PRECEDENT OR PARADOX: Dilemma of J&K’s return to statehood: ‘Democratic certainty’ or ‘constitutional quagmire’

Srinagar, Jun 24: Holding fresh elections in Jammu and Kashmir are not necessary as rightly pointed out by the ruling National Conference (NC) functionaries but would be a “democratic certainty” due to the “enhanced powers and status of a State Assembly under Articles 168 compared to a Union Territory (UT) Assembly under Article 239 A”.

Legal experts holding this perspective argue that a State assembly has greater legislative autonomy, particularly over matters like “public order” and “Police,” which remain under central control in a UT. Talking to Greater Kashmir, a former Advocate General of Jammu and Kashmir and a constitutional expert, D C Raina did not rule out any possibility.

“There are residuary and transitional provisions,” said Raina, who was first appointed as Advocate General in 2008 and reappointed several times, particularly on November 1, 2019, after the abrogation of Article 370 and downgrading of J&K state into two union territories.

He did not rule out holding fresh elections for the transition to J&K state government from the J&K UT government saying, “Under the transitional provisions, there is the J&K Reorganisation Act and under that we have ‘removal of doubts.’” Raina, who has been on several important assignments representing top government institutions and bodies, said, “It depends upon at what time what period remains, and it will be seen at the relevant time.”

The constitutional foundation for State assemblies is primarily rooted in the Constitution of India. Article 168 provides for the constitution of legislatures in states, while Article 170 deals with the composition of the Legislative Assemblies. Some constitutional experts have pointed out that as against this, the Legislative Assembly of the Union Territory of Jammu and Kashmir has been constituted under an Act of the Parliament: The Jammu and Kashmir Reorganisation Act, 2019.

Section 13 of this act applies Article 239 A of the Constitution of India, which provides for “a framework for the administration of certain UTs”, allowing for the establishment of local representative bodies, which in the case of J&K is the Legislative Assembly.

Whether the restoration of statehood to J&K will necessitate the dissolution or reconstitution of the current legislative assembly of the UT is debatable.

Legal experts like Rakesh Dwivedi and Gopal Sankaranarayanan have opined that the existing 90-member Legislative Assembly, constituted under the Jammu and Kashmir Reorganisation Act, 2019, can continue to function as the State Assembly upon restoration of statehood.

As per this scenario, a parliamentary law amending the J&K Reorganisation Act, 2019, would suffice to transition the J&K UT Assembly to J&K State Assembly, without requiring fresh elections or dissolution. This view is seen to be supported by historical precedents of Himachal Pradesh. But constitutional experts pointed out that Himachal Pradesh was a creation of the States Reorganisation Act, 1956, not a specific act like J&K.  However, in terms of constitutional or legal requirement under the Constitution of India or existing laws, such as Article 168, which governs State legislatures, or Article 239 A, which applies to UTs with legislatures, does not spell out if dissolving a UT assembly upon a change in territorial status is required or not required. According to sources in the North Block, legal experts consulted by the government opine that there is a technical argument for fresh elections due to the change in legislative powers. A senior political observer said, “Can the Centre dissolve the Assembly as a part of the process of restoration of statehood. The answer is, ‘Yes, they can.’  Should they do it? The answer is perhaps no.” The real question is will they do it? That will be a political decision, not necessarily a constitutional one.

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