Empowering an already powerful Council says something we need to listen to
Governor Malik is on law changing mission in Kashmir with a seemingly Clear agenda to take control of State institutions on the same pattern as followed by RSS in India. In the process he is robbing the state of legislative powers, already diminished by New-Delhi, to a large extent over a period of time, in connivance and support of the local politicians.
Within a span of barely two months since he assumed power, Governor Malik has made drastic changes in various laws, rules & procedures, otherwise the prerogative of law-makers through the legislative assembly. He has introduced a bill to make Ladakh Autonomous Hill Development Council (In short LAHDC) more powerful and practically a State within the state. Already vested with unbridled powers, the Council has been vested with more powers to impose taxes, exercise control over the employees posted in Leh region etc. etc. It may be recalled that the said Council came into existence through an act known as Ladakh Autonomous Hill development Council Act 1995 promulgated by President of India by virtue of powers bestowed on him through a law known as J&K State legislature(Delegation of powers ) Act 1992 passed in July 1992. Through this delegatory Act, the legislative powers of our State legislature were transferred to President of India which enabled him to pass the LAHDC act in May 1995.It barely needs a mention that during this whole period, the state was reeling under President’s rule and the executive as well as legislative powers vested with him.
This delegatory law stipulates only two conditions to such powers of the President to apply laws on J&K. One that he shall form a consultative committee of 15 members of Parliament (10 from Lok Sabha & 5 from Rajya Sabha) to advise him before enacting any law under the above act and two that all such laws post enactment shall be laid before both houses of Parliament for information. But when the LAHDC act was actually passed in 1995 , no such consultative committee was formed and a cryptic note at the bottom of the act reads as:
“ In view of the urgency of the matter, it is not practicable to consult the Consultative Committee of Parliament on J &K Legislation. This measure is accordingly being enacted without reference to the said Consultative Committee.”
So by one stroke of pen, a body corporate in the shape of LAHDC was brought into existence sans any discussion or consultation . By virtue of section 42(1) of the LAHDC Act, the whole Govt. Land was transferred to this council, shredding to pieces our own laws dealing with transfer & alienation of land in the State
Not stopping at LAHDC amendment bill, Malik has changed J&K Muslim Waqf Board Act to pave way for the Governor to take control of this unique Muslim institution. The amended act now provides that its chairman would be Governor of the State, if he is a Muslim failing which any of his Muslim nominee. In past seven decades, there has never been a Muslim Governor for the State nor is there any chance to have one in future. So in effect, Waqaf Board will henceforth be managed by a nominee of the Governor.
Other instances of the Governor changing laws & taking control of institutions is amendment in the constitutions of State advisory council for higher education and state skill development Mission .These amendments make the Governor as chief of these institutions in place of Chief Minster.
Be that as it may, it is necessary to have a look at the powers of State Governor to pass laws during the period, the assembly is in recess or remains in animated suspension as at present. The said power is governed by article 91 of J&K constitution which read as under:
“(l) If at any time, except when both Houses of the Legislature are in session, the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such ordinances as the circumstances appear to him to require:
Provided that the power of making an Ordinance under this section shall extend only to those matters with respect to which the Legislature has power to make laws.
(2) An Ordinance promulgated under this section shall have the same force and effect as an Act of the Legislature assented to by the *Governor but every such Ordinance :
(a) shall be laid before both the Houses of the Legislature, and shall cease to operate at the expiration of six weeks from the re-assembly of the Legislature, or if before the expiration of that period a resolution disapproving it is passed by the Legislative Assembly and agreed to by the Legislative Council, upon the resolution being agreed to by the Legislative Council, and
(b) may be withdrawn at any time by the Governor.
(3) Notwithstanding anything in this Constitution, the satisfaction of the Governor mentioned in sub-section (1) shall be final and conclusive and shall not be questioned in any Court on any ground.”
One of the essential feature of this article is that there must be some urgency which calls for immediate action by the Governor to issue an ordinance. But in all the instances cited above, hardly one finds any urgency for the Governor to intervene.
Some critics may also say that these are temporary measures which die an automatic death upon reconvening of the State legislature. But the big question is what if after the six months of governor’s rule, the State comes under president’s rule . Every body knows or must know that Presidents rule in J&K can be extended after every six months by a mere executive order as against Parliament’s sanction required for other states. The history of 1990-1996 is before us & we must learn lessons from it.
(The author is a practicing Chartered Accountant and a member of KCSDS, a civil Society advocacy group)