Appointment of Advocate General in Jammu & Kashmir: Whose prerogative?

The Union Territory of Jammu and Kashmir has a provision for an Advocate General unlike any of the other seven union territories including Ladakh and Delhi.

Under Section 79 of the Jammu and Kashmir Reorganisation Act, the Lieutenant Governor has been vested with the power to appoint an Advocate General, who shall be a person qualified to be a judge of the High Court.

Section 53 provides that there shall be a Council of Ministers with the Chief Minister at its head to aid and advise the Lieutenant Governor in exercise of his functions “in relation to matters with respect to which the Legislative Assembly has the power to make laws”. It is clear from a plain reading of this Section that the requirement of aid and advice of the Council of Ministers is limited only to such matters which fall within the competence of the Legislative Assembly. By no stretch of imagination can the power of the Lieutenant Governor to appoint an Advocate General fall within the category of matters with respect to which the Legislative Assembly has the power to make laws.

This matter does not find place in any applicable Entry of the State List or the Concurrent List in the Seventh Schedule of the Constitution of India, as applicable to Jammu and Kashmir under Section 32 of the Reorganisation Act. Therefore, this power of the Lieutenant Governor is totally discretionary and is not required to be exercised on the aid and advice of the Council of Ministers headed by the Chief Minister.

However, a very limited role has been assigned to the Chief Minister under Rule 42A recently inserted in July 2024 itself in the Transaction of Business of the Government of Union Territory of Jammu and Kashmir Rules, 2019. Rule 42A provides that the Department of Law, Justice and Parliamentary Affairs shall submit the proposal for appointment of Advocate General and other law officers to assist the Advocate General in court proceedings, for approval of the Lieutenant Governor through the Chief Secretary and the Chief Minister. This Rule does not in any manner curtail the discretion of the Lieutenant Governor vested in him under Section 79 of the Reorganisation Act in the appointment of the Advocate General.

It may be of interest to note that a similar power is vested in the Governor to appoint an Advocate General for a State under Article 165 of the Constitution of India. However, Article 163 provides that there shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions. But the requirement of aid and advice of the Council of Ministers only “in relation to matters with respect to which the Legislative Assembly has the power to make laws” is not contained in Article 163, unlike Section 53 of the Reorganisation Act. Similar is the position of law in respect of the power of the President to appoint the Attorney General of India under Article 76, read with Article 74 of the Constitution.

The irresistible conclusion drawn from the comparative analysis of the above-quoted provisions makes it clear that the power of the Lieutenant Governor of Jammu and Kashmir to appoint an Advocate General is absolutely in his discretion.

This conclusion draws further support from the legal position prevalent in the context of the Union Territory of Delhi. In April 2023, the Lieutenant Governor of Delhi had assumed the role of appointing advocates for representing Delhi government before the various courts and tribunals, relying upon some office memorandum issued by the Union Home Ministry in 2017. In February 2024, the office of the Lieutenant Governor mandated that appointment and engagement of advocates would have to be submitted for his approval first. This action of the Lieutenant Governor created difficulties for Delhi government, as payment due to several lawyers who had been earlier appointed pursuant to the Delhi government’s cabinet decision from October 2019 and had appeared before the various courts and tribunals was held up. This compelled the Delhi government to file a writ petition before the Supreme Court in March 2024 challenging the said action of the Lieutenant Governor, which is still pending adjudication.

Moreover, as late as in August 2024, a three-judge bench of the Supreme Court in case titled Government of NCT of Delhi v. Office of Lieutenant Governor of Delhi had upheld the action of the Lieutenant Governor of Delhi to nominate aldermen to the Municipal Corporation of Delhi without the aid and advice of the Council of Ministers. The Supreme Court held that Section 3(3)(b)(i) of the Delhi Municipal Corporation Act is a Parliamentary enactment vesting in the Lieutenant Governor the power to nominate persons with special knowledge. It was held that this power was to be exercised as a statutory duty of the Lieutenant Governor and not as the executive power of the Delhi government.

In this background, it is more than clear that the power of the Lieutenant Governor of Jammu and Kashmir to appoint an Advocate General is absolutely discretionary where he is not required to act on the aid and advice of the Council of Ministers. At the most, the Lieutenant Governor may take into consideration the opinion of the Chief Minister in this regard when the proposal is submitted to him by Department of Law, Justice and Parliamentary Affairs through the Chief Secretary and the Chief Minister under Rule 42A of the 2019 Rules.

A union territory is actually administered by the President of India under Article 239 of the Constitution of India. Unlike states, there is no constitutional requirement of a Legislative Assembly and a Council of Ministers in a union territory, which though may be provided by an Act of Parliament as has been done in Delhi, Puducherry and Jammu and Kashmir. And as such, it is for Parliament to distribute powers between the various authorities in a union territory, which may not be in consonance with the powers available with similar authorities in a state. This write-up is a humble attempt to demystify the legal position applicable to the Union Territory of Jammu and Kashmir.

All said and done, the Lieutenant Governor of Jammu and Kashmir is expected to give due weight to the opinion of the duly elected Chief Minister, who represents the will of the people after a free and fair election. Given the sensitive position of Jammu and Kashmir, it is the need of the hour that some apolitical person who has a good understanding of law and the current legal status of Jammu and Kashmir, who can act as a bridge between the two high constitutional functionaries, be appointed to this coveted post. This can go a long way in ensuring the smooth functioning of the Government of Jammu and Kashmir in the interest of the masses who have already suffered a lot in the past.

Sakal Bhushan is a Delhi-based lawyer hailing from Jammu & Kashmir.