisation Act, 2019. This Act, passed by the Parliament of India in August 2019, has been upheld by the Hon’ble Supreme Court of India.”
The government’s assertion of a balanced power structure warrants scrutiny against the provisions of the Reorganisation Act and subsequent business rules, spanning from 2019 to 2024. Critics often overlook that the provisions to empower the LG and chief secretary were embedded within the 2019 rules, reiterated through subsequent amendments.
For instance, Chapter IV of the Disposal of Business Relating to the Executive Functions of the Lieutenant Governor outlines critical provisions under Clause 43 of the Transaction of Business of the Government of Union Territory of Jammu and Kashmir Rules, 2019. This clause specifies that the lieutenant governor exercises discretionary executive functions concerning ‘public order’, ‘police’, ‘All India Services’, and the ‘Anti Corruption Bureau’ as per the Act. Additionally, matters related to public order, police, and IPS officers must be submitted to the lieutenant governor by the principal secretary, home, through the chief secretary.
Furthermore, Clause 7 of the same rules stipulates that proposals falling within the lieutenant governor’s discretionary powers, such as financial bills (Clause 36, Reorganisation Act), or those requiring the finance department’s concurrence under the amended rules cannot be tabled before the council of ministers for deliberation.
According to Clause 5 of the 2019 rules, the lieutenant governor has the authority to requisition papers related to any proposal or matter from any department, which must be complied with by the respective department secretary. Conversely, a minister may request papers, excluding those concerning matters falling under the lieutenant governor’s discretionary jurisdiction, for informational purposes.
The Transaction of Business of the Government of Union Territory of Jammu and Kashmir Rules, 2019 herald a significant transformation in the governance framework of J&K, notably reducing the authority of the legislative assembly and chief minister compared to the erstwhile statehood status. Under these rules, governance in J&K has become more centralised, amplifying the role of the lieutenant governor at the expense of legislative and executive autonomy previously enjoyed by the chief minister and legislative assembly.
The LG now wields augmented powers in crucial areas such as policy formulation, financial decision-making, and administrative appointments, often necessitating approval routed through the chief secretary. This marks a departure from the previous statehood model where the governor held a largely ceremonial position, and the chief minister and legislative assembly exercised significant legislative and executive functions independently.
Also, in the new governance structure of J&K, the chief minister oversees a legislative assembly comprising 90 seats, with only 10% of the elected members, translating to nine ministers, forming the council of ministers.
The roles and responsibilities of these nine ministers are rigorously outlined: all schedules, agendas, and meeting details of the council of ministers must be submitted to the representative of the lieutenant governor’s office (principal secretary) at least two days in advance. Rule 13, Clause 13 mandates that once the chief minister approves the meeting agenda, copies are circulated to the lieutenant governor, chief minister, and other ministers well ahead of the meeting date. Additionally, the secretary from the LG’s office is mandated to attend all cabinet meetings, ensuring oversight and coordination.
The recent introduction of new business rules indicates that the Union government has no immediate plans to restore J&K’s statehood. The Jammu and Kashmir Reorganisation Act of 2019 initially bifurcated the state into two Union territories, significantly curtailing its autonomy. Subsequent amendments have further consolidated control under the Union government, suggesting that the path to regaining statehood may be prolonged and uncertain.
In the landmark Supreme Court judgment of 2019, Government of Delhi vs LG, it was established that the lieutenant governor must act on the aid and advice of the chief minister and the council of ministers, and such advice is binding. This ruling underscored the principle that appointed representatives cannot override the will of the people.
Given these situations, the people of Jammu & Kashmir have been eagerly anticipating assembly elections as a means to express their grievances through elected local representatives. However, the new governance framework has significantly centralised decision-making authority in the hands of the LG of J&K, further consolidating power. This shift has fostered skepticism among the populace regarding whether an elected government would have the autonomy to effect substantial change. In navigating the future governance of J&K, it is imperative to heed these concerns and aspirations, recognising the region’s unique socio-political landscape and the aspirations of its people.
Kanwal Singh is a policy analyst from Jammu and Kashmir.
