In January 1950, the Indian president issued a proclamation under Article 370, adumbrating the nature of powers that the country’s Parliament was to exercise over Jammu and Kashmir (J&K), which had freshly joined the Union. The edict was supposed to confine these powers to three categories of subjects (defence, communication, and foreign affairs) specified in the accession treaty. This feature endowed the erstwhile state with unrivalled legislative privileges in India.
However, differences soon emerged, for example, over whether federal institutions such as the Comptroller and Auditor General (CAG) of India should enjoy any jurisdiction over J&K at all. The parleys between the autonomist leaders of Kashmir like Mirza Afzal Beg and those representing Delhi, ironed out those dissensions, albeit briefly, and the points of convergence between the two sides were enshrined in a document called the Delhi Agreement of 1952.
While affirming the autonomous nature of J&K, the document pushed the powers exercisable by New Delhi just a notch higher, for example, by giving the Supreme Court a tad slender mandate over the State.
Two years later, however, the dribble of wariness gave way to the tide of disaffection. Irritated with what he felt was New Delhi’s rapacious desire to hike its federal authority over J&K, Sheikh Abdullah contemplated pulling a plug on the accession, of which he was one of the architects. He was dismissed and imprisoned. Under his successors, the substantive elements of J&K autonomy were done away with.
In 1954, another Presidential Order decreed that a majority of subjects on the Union List were going to be applicable in J&K, effectively stripping Article 370 of much of its original vigour. Later, with the application of Articles 356 and 357, New Delhi hoovered up further authority, including powers to dismiss the state governments in extraordinary situations.
This counterintuitive aspect of Article 370, in which provisions granted within the law were invoked to weaken Article 370 itself, led scholar Madhav Khosla to opine that J&K’s special status has emerged as “asymmetric in the opposite sense to that intended as it has given Indian Union greater powers over Kashmir than it has over other states.”
The Reprise of Old Templates
The J&K Reorganisation Act, 2019, which ushered in a new chapter in the history of J&K, split the former state into two union territories, and also drastically reconfigured its legal arrangements. Article 370 became inoperative and almost all the federal laws became enforceable in J&K. The BJP government has defended the law on the grounds that it has brought the residents of J&K at par with the citizens of India and given them the rights they did not previously enjoy.
Yet, just like Article 370 before it, the J&K Reorganisation Act appears to have reinforced the Centre’s ability to wield unmatched powers over the erstwhile State.
This became clear on 12 July when the Union Home Ministry notified the J&K (Second Amendment) Government Business Transaction Rules, 2024 which outlined and also broadened the powers to be enjoyed by J&K’s lieutenant governor (LG).
The order invokes Section 55 of the J&K Reorganisation Act “(34 of 2019)” to be “read with the Proclamation dated 31 October 2019 issued under section 73” of the J&K Rules, 2019. The amendments have given exclusive powers to LG over ‘Police’, ‘Public order’, ‘All India Service’, and ‘Anti Corruption Bureau’. In matters concerning the transfers and posting of Administrative Secretaries and cadre posts of All India services officers, the LG will have a final say.
Further, it is the LG who will decide on the appointment of the Advocate General and other legal officers working with him. The LG’s powers will include the authority to grant or refuse the prosecution sanction and he will also enjoy similar authority in “matters connected with Prisons, Directorate of Prosecution and Forensic Science Laboratory,” the notification reads.
The Curtailment of the CM's Powers Ahead of Elections
Interestingly, the notification has come as the Centre prepares to conduct the Assembly elections in J&K this September following the directions from the Supreme Court last year.
But the latest reiteration of the far-reaching powers that LG effectively commands, is a reminder that the restoration of statehood that the regional politicians have been clamouring for, is not in New Delhi’s consideration, or that the statehood it aims to restore will be moribund.
“It looks like New Delhi doesn’t trust locals. It wants to keep the keys to every institution with itself,” explained a legal scholar based in the valley, pleading anonymity. “We see this refrain repeated ad nauseam that everything has been restored. It is nothing but the fact that everything has been restored to the Centre.”
BJP's Application of J&K Reorganisation Act
Although the demoted status of J&K as a UT had already been a harbinger of measures such as these, the incremental manner in which these developments are coming out points to the fact that they go hand-in-hand with the BJP-led Centre’s political messaging.
In August 2020, the Centre enacted the Transaction of Business for Government of J&K UT Rules, 2019, which first delineated the power-sharing arrangements between the LG and the elected ministers of J&K.
As per Section 55 of the J&K Reorganisation Act, the LG, while framing such rules, couldn’t have ignored the advice of the Council of Ministers, who would have been all locals. But the Centre circumvented the procedure by invoking the October 2019 proclamation that imposed President's Rule over J&K which gave all the powers to LG, relieving him of the obligation to observe Section 55, and therefore, adhere to such advice.
Since then, there have been so many occasions when the J&K Reorganisation Act has been utilised to take measures that are also part of the BJP’s political repertoire. In January earlier this year, for example, the J&K Board of School Education (BOSE) invoked the law to issue mandates for all schools in J&K to use only the board-prescribed textbooks.
As the People’s Democratic Party (PDP) noted in its protest, “JK BOSE’s decision to enforce only board books in J&K schools, limiting access to materials from reputed publishers, raises concerns. This move seems to control ideas, imposing a restricted curriculum—an assault on the right to free education. No such order is applicable across India.”
Government's Duality
Muhammad Ashraf Mir, former Law Secretary of J&K, said that while the recent amendments harken back to the provisions enshrined in the Reorganisation Act of 2019, it was nonetheless a reiteration of the “massive” disempowerment that J&K has been dealt with. “With the downgrading of J&K to a UT, it was already clear the legislative competence over police and public order had been taken away from the legislature,” he said. “The new amendment just reallocates those powers to LG.”
Mir said that Section 53 of the Reorganisation Act already gives the kind of powers to LG that even the Legislative Assembly does not have. Defining the discretionary powers of the LG, Section 53 entitles the Council of Ministers headed by the CM to aid and advise the LG “except in so far as he is required by or under this Act to act in his discretion or by or under any law to exercise any judicial or quasi-judicial functions.”
Mir added that any matter on which the LG claims his discretion, it’s his decision that’s going to be final.
The BJP government trumpets that its policies expanded democracy in J&K. Addressing an event at Sher-i-Kashmir International Conference Centre (SKICC) in Srinagar last month, Prime Minister Modi lauded the people for “keeping the flag of democracy high,” alluding to the high turnout in the 2024 Lok Sabha elections. “The day is not far when you will select the new government of J&K with your own vote,” he added, “The day will come soon when J&K will shape its future as a State once again.”
Yet, the way in which the government caresses the J&K Reorganisation Act from time to time suggests that the kind of statehood that J&K gets back will likely be the one that New Delhi has. “J&K is slowly emerging to look like a metropolitan corporation. There will be a duality of government just like in Delhi, with two authorities side by side, with the chief minister acting as a municipal corporator,” said the above-quoted scholar. “Only the nomenclature of statehood will be restored.”
(Shakir Mir is an independent journalist. He has also written for The Wire, Article 14, Caravan Magazine, Firstpost, The Times of India and more. He tweets at @shakirmir. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)
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