How new Jammu and Kashmir assembly will be different from earlier ones in terms of power?

Jammu and Kashmir is currently undergoing an assembly election after 10 years. These 10 years have changed a lot in J-K. Once a state, it has now divided into two UTs- J-K and Ladakh. The Jammu and Kashmir Reorganisation Act,2019 passed by the Parliament created two UTs by amending the First Schedule, which includes names of states and UTs, and Article 3 of the Constitution. By enactment of this act, the UT of J-K was created with a legislature while the UT of Ladakh was created without a legislature.

Since the J-K will have a legislature, it will also have a CM and its government. However, the power of the assembly will be different from that of any state. Also, the privilege that the Jammu and Kashmir assembly and accordingly the government enjoyed under Article 370 will be reduced.

What powers J-K state assembly had?

According to the instrument of accession, signed between India and Maharaja of Kashmir, India had to look after defence, communications and foreign affairs. Article 370 reinforced that the parliament could only make laws regarding these three matters. This made Jammu and Kashmir different from other states. While for the whole of India, the Parliament was entitled to make laws regarding matters listed in the Union and Concurrent List, for Jammu and Kashmir, the Parliament had a very limited scope of making laws. This left all the remaining subjects of the Union List under the legislative assembly and, subsequently under the ruling majority or government.

Constitutional provisions for ruling UT

Union Territories are administered under Article 239 of the Indian Constitution. Article 239 says that “every union territory shall be administered by the President, acting, to such extent as he thinks fit, though an administrator…”, Notably, the UT is administered either with the legislature or without it. They have the President appointed Lieutenant Governor (LG) as the administrator. According to the 2019 reorganisation act's Section 13,  Article 239A of the Constitution (“Creation of local Legislatures or Council of Ministers or both for certain Union territories”), which provides for the administration of the UT of Puducherry, shall also apply to the UT of Jammu and Kashmir.

Change in power structure after J-K Reorganisation Act

Jammu and Kashmir Reorganisation Act, 2019 has granted a wider role to the LG as compared to the legislature. In short, the LG will have an upper hand on the matters of the UT. 

Section 32

Section 32 of the Act deals with the extent of the legislative assembly. According to this section, the legislative assembly may make laws for UT with respect to any matter listed in the State list except Public Order and Police. Meanwhile, the section also says that it will not obstruct Parliament from making laws regarding the UT which are bestowed upon it by the Constitution. 

Additionally, for the Concurrent List, the UT can make the laws only until it is applicable to Jammu and Kashmir only. On th other hand, states have more liberty on the Concurrent List and can make laws until the legislation is not contrary to Parliament-made law.

Section 36

The assembly will also be dependent on LG for introducing the Finance Bill. According to Section 36 of the Act, a finance bill can only be introduced in the legislature after the recommendation of the LG, if the bill/amendment tries to make "amendment to the law with respect to any financial obligations undertaken or to be undertaken by the Government of the Union territory."

This Section has wide implications as most of the bills/amendments come with financial obligation, making it hard for the legislative assembly to dodge LG's concerns.

Section 53

Under Section 53, the Council of Ministers will be there to advise the LG. However, the act does not bind the LG by the advice of CoM which is the case in most of the states. The Act gives power to LG to exercise his powers and act at his discretion.

Most importantly, the act provisions that on any matter that raises questions on the applicability of LG's discretion, LG's decision will be final and any such decision can not be questioned. Even the advice tendered by the Council of Ministers can not be inquired in the court. 

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