CM On The Wall

   

With results of the hugely participated historic assembly election 2024 to be out, the focus is getting into government formation and the politician who will be the next Chief Executive of Jammu and Kashmir. Humaira Nabi writes about the tensions and dilemmas that dominate the grapevine in Jammu and Kashmir’s political class given the dwarfed status of the about-to-be Chief Minister

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In December 2017, the then Chief Minister of Jammu and Kashmir, Mehbooba Mufti, announced the withdrawal of charges against 4500 first-time offenders involved in stone-pelting incidents against security forces. This amnesty programme was introduced just days before New Delhi’s special peace representative arrived in Kashmir to initiate dialogue aimed at resolving the separatist insurgency, which had escalated since 2010 during anti-India protests.

Thousands of cases were subsequently withdrawn by the Jammu and Kashmir government. However, the decision sparked criticism, particularly from right-wing opinion holders who argued that the regional government had acted without considering the views of paramilitary, army, and other security personnel who were directly affected by the stone-pelting incidents.

Nearly seven years later, her party, the People’s Democratic Party (PDP), is seeking to revive her political legacy by promising similar actions. While campaigning for the just-concluded assembly elections, the PDP advocated for a political solution to the region’s problems, calling for the revocation of laws like the Public Safety Act (PSA), Unlawful Activities Prevention Act (UAPA), and Enemy Act, to end the unjust arrests of political and social activists, journalists, civil society members, and concerned citizens.

It is not PDP alone. Many other regional political parties including JKNC (Jammu and Kashmir National Conference), AIP (Awami Itihad Party) and others have made similar promises in their election manifestoes. However, lawmakers believe that even if the parties were to win with an absolute majority, it is unlikely that the new government would be able to fulfil even an iota of the promises they made.

A Downgraded Space

Since the region’s status was downgraded from a state to a federally governed Union Territory, the powers of the Chief Minister have been significantly reduced. This was further exacerbated on July 12, 2024, when the Ministry of Home Affairs (MHA) amended the administrative rules governing Jammu and Kashmir, granting the Lieutenant Governor (LG) greater authority over matters related to the police, public order, and the All-India Services (AIS), including control over transfers and postings.

Experts suggest that the elected Chief Minister of Jammu and Kashmir may end up being nothing more than a lore dastar, a term in Kashmiri which means a figurehead—a leader adorned with the title of authority yet devoid of any real power.

“Without a shadow of a doubt, it is true,” Mohammad Ashraf, former law secretary said, while discussing the authority of the to-be elected Chief Minister. Believing that the step is to disempower the Chief Minister of the region, Ashraf said that, “the Chief Minister will have no powers more than that of a mayor.”

Detailing the authority the Chief Minister and Ministers of Jammu and Kashmir will hold, Ashraf highlighted that the assembly elections appear no more significant than municipal elections. As per the system in vogue, a Chief Secretary has more power than a Chief Minister here. Similarly, bureaucrats will hold more authority than the elected officials, leaving the elected government in a position of helplessness.

“There are certain decisions that only the Chief Minister can make, while others must go to the cabinet, as an order cannot be approved without a cabinet decision. Additionally, some matters should be directed to the Governor. However, most of these powers have now been transferred to the Lieutenant Governor, which has created an imbalance in the distribution of power for smooth running of a government,” he explained.

Ashraf further emphasised that, under the current arrangement, even a Chief Minister cannot transfer an SP. “What authority remains for the Chief Minister then” he questioned.

JKNC leader, Omar Abdullah waving the party flag in an election rally in Srinagar’s famed Dal lake.

Reaction

The amendments triggered widespread reactions from politicians across the region. Omar Abdullah, Vice President National Conference criticised the move, suggesting that the people of Jammu and Kashmir deserve more than a Chief Minister who would be reduced to a “powerless, rubber-stamp” figure, having to seek the LG’s approval even for appointment of a peon.

In response to these developments, PDP’s Mehbooba Mufti announced on August 28, that she would not contest the upcoming assembly elections. She expressed concern that even if she were to become Chief Minister, she would be unable to advance her party’s agenda under the current setup. Reflecting on her past tenure as Chief Minister in a coalition with the BJP, she questioned the effectiveness of the role, noting that she was able to address issues like revoking FIRs against 12000 individuals and engaging with separatists for talks. These actions, she argued are no longer feasible in the present political environment.

Mufti’s decision underscores a broader question facing all parties and leaders involved in the upcoming elections: What are they truly vying for, given the significant constraints on the powers of the Chief Minister under the new administrative framework?

The Amendments

The amendments to the rules governing Jammu and Kashmir introduced several new provisions to the Transaction of Business of the Government of Union Territory of Jammu and Kashmir Rules, 2019. The amendments have introduced key changes to procedural rules, enhancing oversight and coordination.

Sub-rule 2A, now requires that any proposal needing the Finance Department’s prior concurrence for matters related to Police, Public Order, All India Services, or the Anti-Corruption Bureau be submitted to the Lieutenant Governor through the Chief Secretary before approval or rejection.

Rule 42A mandates that the Department of Law, Justice, and Parliamentary Affairs present proposals for the appointment of the Advocate-General and other law officers to the Lieutenant Governor via both the Chief Secretary and the Chief Minister.

Similarly, Rule 42B requires that any proposals concerning prosecution sanctions or appeals be directed to the Lieutenant Governor through the Chief Secretary.

Amendments to Rule 43 specify that issues related to Prisons, the Directorate of Prosecution, and the Forensic Science Laboratory must be forwarded to the Lieutenant Governor by the Administrative Secretary of the Home Department through the Chief Secretary.

Proposals regarding the posting and transfer of Administrative Secretaries and All India Services officers are now to be submitted by the Administrative Secretary of the General Administration Department through the Chief Secretary. These changes are designed to centralise approval processes and improve administrative coordination.

Police With MHA

In a major intervention, the Ministry of Finance decided to assume full financial responsibility for the Jammu and Kashmir Police, the second most populous department within the Jammu and Kashmir government. The decision was part of the budget 2024-25.

Jammu Kashmir LG, Manoj Sinha felicitating a young cadet of JK Police at PTS Kathua on March 3, 2023. Pic: DIPR

Highlighted the heavy financial burden posed by the policing budget (11 per cent), Sitharaman said: “It is observed that around 11 per cent of the budget of Jammu and Kashmir is used for Police. Such expenses on policing being unavoidable, leave limited space for spending on development and welfare projects,” she stated. The high expenditure on the police force has historically constrained the region’s ability to invest in crucial development and welfare initiatives, according to the speech.

To address this issue, the Government allocated Rs 12,000 crore in the annual budget to cover the salary, pension, and other operational costs of the Jammu and Kashmir Police. This shift in financial responsibility, she said, was aimed at freeing up significant resources for the Union Territory’s development projects. “With this unprecedented assistance of Rs 17,000 crore, the fiscal deficit to GDP ratio will be 3.0 per cent in the FY 2024-25, well within the target. This assistance will lead to a complete improvement in the fiscal position, enabling the Government of Jammu and Kashmir to correct the legacy of financial challenges and work towards fulfilling the developmental needs and aspirations of the people, while maintaining stable fiscal health.”

As the police would be paid by the MHA, the control will also be with the federal government. This will make the Jammu and Kashmir government a toothless tiger with every move requiring vetting and order from the Government of India.

A Dwarfed CM?

While the August 5, 2019 decision-making has hugely disempowered the assembly of Jammu and Kashmir, the subsequent interventions have reduced the status of the chief executive of the erstwhile state. The 2024 Chief Minister of Jammu Kashmir will be merely a shadow of the chief executive that the erstwhile state had almost seven decades ago.

Jammu and Kashmir since its accession to India has witnessed a change in the amplitude of powers in the regional government. The post of Chief Minister was first created in 1965, with the Sixth Constitution of Jammu and Kashmir Amendment Act, when GM Sadiq the then Prime Minister of Jammu and Kashmir was installed as the first Chief Minister of Jammu and Kashmir.

Before this amendment, Jammu and Kashmir had a unique political structure. The head of the state was called the Sadr-e-Riyasat, who was elected by the state’s assembly. This position was equivalent to the Governor in other states but was specific to the political autonomy Jammu and Kashmir enjoyed under Article 370 of the Indian Constitution.

A rare click in the assembly showing Sajjad Gani Lone as the only lawmaker present in the house in late 2017. That day, he was slightly earlier than all others. KL Image: Bilal Bahadur

The amendment abolished the office of the Sadr-e-Riyasat and replaced it with the Governor, who would now be appointed by the President of India, as is the case with other states. This move brought Jammu and Kashmir’s governance closer in line with the rest of the country. The amendment also changed the head of the government from Prime Minister of Jammu and Kashmir to Chief Minister, aligning it with the designation used in other states. Before this, the head of the Jammu and Kashmir government was referred to as the Prime Minister, reflecting the special status the region.

Sheikh Mohammad Abdullah (March 5, 1948 – August 9, 1953), Bakshi Ghulam Mohammad (August 9, 1953 – October 12, 1963), Khawaja Shamsuddin (October 12, 1963 – February 29, 1964) and GM Sadiq (February 29, 1964 – March 30, 1965) were the ‘Prime Ministers’ of Jammu and Kashmir. After Sadiq was re-elected to the top position in 1962 election, the Prime Minister of Jammu and Kashmir was changed to Chief Minister. Now in 2024, it is getting to a new low.

Another amendment the Central government introduced the Jammu and Kashmir Reorganisation Act, 2019, which details the administrative changes to the Union Territory’s statehood, autonomy, and constitution that flowed from the repealed Article 370 and 35A of the Constitution, by repealing 205 State laws.

The act provides that the administration of Jammu and Kashmir will be as per Article 239A of the Indian constitution. Article 239A, originally formulated for the union territory of Puducherry, will also apply to Jammu and Kashmir. A lieutenant governor appointed by the president will administer the union territory of Jammu and Kashmir, which will have a legislative assembly of 107 to 114 members. The legislative assembly may make laws for any of the matters in the state list except “public order” and “police”, which will remain as the law-making powers of the union government.

A council of ministers including a chief minister will be appointed by the lieutenant governor from the members of the legislative assembly, with the role to advise the lieutenant governor in the exercise of functions in matters under the legislative assembly’s jurisdiction. In other matters, the lieutenant governor is empowered to act in his capacity, and will also have the power to promulgate ordinances having the same force as acts enacted by the legislature.

Mohd Syed Malik, Kashmir’s veteran journalist while talking about the trajectory of disempowerment that Jammu and Kashmir’s administration witnessed over the years stated that the centralisation of authority and the gradual erosion of the region’s political autonomy began on August 9, 1953, when Sheikh Abdullah was dismissed as Prime Minister of Jammu and Kashmir by the then state’s Sadr-e-Riyasat, Dr Karan Singh.

“We enjoyed a semi-autonomous status, with an assembly that held legislative power, or at least we believed so, and no one interfered. This was possible because of the special provision for the state of Jammu and Kashmir. However, in 1953, everything changed. That year marked the first time a significant blow was dealt to Kashmir’s autonomy,” Malik, who was also Sheikh Abdullah’s Director of Information and Public Relations (DIPR) post-1975, explained. “A tunnel was opened, but it was a one-way tunnel that paved the way for increasing central control. Gradually, central laws began to be applied to the state in great numbers. By the time we reached 2019, there was little left of the autonomy that once existed.”

He referenced Nehru’s statement, that Article 370 would eventually “wear itself out” over time. Between 1953 and 1963, during Bakshi’s tenure, Malik noted that many central laws were introduced in Jammu and Kashmir. Yet, Bakshi resisted the renaming of certain titles, opposing the change from Sadr-e-Riyasat to Governor and from Prime Minister to Chief Minister.

Malik explained that the recent amendments to the Jammu and Kashmir Reorganization Rules, which enhance some powers of the Lieutenant Governor, are simply an extension of the centralised rules that the region has been subjected to for decades.

The Amendments

When the transaction of business rules was first notified by the MHA in August 2020, political parties and legal experts identified a fundamental issue. According to Section 55 of the Jammu and Kashmir Reorganisation Act, 2019, these rules had to be enacted by the Lt Governor on the advice of the Council of Ministers. However, the Union government proceeded with the framing of business rules without an elected government in place.

To avoid this requirement, the central government relied on a proclamation issued by the President of India on October 31, 2019, which imposed President’s Rule in Jammu and Kashmir. This proclamation allowed the President to assume all functions of the government and suspend the operation of Section 55, thus enabling the central government to frame and amend business rules without consulting elected representatives.

Speaking anonymously, an advocate, discussed the constitutional implications of the order, emphasising that such an order cannot be issued without proper legislation. “A bill must first be passed and debated, that’s the proper process for making amendments,” he said. “You cannot implement amendments of such significant consequence through an executive order alone. If the legislature was not in place, ideally the administration should have waited for its formation, to decide it.”

A New Dilemma

With elections over and the results about to be out, the political class is facing a crisis about who will fit in the fold that the Government of India has created. The hunt is on to locate the Tin Man of Jammu and Kashmir, who would be there with a desire to own a heart, believing that it will allow him to express emotions. (The Tin Man is a fictional character from L Frank Baum’s novel The Wonderful Wizard of Oz)

Omar was initially reluctant to contest because the CM status was powerless. Later, his party said he was compelled to contest at two berths – Budgam and Ganderbal. Mehbooba, who asserted that she may not fit the role as she has been the Chief Executive of an empowered assembly, did not contest. Instead, she fielded her daughter Iltija. The party claims it may not be the king but could be a kingmaker.

Right now, there are only two claimants to the throne: the BJP and the JKNC-Congress alliance. While numbers will decide who will emerge as the single largest party, the political parties are already working on who could be their choice for the top post.

BJP Kashmir unit Sunday facilitated newly District Development Council (DDC) members. Pic: Internet

Regardless of what the BJP is telling in Jammu that they will push for a Hindu Chief Minister, the fact of the matter is that it has been ruled out at the highest level. There is a strong possibility that BJP and its allies somehow manage the numbers, it may get Jammu and Kashmir a Chief Minister from Gurez. With neither of the two knowing what Jammu and Kashmir’s Chief Ministers were all about, they may live with the role they get. There is, however, a possibility to have a strong Hindu Deputy Chief Minister in that kind of dispensation.

If JKNC-Congress gets the numbers, there is a strong likelihood of Dr Farooq Abdullah assuming the position of Chief Minister. A five-time Chief Minister of Jammu and Kashmir, he may use his decades-long political connect to offer some resemblance of stability. The BJP plan B would ensure that they will make the governance a challenge if they lack a stake in it.

What will happen and how the historic verdict 2024 will roll out? Who will create history by sitting in a mayoral position and still love to be Chief Minister? How things will materialise towards statehood? All these questions may become relevant once the numbers are out. Even after that, it will take a “real long time” to have a government in Jammu and Kashmir that has been ruled directly by the centre since 2018 summer.

(The report was published a day before the results of Jammu and Kashmir assembly elections were out.)

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