As J&K gets its first Union territory government, a beginner's guide to distinguish rubber stamps from blood and iron ones.
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IN 2019, Omar Abdullah, the blue-eyed scion of a Kashmiri family wooed by India for three generations, was put under house arrest as India ended the special autonomous status of Jammu and Kashmir (J&K) as per a sovereign agreement between its Dogra king and the Indian Union.
Omar's Public Safety Act, 1978 dossier mentioned, "The capacity of the subject to influence people for any cause can be gauged from the fact that he was able to convince his electorate to come out and vote in huge numbers even during the peak of militancy and poll boycotts."
This came as a sweet, multi-layered irony to Kashmiris, who had seen Omar preside over the killings of hundreds of young protestors and the booking of thousands under the same Public Safety Act during his tenure as the chief minister of the state between 2009 and 2014.
While under house arrest, Omar grew his beard and vowed never to contest elections till the statehood of J&K was restored.
Now, on the strength of winning 42 seats in the 90-seat Union territory assembly, he is back with a bang as the likely first chief minister of the Union territory of J&K— or a glorified sarpanch, as some legal experts put it.
Before 2019, the Indian Parliament could legislate on those matters which were declared by the President of India to correspond to matters specified in the Instrument of Accession governing the accession of J&K to India as the matters with respect to which the Indian Parliament may make laws for J&K, but only in consultation with the government of J&K.
“While under house arrest, Omar grew his beard and vowed never to contest elections till the statehood of J&K is restored.
The Indian Parliament could also legislate with regard to other items in the Union and Concurrent Lists of the Seventh Schedule of the Indian Constitution that had been specified through an Order by the President of India in concurrence with the government of the state. Before 2019, this route was used to extend 94 of the 97 items in the Union List and 26 of the 47 items in the Concurrent List to J&K.
These extensions were contested in the small but powerful pro-India political and legal ecosystem in J&K, as they were seen as an 'erosion' of J&K's autonomy.
Of course, like Indian states, J&K retained full powers of legislation over the State List. The state had its own Constitution. Besides, Article 35A of the Indian Constitution ensured that the land and jobs in the state were secured for its 'state subjects'.
In 2019, in one fell swoop, the autonomy of J&K was revoked, subjecting it to the full Indian Constitution. Secondly, it was split into two Union territories—J&K, and Ladakh, the former with a legislative assembly and the latter without one.
The legislative assemblies of Union territories in India have vastly truncated powers, even compared to the legislative assemblies of states. Article 239 of the Constitution of India, which deals with the administration of Union territories, states that "every Union territory shall be administered by the President, acting, to such extent as he thinks fit, through an administrator."
As per the Jammu and Kashmir Reorganisation Act, 2019, the state assembly can make laws on matters in the State List except "public order" and "police" (Items 1 and 2 in the State List).
The joke doing the rounds in Kashmir is that this severely curtails the power of the new chief minister and his cabinet to preside over more repressive policing action against the people.
Such jokes aside, the real reason for police and public order being expressly kept overside the purview of the elected government of the Union territory is probably connected to the importance of these two functions in a restive region where most people have historically favoured complete Independence or a merger with Pakistan.
There have been episodes of unrest within the police force in Kashmir in the past, most notably in 1993. In 2019, there were reports that the state armed police personnel were asked to hand over their weapons on the eve of August 5, because there were apprehensions that they might revolt. So keeping police and public order of J&K safely embosomed suits New Delhi.
In addition, the control J&K's assembly exercised over the Union List through the requirement of 'concurrence' and 'consultation' is gone. The Concurrent List has also been taken away from it, so far as legislative powers are concerned.
“These extensions were contested in the small but powerful pro-India political and legal ecosystem in J&K, as they were seen as an 'erosion' of J&K's autonomy.
Even with regard to the State List sans public order and police, Section 32(2) of the Reorganisation Act, 2019 states, "Nothing in sub-section(1) shall derogate from the powers conferred on Parliament by the Constitution to make laws with respect to any matter for the Union territory of Jammu and Kashmir or any part thereof."
This means the Parliament of India will have a final say over any law passed by the legislative assembly of J&K. Section 35 of the Reorganisation Act, 2019 says that if any law passed by the J&K assembly is repugnant to a law passed by the Indian Parliament before and after it, the law passed by the Parliament shall prevail.
Subsequently, the Union ministry of home affairs notified new Transaction of Business Rules for the administration of the Union territory of Jammu and Kashmir on August 28, 2020. These rules specify the functions of the lieutenant governor (LG) and the council of ministers and operationalise the control of the LG.
According to the Rules, the functions of "police, public order, All India Services, and anti-corruption" will fall under the purview of the lieutenant governor, implying that the chief minister and the council of ministers will have no role in these important areas.
The notified rules specify that any matter affecting the peace and tranquillity of the Union territory or the interest of any minority community, the Scheduled Castes, the Scheduled Tribes and the Backward Classes shall be "submitted to the lieutenant governor through the chief secretary, under intimation to the chief minister, before issuing any Orders".
The council of ministers, headed by the chief minister, will decide upon service matters of non-All India Services officers, proposals to impose new taxes, land revenue, sale, grant, or lease of government properties, reconstituting departments or offices, and draft laws, as per the new rules.
In the event of a difference of opinion between the council of ministers and the lieutenant governor, where no resolution is found for a month, the lieutenant governor's decision shall be deemed final.
Also read: Justice Kaul calls for TRC in Kashmir, but look at the fate of those whose work can enable it
The transaction of business rules also states that there will be 39 departments in the government of the Union Territory. Furthermore, all communications received from the Centre, including those from the prime minister and other ministers, shall be submitted to the chief secretary, the minister in charge of the matter under consideration, the chief minister, and the lieutenant governor— unless such communication is routine or unimportant.
“The joke doing the rounds in Kashmir is that this severely curtails the power of the new chief minister and his cabinet to preside over more repressive policing action against the people.
It also states that in any matter in respect of which no specific provision has been made in these rules, the LG shall consult the Union government before exercising his powers or discharging his functions in respect of that matter. Pertinent to mention that before 2019, the residuary legislative powers were vested with the state assembly of J&K and now with the Indian Parliament.
Annexure 'B' to Government Order No. 811-JK(GAD) of 2020 outlines a detailed list of 42 matters that must be submitted to the LG of J&K for approval through the chief secretary. These matters cover a broad range of administrative, policy, and legal matters.
The lieutenant governor's influence extends over the financial affairs of the Union territory as well. According to Section 67 of the Reorganisation Act, the Union territory will have a 'Consolidated Fund' which comprises all revenue, grants, and loans received from the Union territory administration and the Union government.
However, the management of this fund and any withdrawals from it "shall be regulated by Rules made by the LG", as stated in the section.
Furthermore, the legislative assembly will be dependent on the LG to pass any law or amendment concerning financial matters. Section 36 of the Reorganisation Act specifies that any Bill or amendment related to financial issues, such as taxes and expenditures of the Union territory, cannot be presented in the legislative assembly "except on the recommendation of the LG".
The Translation of Business Rules were revised on July 12, 2024. According to the amendments, any proposal concerning the appointment of an advocate-general, law officers, as well as matters related to the grant or refusal of prosecution sanction, or the filing of an appeal, must first be submitted to the LG for consideration.
As Yavar Ramazan, a lawyer practising at the Srinagar High Court, put it, "The new assembly will function like a glorified municipality— handling minor tasks while the real power remains with the lieutenant governor. It is governance by bureaucracy rather than elected representatives."
Through a 2021 amendment to the Reorganisation Act, 2019, the J&K cadre of civil officials was merged with the Arunachal Pradesh, Goa, Mizoram and Union Territory (AGMUT) cadre, which means local bureaucracy in J&K is now drawn from a larger non-local pool.
“Yavar Ramazan, a lawyer practising at the Srinagar High Court, said, "The new assembly will function like a glorified municipality— handling minor tasks while the real power remains with the lieutenant governor."
Says Yavar, "When an elected government is required to route every legislative measure through a restrictive process, where approval is neither guaranteed nor consistent, it severely hampers the ability of political parties to implement the objectives outlined in their manifestos. This bottleneck undermines the very essence of representative governance."
In a recent interview, Dr Sheikh Showkat Hussain, a well-known political analyst and prominent scholar of human rights and international law, stated that the new chief minister of J&K will be like an "elevated" mayor of a municipal corporation who will not enjoy any real powers.
J&K was akin to a 'State within a State'— a 'state+'— a fact cognisant of its unique history and chequered politics. The events of August 5, 2019 took it down several notches. Statehood, at best, would be able to reclaim only a couple of those notches.
The substantial powers protected under Section 370, which helped the state fly its flag proudly and at parity with the Indian flag, cannot be returned through the restoration of statehood.
Restoration of statehood will mean J&K will be at par with any state in India. Even if protections over land and jobs are afforded to the permanent residents of the state similar to some Indian states, for example, Himachal Pradesh, it will still not be equivalent to the protection afforded under Article 35A.
“The substantial powers protected under Section 370, which helped the state fly its flag proudly and at parity with the Indian flag, cannot be returned through the restoration of statehood.
Before August 5, 2019, the chief ministers, ministers and members of the legislative assemblies in J&K had substantial power, but they always used it to remain in the good books of the powers that be in New Delhi at the cost of the welfare and interests— and the very lives— of the people of J&K. So New Delhi wielded de facto complete power.
Now its absolute power has become de jure as well. A clean-shaven Omar Abdullah can resume the Union territoralised circus.