Legislative Assembly’s rule making process
A process is underway to frame rules and procedure for conducting legislative business of the Legislative Assembly (LA for short ): for which a committee has been put in place . This exercise, however, has come in sharp criticism of some of the Valley based politicians.
It is after the gap of nearly seven years that Jammu and Kashmir has a Legislative Assembly, for whose constitution elections were held in September, 2024 . Prior to it, the one which was formed in 2015 got aborted midway, in 2018. In the intervening period, Jammu and Kashmir’s constitution, geography and politics suffered tectonic changes. Much has been said and written about that so there is no need to make a repetition thereof. Suffice it to say, after Art 370 was de-operationalized and State of J &K was truncated and demoted to the Union Territory, J&K constitution became ineffective. A new legislation called Jammu and Kashmir Reorganization Act 2019 was passed by the Parliament to govern the erstwhile state. (Henceforth the Act). To understand the issue in proper perspective a brief reference to the Act is necessary because it has assumed a character akin to the ‘constitution' for J &K. The opposition to the rule making process, therefore, has to be analyzed in light of the Act.
Section 14 (2) of the Act provides for a Legislative Assembly for the Union Territory of Jammu and Kashmir. Legislature Assembly which is today in place satisfies this requirement. Sec 46 (1) of the Act says that LA may make rules for regulating, subject to the provisions of the Act, its procedure and conduct of its business: Lieutenant Governor shall, after consultation with the Speaker, make rules. Subsection 2 of Section 46 states that until rules are made under Sub section (1), the rules of procedure and standing order in force immediately before the commencement of the Act, with respect to the Legislative Assembly of the exiting state of Jammu and Kashmir shall have effect in relation to the Legislative Assembly of the UT of Jammu and Kashmir, subject to such modifications and adaptations as maybe made therein by the Speaker of the Legislative Assembly.
It is in this background that the Speaker of the L A, Abdul Rahim Rathar has constituted a committee of the MLAs to frame business rules. As per the media reports draft rules have been prepared. Since members felt that the rules are voluminous in nature they wanted them to be compressed for the sake of brevity and clarity. This rule making exercise is opposed on the plea that it amounts to the ratification of August 5th 2019 Constitutional changes.
When previous L A was dissolved the State a of Jammu and Kashmir had an entirely different constitutional, geographic and political architecture which is not available today. Therefore, a look at the ground situation is called for and the existing constitutional scheme relating to J &K is to be factored in.
For many, what happened on 5th August, 2019 was not a pleasant thing to experience. Nevertheless, those who call LA business rule framing exercise as an act of ratification of 5/8 /2019 developments must understand that they too are a part of the Legislative scheme now in vogue in J&K. The Constitution of J&K which, prior to 5/8 / 2019, provided for a L A in the State, is now ineffective. The present L A, therefore , owes its existence to the Act and its business has to conform to its provisions. Rule making exercise is the essential part of legislative business. The ‘business rule' making process set in motion by the Speaker is also mandated by the Act. Therefore, whosoever has participated - leave alone stood as a candidate and got elected in the Assembly elections of 2024 has conscientiously subjected himself / herself to the provisions of the Act, which certainly is an off shoot of 5/8/2019 constitutional developments. They are deemed to have accepted these changes. Under these circumstances if contesting election for a seat in the Assembly could not be a ratification of 5/8 /19 how come business rule-making be such a ratification? Approbation and reprobation at the same time doesn’t look good.
In J&K both constitutional position and governance set up are in a flux. The duality in the administration is telling upon the government’s functioning . Two constitutional heads who are enthused with the job play on two different turfs . Focus has to be on this issue and an unified endeavor has be made to sort out the confusion . J & K must have the characteristics of a State which it had earlier. After a decade of uncertainty we see a semblance of political and administrative stability: it needs to be strengthened. The politicians owe it to the people who came out enthusiastically and in good numbers to form an elected government. It is no wisdom to fritter away the chance so soon and for no worthwhile reasons. However, it doesn’t mean that the political parties are precluded from raising unresolved issues which concern people.
B L SARAF, Former Principal District and Sessions Judge
