J&K: Restore “Sadar-i-Riyasat”

January 10, 2016

Bill seeking restoration of “Sadar-i-Riyasat” as Head of the State

Mohammad Yousuf Tarigami,CPI(M) MLA has submitted a Private Member’s Bill to the J&K Legislative Assembly Secretariat today on 31-12-2015, seeking change in designation of Head of the State as “Sadar-i-Riyasat” with the following “statement of objects and reasons”:-

Statement of Objects and Reasons

The State of Jammu and Kashmir enjoys a unique constitutional position within the federal structure of Union of India. Keeping into consideration the aspirations of the people of Jammu and Kashmir the constituent assembly gave to the State a constitution for the State of Jammu and Kashmir. However, it has been observed that the basic of the structure of the constitution has been eroded by number of amendments carried out in the constitution. By the Constitution (Sixth Amendment) Act 1965, the position of Sadar-i-Riyasat was replaced by Governor. Instead of elections the Governor is now appointed by the President of India by warrant under his hand and seal. It is now also not necessary that the Governor be a permanent resident of the State as originally incorporated in the Constitution. Hon’ble High Court of Jammu and Kashmir in its recent judgment has also held that the amendment made in the Constitution for the substitution of Governor by Sadar-i-Riyasat was not in consonance with the spirit of law and was violative of the principles laid down by Hon’ble Supreme Court in this regard. The Bill seeks to restore the original position of the Constitution which was existing before the Constitution (Sixth Amendment) Act, 1965.

Full Text of the Bill

The Constitution of Jammu and Kashmir (Amendment) Bill, 2016

A Bill to amend the Constitution of Jammu and Kashmir.

Be it enacted by the State Legislature in the Sixty-sixth year of the republic of India as follows:-

Short title and commencement.- (1) This Act may be called the Constitution of Jammu and Kashmir (Amendment) Act, 2016.

(2) It shall come into force from the date of its publication in the Government Gazette.

2. Amendment of the Constitution.- In the Constitution of Jammu and Kashmir (hereinafter referred to as “the Constitution”) the expression “Governor”, wherever occurring shall be substituted by expression “Sadar-i-Riyasat”.

3. Substitution of part V:- Part V of the Constitution shall be substituted by the following:-

“26.(1) Head of State.- The Head of the State shall be designated as the Sadar-i-Riyasat.

(2) The executive power of the State shall be vested in the Sadar-i-Riyasat and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution.

(3) Nothing in this section shall –

(a) be deemed to transfer to the Sadar-i-Riyasat any functions conferred by any existing law on any other authority; or

(b) prevent the State Legislature from conferring by law functions on any authority sub-ordinate to the Sadar-i-Riyasat.

27. Election and recognition.- The Sadar-i-Riyasat shall be the person who for the time being is recognized by the President as such:

Provided that no person shall be so recognized unless he –

(a) is a permanent resident of the State;

(b) is not less than twenty-five years of age; and

(c) has been elected as Sadar-i-Riyasat by a majority of the total membership of the Legislative Assembly in the manner set out in the First Schedule.

28. Term of office.- (1) The Sadar-i-Riyasat shall hold office during the pleasure of the President.

(2) The Sadar-i-Riyasat may, by writing under his hand addressed to the President, resign his office.

(3) Subject to the foregoing provisions of this section, the Sadar-i-Riyasat shall hold office for a term of five years from the date on which he enters upon his office:

Provided that he shall, notwithstanding the expiration of his term, continue to hold office until his successor enters upon his office.

29. Eligibility for re-election.- A person who holds or has held office as Sadar-i-Riyasat shall, subject to the other provisions of this Constitution, be eligible for re-election to that office.

30. Conditions of office:- (1) The Sadar-i-Riyasat shall not be a member of either House of Legislature and if a member of either House be elected and recognized as Sadar-i-Riyasat, he shall be deemed to have vacated his seat in the House on the date on which he enters upon his office as Sadar-i-Riyasat.

(2) The Sadar-i-Riyasat shall not hold any other office of profit.

(3) The Sadar-i-Riyasat shall be entitled to such emoluments, allowances and privileges as are specified in the Second Schedule.

(4) The emolument and allowances of the Sadar-i-Riyasat shall not be diminished during his term of office.

31. Oath of office.- The Sadar-i-Riyasat and every person acting as Sadar-i-Riyasat shall, before entering upon his office, make and subscribe in the presence of the Chief Justice of the High Court or, in his absence, the senior-most judge of that High Court available, an oath or affirmation in the following form, that is to say –

“I, A. B. do swear in the name of God/solemnly affirm that I will faithfully discharge the functions of the Sadar-i-Riyasat of Jammu and Kashmir and will to the best of my ability preserve, protect and defend the Constitution and the law and that I will devote myself to the service and well-being of the people of State.”

32. Removal from Office.- The Sadar-i-Riyasat may be removed from his office by the President if an address by the Legislative Assembly supported by a majority of not less than two-thirds of its total membership is presented to the President praying for such removal on the grounds of violation of the Constitution.

33. Acting Sadar-i-Riyasat.- When a vacancy occurs in the office of the Sadar-i-Riyasat by reason of his death, resignation or removal or when the Sadar-i-Riyasat is unable to discharge his functions owning to absence, illness or any other cause, the functions of the office shall, until the assumption of office by a newly elected Sadar-i-Riyasat or the resumption of duties by the Sadar-i-Riyasat, as the case may be, discharged by such person as the President may, on the recommendation of the Council of Ministers of the State, recognize as the acting Sadar-i-Riyasat.

34. Power to grant pardons, reprieves, etc.- The Sadar-i-Riyasat shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends.”

4. Insertion of First Schedule.- Before Second Schedule of the Constitution, the following Schedule shall be inserted:-

“First Schedule (See Section 27) Method of Election to the Office of the Sadar-i-Riyasat

1. When election to the office of the Sadar-i-Riyasat becomes necessary, the Speaker of the Legislative Assembly shall fix time and date for the holding of the election and shall cause a notice thereof to be sent to every member.

2. At any time before noon on the date preceding the date so fixed, any member of the Legislative Assembly may nominate another person for election by delivering to the Speaker or any officer authorized by the Speaker in this behalf, a nomination paper in the form prescribed in the annexure to this Schedule signed by himself as proposer and by another member as seconder.

3. Any person who has been so nominated may withdraw his candidature in writing addressed to the Speaker at any time before the Assembly proceeds to hold the election.

4. At the time fixed for election under para 1, the Speaker or in his absence the person presiding shall read out to the Assembly the names of the persons who have been duly nominated and have not withdrawn their candidature together with those of their proposers and seconders, and, if there is only one such candidate, shall declare him to be duly elected. If there is more than one such candidate, the Assembly shall proceed to elect the Sadar-i-Riyasat by ballot.

5. Where there are only two candidates for election, the candidate who obtains at the ballot the larger number of votes shall be declared elected. If they obtain an equal number of votes, the Speaker or in his absence the person

presiding shall exercise his casting vote and the person in whose favour such vote is cast shall be declared elected.

6. Where more than two candidates have been nominated and at the first ballot no candidate obtains more votes than aggregate votes obtained by the other candidates, the candidate who has obtained the smallest number of votes shall be excluded from the election, and balloting shall proceed, the candidate obtaining the smallest number of votes at each ballot being excluded from the election, until one candidate obtains more votes than the remaining candidate or than the aggregate votes of the remaining candidates, as the case may be, and such candidate shall be declared elected.

7. Where at any ballot any of three or more candidates obtain an equal number of votes and one of them has to be excluded from the election under para 6, the determination, as between the candidates whose votes are equal, of the candidate who is to be excluded shall be by the casting vote of the Speaker or in his absence of the person presiding.

8. The Chief Minister of the State shall communicate the name of the person duly elected by the Assembly as the Sadar-i-Riyasat to the President of India for being recognized as the Sadar-i-Riyasat.

Statement of Objects and Reasons

(M.Y.Tarigami)

M.L.A.