Could J&K LA pass resolution on special status, had Puducherry model been in place?

Jammu, Nov 30: Legislative Assembly of Union Territory of Jammu and Kashmir, in its maiden session, which lasted five days from November 4 to 8, 2024 in Srinagar, moved and passed a resolution seeking restoration of special status and constitutional guarantees.

The resolution, moved by Deputy Chief Minister, Surinder Kumar Choudhary, on November 6 under supplementary list of business, “reaffirmed the importance of special status, constitutional guarantees, which safeguarded the identity, culture and rights of the people of Jammu and Kashmir.”

Expressing concern over their (special status, constitutional guarantees) “unilateral removal”, the resolution read, “This (J&K) Legislative Assembly calls upon the Government of India to initiate dialogue with elected representatives of people of Jammu and Kashmir for restoration of special status, constitutional guarantees and to workout constitutional mechanisms for restoring these provisions.”

“This Assembly emphasises that any process for restoration must safeguard both national unity and the legitimate aspirations of the people of Jammu and Kashmir,” the resolution, seconded by Minister for Health and Medical Education, Sakina Masood Itoo, read.

The resolution, seeking restoration of Article 370 and 35-A in a very subtle expression, was passed by the J&K Legislative Assembly amid violent protest by 28 MLAs of the Bharatiya Janata Party (BJP).

As anticipated earlier, the resolution created flutters across political spectrum, though its aftermath also saw dissonance among Kashmir based parties over “its (resolution’s) ambiguous and subtle expression (by not directly referring to Article 370 and 35-A).”

This created a kind of discord between the alliance partners National Conference and the Congress as well after the latter interpreted it (resolution) as a reiteration of demand for restoration of statehood and not for restoration of “Article 370, 35-A” as the former (NC) insisted.

“For Congress, following the Supreme Court’s decision on Article 370 and 35-A, the only issue pending is that of restoration of statehood, exclusive rights of locals over land and jobs and this was what this resolution emphasised,” was Congress leaders’ interpretation.

Nevertheless, resolution spiralled into a controversy, which found its resonance across the country. While local BJP leadership protested against it tooth and nail in J&K, describing it as “an affront to the spirit of Constitution, Parliament and also the contempt of (Supreme) court”, top BJP leadership exploited this issue to the hilt in two poll-bound states, mainly Maharashtra.

This not only put Congress on the defensive but also helped BJP bag a stunning victory in Maharashtra.

It was notable that the J&K Legislative Assembly, in the absence of new Business Rules, conducted its business, in its maiden session under UT status, as per the rules existing in the erstwhile state of Jammu and Kashmir.

Speaker J&K Legislative Assembly, Abdul Rahim Rather too had stated it, while presiding over the proceedings, quoting provision in J&K Reorganisation Act, 2019 enabling House (Assembly) to run as per the rules of erstwhile J&K till the framing of new rules.

As the controversy erupted over resolution passed in J&K Legislative Assembly (LA) regarding special status and constitutional guarantees, dubbed as “illegal and unconstitutional” by BJP’s national as well as J&K leadership, it also raised another interesting proposition.

Could J&K LA move, pass resolution on special status, had business rules on Puducherry model (which formed the premise of J&K UT’s governance model) been in place?

Question finds its genesis in “The Administrator’s Rules for the Pondicherry Legislative Assembly.”

Under its Part II, dealing with “Prohibition of discussion of certain matters”, Rule 5 stipulates “Restrictions on resolutions.”

According to Rule 5 (1), no resolution “shall be moved which relates to any matter which affects the discharge of the functions of the Administrator in so far as he is required by the Act to act in his discretion.”

According to sub rule (2), if the “Speaker is of the opinion that a resolution or any part of a resolution is or may be one which cannot be moved because it is prohibited under sub-rule (1), he shall, as soon as may be after the receipt of the resolution, forward to the Administrator a copy thereof and, unless the Administrator (whose decision in the matter shall be final) decides that the resolution may be moved, it shall not be entered in the List of Business.”

As per sub-rule (3), “Notwithstanding the fact that the Speaker has made no reference under sub-rule (2), if the Administrator, acting in his discretion, decides that any resolution or any part of a resolution is one which cannot be moved because it is prohibited under sub-rule (1), he may communicate his decision (which shall be final) to the Speaker, and on such communication, the resolution shall not be entered in the List of Business or, if it has been so entered, the Speaker shall decline to allow the resolution to be moved.”

Sub-rule (4) stipulates, “If any doubt arises whether any resolution of which notice has been given or any part thereof is or is not within the prohibition imposed by sub-rule (1), the Administrator shall, acting in his discretion, decide the point and his decision shall be final.”

Almost similar restrictions are in place on “questions” to be asked (in LA), under Rule 4.

It is pertinent to mention here that the rules for J&K Legislative Assembly, to facilitate its functioning under new setup, too are yet to be framed.