Rajya Sabha clears Bill to reduce J&K to a U.T. like Puducherry

The Rajya Sabha passed on Monday the Jammu and Kashmir Reorganisation Bill, 2019 with 125 votes in favour and 61 against the motion, hours after it was introduced by the Government.

The Bill, which was introduced in the morning by Home Minister Amit Shah, proposes to bifurcate the state of Jammu & Kashmir into two new Union Territories (UT): Ladakh without an Assembly and Jammu & Kashmir with an Assembly.

While the former would be administered over directly by a Lieutenant Governor, the latter would have an elected Assembly with a Lieutenant Governor.

The 58-page Bill, which was accessed by National Herald, proposes that the UT of Ladakh would comprise of the districts of Kargil and Leh, while the rest of the territory comprising the erstwhile State of Jammu and Kashmir would be included in the new UT of Jammu and Kashmir.

Significantly, Clause 13 of the Bill mentions that from the day the new UT of Jammu and Kashmir comes into being, “the provisions contained in article 239A, which are applicable to ‘Union territory of Puducherry’, shall also apply to the ‘Union territory of Jammu and Kashmir’.

As per Clause 14 of the Bill, “total number of seats in the Legislative Assembly of the Union territory of Jammu and Kashmir to be filled by persons chosen by direct election shall be 107”.

It goes on to specify in sub-section 3 (a) of the same Clause that “…until the area of the Union territory of Jammu and Kashmir under the occupation of Pakistan ceases to be so occupied and the people residing in that area elect their representatives, 24 seats in the Legislative Assembly of Union territory of Jammu and Kashmir shall remain vacant”.

The powers of LG of Puducherry

The Government of Union Territories Act, 1963 provides for a Legislative Assembly of Pondicherry (as Puducherry was earlier called), with a Council of Ministers to govern the ‘Union Territory of Pondicherry’. The same Act says that the UT will be administered by the President of India through an Administrator (LG).

Section 44 of the Act, which deals with the Council of Ministers and its working, says the Council of Ministers headed by a Chief Minister will “aid and advise the Administrator in the exercise of his functions in relation to matters with respect to which the Legislative Assembly of the Union Territory has power to make laws”.

The same clause also allows the LG to “act in his discretion” in the matter of law-making, even though the Council of Ministers has the task of aiding and advising him. In case of a difference of opinion between the LG and his Ministers on any matter, the Administrator is bound to refer it to the President for a decision and act according to the decision given by the President. However, the Administrator can also claim that the matter is urgent, and take immediate action as he deems necessary.

Under Section 22 of the Act, prior sanction of the Administrator is required for certain legislative proposals. These include Bills or amendments that the Council of Ministers intends to move in the Legislative Assembly, and which deal with the “constitution and organisation of the court of the Judicial Commissioner”, and “jurisdiction and powers of the court of the Judicial Commissioner with respect to any of the matters in the State List or the Concurrent List”.

Section 23 of the Act also makes it obligatory on the part of the UT government to seek the “recommendation” of the LG before moving a Bill or an amendment to provide for “the imposition, abolition, remission, alteration or regulation of any tax”, “the amendment of the law with respect to any financial obligations undertaken or to be undertaken”, and anything that has to do with the Consolidated Fund of the UT.

Once the Assembly has passed a Bill, the LG can either grant or withhold his assent; or reserve it for the consideration of the President. He can also send it back to the Assembly for reconsideration.

The manner in which the LG functions vis-à-vis the elected government (Council of Ministers) is also spelt out in the Rules of Business of the Government of Pondicherry, 1963, issued on June 22, 1963.

Under Rule 47, which deals with persons serving in the UT government, the Administrator exercises powers regulating the conditions of service of such persons in consultation with the Chief Minister. In case the LG has a difference of opinion with the Chief Minister, he can refer the matter to the central government for the decision of the President.

The ‘Puducherry model’ is considerably different from the powers of LG of Delhi, who has ‘Executive Functions’ that allow him to exercise his powers in matters connected to public order, police and land “in consultation with the Chief Minister, if it is so provided under any order issued by the President under Article 239 of the Constitution”. Simply put, the LG of Delhi enjoys greater powers than the LG of Puducherry.

While the LG of Delhi is also guided by the Government of National Capital Territory of Delhi Act, 1991, and the Transaction of Business of the Government of National Capital Territory of Delhi Rules, 1993, the LG of Puducherry is guided mostly by the Government of Union Territories Act, 1963.

Articles 239 and 239AA of the Constitution, as well as the Government of National Capital Territory of Delhi Act, 1991, clearly underline that Delhi is a UT, where the Centre, whose eyes and ears are the LG, has a much more prominent role than in Puducherry.

Under the constitutional scheme, the Delhi Assembly has the power to legislate on all subjects except law and order and land. However, the Puducherry Assembly can legislate on any issue under the Concurrent and State Lists. However, if the law is in conflict with a law passed by Parliament, the law passed by Parliament prevails.