Amendments to J&K Act bolster LG’s role
The MHA’s amendments have vested the LG of J&K with extensive powers over key administrative and legal matters.
The amendments by MHA to the rules under the Kashmir Reorganisation Act, 2019, have not only delineated but also enhanced the powers of the LG of J&K. This move is particularly noteworthy when compared to the ongoing battles over the powers of the LG in Delhi and comes at a crucial time, nearing the Supreme Court’s September 30, 2024, deadline to hold elections in J&K.
While the Delhi LG often finds their authority challenged by the elected government, the MHA’s clear delineation of the LG’s powers in J&K stands in stark contrast, showcasing a deliberate effort to centralise authority and streamline decision-making in the UT.
The MHA’s amendments have vested the LG of J&K with extensive powers over key administrative and legal matters. These include decisions on police, all-India services officers such as the IAS and IPS, and the granting of prosecution sanctions.
To be sure, clause 43 of the Transaction of Business of Govt of Union territory of Jammu & Kashmir Rules, 2019, stated that LG shall in respect of matters connected with public order, police, all India services and anti-corruption bureau exercise his executive functions in his discretion under the Act.
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The amendments to the 2019 rules now include a new provision making it clear that the chief secretary of the UT shall be obligated to place all such matters before LG for a final decision.
“No proposal which requires previous concurrence of the Finance Department with regard to ‘Police’, ‘Public Order’, ‘All India Service’ and ‘Anti Corruption Bureau’ to exercise the discretion of the Lieutenant Governor under the Act shall be concurred or rejected unless it has been placed before the Lieutenant Governor through the Chief Secretary,” stated the new amendment to the rule.
Under the amendments, LG is the authority to decide on the appointment of the advocate-general and other law officers, besides grant or refusal of prosecution sanction or filing of appeal.
Section 79 of the 2019 Act mentioned that LG “shall appoint a person who is qualified to be appointed a judge of the high court, to be advocate-general” for the UT of J&K.
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In line with the substantive provision, the amendment to Rule 42 states: “In the principal rules, after rule 42, the following rules shall be inserted, namely:― ‘42A. Department of Law, Justice and Parliamentary Affairs shall submit the proposal for appointment of Advocate-General and other Law Officers to assist the Advocate-General in the court proceedings, for approval of the Lieutenant Governor through the Chief Secretary and the Chief Minister.”
The 2019 Act or the rules, however, did not mention anything on LG having the authority on taking a call whether to file an appeal in a case even as the latest amendment empowers LG to do so.
Clause 42 under the 2019 rules authorised the department of law, justice and parliamentary affairs to decide on all legal matters, including proposals for legislation and withdrawal or institution of prosecution.
Rule 42B has been inserted to state that “any proposal regarding grant or refusal of prosecution sanction or filing of appeal shall be placed before the Lieutenant Governor through the Chief Secretary by the Department of Law, Justice and Parliamentary Affairs.”
A new proviso to Rule 43 added that LG shall also be the authority in respect of matters connected with Prisons, Directorate of Prosecution and Forensic Science Laboratory – a provision which was absent in the 2019 rules.
These changes ensure that LG holds substantial control over law enforcement and administrative appointments. The amendments requiring that any proposals regarding prosecution sanctions or appeals be placed before LG by the UT further consolidates LG’s role as the primary decision-maker in these domains.
Most of these issues have been a persistent bone of contention in Delhi. The tug of war between LG and the elected government in Delhi involves the issues relating to control over bureaucrats as well as appointing lawyers to represent the UT before the courts in the Capital. The Supreme Court has repeatedly intervened to delineate the boundaries of LG’s authority, emphasising the importance of the elected government’s role in decision-making. Despite these rulings, conflicts over the LG’s powers in matters of administration, policing and appointments continue to surface, reflecting a more contested and negotiated balance of power.
At the behest of the Delhi government, the Supreme Court is currently seized of issues relating to the control of bureaucrats and appointing lawyers and special public prosecutors by LG to represent the national capital. Even as a 2019 judgment by the Supreme Court decided the issue pertaining to the anti-corruption bureau’s control, vesting LG and the Centre with such authority, the power struggles in Delhi over a raft of other administrative issues continue, inviting the orders of the constitutional courts to balance the scale of power between LG and the elected government.
By empowering the LG of J&K with more definitive and expansive powers, the Centre has apparently promoted a centralised approach to decision-making in J&K, particularly in matters concerning the police, public order and all-India services. In Delhi, however, LG’s decisions are frequently subject to the concurrence and cooperation of the elected government, creating a more collaborative but often contentious governance model.
The Centre, in J&K, has however clearly outlined LG’s authority, seeking to establish a more centralised and controlled governance framework, likely in response to the unique administrative and security needs of the UT.