Executive decisions taken by the Jammu and Kashmir government during President’s rule do not require approval of the Government of India, legal experts and officials said Sunday, contrary to a commonly held perception.
The state’s Governor is authorised by the President of India at the time of the proclamation of direct rule by New Delhi to exercise full state powers.
Former Law Secretary, Muhammad Ashraf Mir told Greater Kashmir the President of India has authorised Governor Satya Pal Malik to exercise all the powers assumed by him (President).
“There is no requirement for seeking President’s nod for executive decisions taken by state government during President’s rule,” Mir said.
Speaking on condition of anonymity, a top official in the state’s Law Department said the President has empowered the Governor to use all executive powers of the State.
“The President through a proclamation issued on December 19 assumed to himself all the functions of the Government of J&K and all powers vested in or exercisable by the Governor under the Constitution of India or Constitution of J&K,” the official said.
“But on the same day, the President issued a separate order to empower Governor to exercise all powers, except law-making powers assumed by him (President).”
However, he said, during President’s rule the lawmaking powers of the Jammu and Kashmir legislature can be exercised by the Parliament of India.
To a question about the need of Government of India’s nod for continuation of advisors after imposition of President’s rule, the official said, “It was necessary because they were appointed by Governor after assuming powers under section 92 of J&K Constitution.”
“It was also required as the J&K Delegation of Powers Act -2018 remained in operation during the period the state was under Governor’s rule. This law empowered Governor to delegate his powers to any person he may deem necessary.”
On December 28, the state Government ordered continuation of three advisors – Khurshid Ahmad Ganie, KK Sharma and Vijay Kumar – after seeking Government of India’s permission.
Government business is being carried out in accordance with the provisions of J&K Government Business Rules, the law department official said.
“After the imposition of President’s rule, the Governor ordered that the provisions of J&K Government Business Rules shall apply for the more convenient transaction of Government Business,” he added. A senior official in the state administration said decision-making doesn’t get affected during President’s rule.
“The decision-making powers can still be exercised by the Governor through state administration,” he said.
The state came under Governor’s rule on June 19, a day after BJP withdrew its support to Mehbooba Mufti-led government.
Unlike other states, a six-month Governor’s rule is imposed in J&K in case of breakdown of constitutional machinery. After the six-month period is over the state comes under President’s rule (direct central rule).
In other states, President’s rule is directly imposed in such circumstances.