Bill to amend the Constitution Act, 1996

Legal Document No 129

1. Short title....(l) This Act may be called the Jammu and Kashmir Constitution (Amendment) Act, 2009.

2. It shall come into force on the 17th of November, 1952.

3. Amendment of section 3, Act XIV of 1996 Clause (c) of section 3 of the Jammu and Kashmir Constitution Act, 1996 (herein after referred to as "the said Act") shall be omitted.

4. Substitution of section 4, Act XIV of 1996....For section 4 of the said Act the following section shall be substituted, namely:

5. "Sadar-i -Riyasat….

1. The Head of the State shall be designated as "Sadar-i-Riyasat".

2. All rights, authority and Jurisdiction which appertain or are incidental to the Government of the territories of the State of Jammu and Kashmir shall be exercisable by the Sadar-i-Riyasat on the advice of the Council except in so far as may be otherwise provided by or under this Act, and except in regard to those matters enumerated in List I in the Seventh Schedule to the Constitution of India with respect to which the Parliament of India has power to make laws for the State.

3. Election and term of office of the Sadar-i-Riyasat and all other matters pertaining to the office of the Sadar-i-Riyasat shall be regulated in accordance with the Resolution of the Constituent Assembly dated the 21st of August, 1952, which Resolution is set out in Schedule I.

4. Amendment of a number of sections by substitution of "Sadar-i-Riyasat" for "His Highness" in Act XIV of 1996...In Sections 7,8,9....A sub-section (1), no sub-sections (1) and (3), 11, 13 sub-section (1), 16, 17, 31 sub-sections (1) and (2) 38. 43 clause (a), 48 sub-section (b), 49,52,53,57, 58,64 sub-section (1), 67 sub-section (2) and 71 of the said Act, for the words "His Highness" where-ever occurring, the words "the Sadar-i-Riyasat" shall be substituted.

5. Amendment of sections 8,9-A, 53 and 71, Act XIV of 1996....In sections 8, 9-A, 53 and 71, for the word and figure ' Schedule 1" wherever occur-ring, the word, figure and letter "Schedule I-A" shall be substituted.

6. Amendment of sections 37 and 43 (c) heading of section 71 and schedule I, Act XIV of 1996....In sections 37 and 43 clause (c), the heading to section 71 and form C of Schedule I (now to be renumbered as I-A) of the said act for the words "His Highness" "Board of Judicial Advisers" the words "Board of Judicial Advisers" shall be substituted.

7. Addition of new section 46-A, Act XIV of 1996…. After section 46 of the said Act, the following section shall be added, namely:

"46-A votes on account, votes of credit of and exceptional grants.

(1) Notwithstanding anything in the foregoing provisions of this Act, the Legislative Assembly shall have power:

(a) to make any grant in advance in respect of the estimated expenditure for a part of any financial year pending the completion of the procedure prescribed in section 45 for the voting of such grant;

(b) to make a grant for meeting on unexpected demand upon the revenues of the State when on account of magnitude or the indefinite character of the service the demand cannot be stated with details ordinarily given in an Annual Financial Statement;

(c) to make an exceptional grant which forms no part of the current service of any financial year.

(2) The provisions of section 45 shall have effect in relation to the making of any grant under sub-section (1) as they have effect in relation to the making of a grant with regard to any expenditure mentioned in the Annual Financial Statement.

8. Amendment of section 55, Act, XIV of 1996 .... In section 55 of the said Act, the words "shall run
and be in the name and style of His Highness and" shall be omitted.

9. Amendment of section 66, Act XIV of 1996....In section 66 of the said Act, for the words "the commands of His Highness" the words "orders of
the Sadar-i-Riyasat" shall be substituted and for the words "His Highness" where they occur for the second time the words "the Sadar-i-Riyasat"
shall be substituted.

10. Amendment of section 72. Act XIV of 1996 .... In section 72 of the said Act:

(i) the heading "Prerogative" to the section shall be omitted; and

(ii) for the words "Prerogative of His Highness" the words "Powers of the Sadar-i-Riyasat" shall be substituted.

11. Substitution of new section for section 73, Act XIV of 1996....for section 73 of the said Act, the following section shall be substituted namely:...

"Revenues of the Jammu and Kashmir State-73... All revenues and public monies raised or received by or on behalf of the Jammu and Kashmir Government shall be received for and credited to the account of the Jammu and Kashmir State.

Explanation: The expression "revenues" includes:

(a) all fines and penalties incurred by the sentence or order of any court of justice in the State, and all forfeitures, for crimes, of any movable or immovable property in the State; and

(b) all movable and immovable property in the State escheating or lapsing for want of an heir or successor and all property in the State devolving as bona vacantia, for want of a rightful owner."

12. In section of a new Schedule in Act XIV of 1996:

Schedule I of the said Act shall be renumbered as Schedule I-A and before the said Schedule as so renumbered, the following Schedule shall be inserted namely:

1. Qualifications .... No person shall be eligible for elections to the office of the Sadar-i-Riyasat, un-less he:

(a) is a State Subject of Class I as defined in the State Subject Definition Notification. No. I-L/ 84, dated 20th April, 1927

(b) has completed the age of 2I years on the date of filing the nomination paper; and

(c) is not subject to any of the disqualifications specified in rule 4 of the Jammu and Kashmir Constituent Assembly Election (Part I) Rules, 2008, for being chosen as a member of the Constituent Assembly.

2. The Sadar-i-Riyasat shall not be a member of the Legislative Assembly of the State, of if a member of the Legislative Assembly of the State, he shall be deemed to have vacated his seat in the House on the date he enters upon his office as the Sadar-i-Riyasat.

3. The Sadar-i-Riyasat shall hold no other office of profit.

4. Method of Election...(i) When election to the office of the Sadar-i-Riyasat becomes necessary, the Speaker of the State 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.

(1) At any time before noon on the date preceding the date so fixed, any member of the State Legislative Assembly may nominate another person for election by delivering to the Speaker or any officer authorised 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.

(2) Any person who has been so nominated may withdraw his candidature in writing addressed to the Speaker at anytime before the Assembly proceeds to hold the election.

(3) At the time fixed for selection under sub-clause (i), 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.

(4) 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.

(5) Where more than two candidates have been nominated and at the first ballots no candidate obtain more votes than the 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 candidates, or than the aggregate votes of the remaining candidates, as the case may be, and such candidate shall be declared elected.

(6) 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 sub-clause (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.

(7) The Prime Ministers 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 recognised as the Sadar-i-Riyasat.

(8) Oath .... The Sadar-i-Riyasat shall, before entering upon his office, make and subscribe in the presence of Chief Justice of the State High Court or in his absence any judge of the High Court available on oath or affirmation in the following form, namely:

"I, A. B.. swear in the name of God/solemnly affirm that I will faithfully execute the office of the Sadar-i-Riyasat. Jammu and Kashmir and will to the best of my ability preserve, protect and defend the Constitution of the State as by law established and that I will devote myself to the service and well being of the people of the State."