M y c o n s i d e r e d opinion is based on the letter of law and its jurisprudence interpretation, that –no interim council of ministers as contemplated for the Union Territory of Jammu and Kashmir can be formed. The council of ministers can only be constituted after the elections to the Legislative Assembly is held AND; after the ensuing delimitation exercise to identify and finalisation of the constituencies is complete. The existence of a legislative assembly is a pre-requisite for the appointment of the Council of Ministers.
In the interim, if it is felt that an advisory council to aid the Lieutenant Governor would be beneficial, and in the people’s interests, such a body would not be in violation of the scheme of the legal regime so created in, after the creation of the Union Territory of Jammu and Kashmir under the UT Act or the Reorganisation Act. Similar to the advisory bodies in Union Territories which do not have legislatures, an advisory body for the Union Territory of Jammu and Kashmir may also be formed. This, however, will require an amendment to the Reorganisation Act for such a power to be vested in the Union Government.
Absent the explicit power to appoint an advisory council, such appointments may run the risk of being ultra vires. Where legislatures are provided for Union Territories, the appointment of the Council of Ministers to aid the Lieutenant Governor presupposes the existence of the legislative assembly, which are prescribed to be elected through a direct election. This is on account of the fact that it is explicitly recognised that:
(i) The council of ministers will be collectively responsible to the legislative assembly; and (ii) To be eligible to be a council of minister, the said person will have to be a member of the said assembly, failing which, an additional period of 6 months may be granted. The statutory and legal framework relevant to the administration of union territories is briefly set out. The Jammu and Kashmir Reorganisation Act, 2019 (Act 34 of 2019) was enacted 9 August 2019 and came into effect on 31 October 2019 (Reorganisation Act).
Under the Reorganisation Act, the erstwhile State of Jammu and Kashmir was bifurcated into two Union Territories, that of Ladakh (comprising the Kargil and Leh districts) and that of Jammu and Kashmir (comprising the territories of the erstwhile state apart from those constituting the Union Territ ory of L ada kh). Section 13 of the Reorganisation Act states that “On and from the appointed day, the provisions contained in article 239A, which are applicable to “Union territory of Puducherry”, shall also apply to the “Union territory of Jammu and Kashmir”.
In relation to the Council of Ministers, Section 53(1) of the Reorganisation Act states: “There shall be a Council of Ministers consisting of not more than ten percent of the total number of members in the Legislative Assembly, with the Chief Minister at the head to aid and advise the Lieutenant Governor in the exercise of his functions in relation to matters with respect to which the Legislative Assembly has power to make laws except in so far as he is required by or under this Act to act in his discretion or by or under any law to exercise any judicial or quasi-judicial functions.”
While, under Section 54(2) it is states that the Ministers shall hold office during the pleasure of Lieutenant Governor, it is nonetheless affirmed under Section 54(3) that “The Council of Ministers shall be collectively responsible to the Legislative Assembly”. Crucially, under Section 54(5), the qualification to be appointed to the Council of Ministers states that “A Minister who for any period of six consecutive months is not a member of the Legislative Assembly shall at the expiration of that period cease to be a Minister.”
It is noted that the Government of Union Territories Act (UT Act) applies to the Union Territory of Puducherry through Article 239A and to this effect, the UT Act will also be applicable ceteris paribus to the Union Territory of Jammu and Kashmir. The above provisions of the Reorganisation Act quoted above under are also mirrored under UT Act. Notably, Section 45 of the UT Act states that:
(1) The Chief Minister shall be appointed by the President and the other Ministers shall be appointed by the President on the advice of the Chief Minister.
(2) The Ministers shall hold office during the pleasure of the President.
(3) The Council of Ministers shall be collectively responsible to the Legislative Assembly of the Union Territory.
(4) Before a Minister enters upon his office, the Administrator shall administer to him the oaths of office and of secrecy according to the forms set out for the purpose in the First Schedule.
(5) A Minister who for any period of six consecutive months is not a member of the Legislative Assembly of the Union territory shall at the expiration of that period cease to be a Minister. […]” In this context, it is relevant to consider the decision of the Madras High Court in A. Syed Ansari v. Union of India, 2000 SCC Mad 221 wherein a petition challenged the appointment of a person who was not a member of the legislative assembly as a minister was challenged.
Dismissing the Writ Petition, the court observed: “There is nearly one-year period to expire the term of the Legislative Assembly of Pondicherry Union Territory. There is sufficient time for the 4th respondent to become a Member of the Legislative Assembly. Therefore, the proviso (a) to Section 151-A may not be a fetter to his being a member of the Legislative Assembly.” Although the point addressed herein is not the point in issue, the above extract from the judgement of the Madras High Court tacitly affirms the fact that the existence of a legislative assembly is a pre- requisite for the appointment of the Council of Ministers.
This point has also been affirmed by the Delhi High Court in C.M. Stephen v. Atal Behari Vajpayee, 1980 SCC Del 169, wherein it was held (albeit in the context of the National Capital Territory of Delhi, which has a separate set of rules exclusively applicable to it): “The Government of Union Territories Act, 1963 provides for Legislative Assemblies and Council of Ministers for the said Union Territories. In every State and the Union Territory covered by the Government of Union Territories Act, 1963, there is a Council of Ministers with the Chief Minister at the head to aid and advice the Governor/Administrator in the exercise of his functions.
The Leader of the party which commands the majority in the Legislative Assembly is entrusted with the task of forming the Government and the Ministers are chosen from the party. When the Chief Minister and other Ministers occupy the positions, they form political part of the Government. In their capacity as leaders of the political party, they have to explain the policies and programmes which they seek to enforce.” Consequently, it is my view that the power to nominate or appoint an advisory council to aid and advise the Lieutenant Governor as in the case of the Union Territory of Ladakh (under Section 58(4) of the Reorganisation Act)1 is not available so far as the Union Territory of Jammu and Kashmir is concerned.
It may, however, be noted that the council of ministers as contemplated for the Union Territory of Jammu and Kashmir can only be constituted after the delimitation exercise to identify the constituencies is complete. In the interim, if it is felt that an advisory council to aid the Lieutenant Governor would be beneficial, such a body would not be in violation of the scheme. Ashok Bhan is a Constitutional Expert, Senior Advocate, the Supreme Court of India.