Functions & Powers   

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The Council of Ministers

35. Council of Ministers to aid and advise the *Governor.-

      (1) There shall be a Council of Ministers with 1[Chief Minister] at the head to aid and advise the *Governor in the exercise              of his functions.

        (2) All functions of the *Governor except those under sections 36, 38 and 92 shall be exercised by him only on the advice of              the Council of Ministers.

       (3) The queston whether any, and if so what, advice was tendered by Ministers to the *Governor shall not be enquired into in              any court.

 36. Appointment of Ministers.-The 1[Chief' Minister] shall be appointed by the *Governor and the other Ministers shall be appointed by the *Governor on the advice of the 1[Chief Minister].

 38. Deputy Ministers.-The *Governor may on the advice of the 1[Chief Minister] appoint from amongst the members of either House of Legislature such number of Deputy Ministers as may be necessary.

 39. Tenure of Office.-The Ministers and the Deputy Ministers shall hold office during the pleasure of the *Governor.

 40. Oaths of Office and Secrecy.-Before a Minister or a Deputy Minister enters upon his office, the *Governor or, in his absence, any person authorised by him, shall administer to the Minister or the Deputy Minister the oaths of office and of secrecy according to the form set out for the purpose in the Fifth Schedule.

The Advocate General

42. Advocate General for the State.-(1) The *Governor shall appoint a person who is qualified to be appointed a Judge of the High Court, to be Advocate General for the State.

 (4) The Advocate General shall hold office during the pleasure of the *Governor and receive such remuneration as the *Governor may determine.

 Conduct of Government Business

 43. Rules of Business.-The *Governor shall make rules for the more convenient transaction of the business of the Government of the State and for the allocation among Ministers of the said business.

 44. Duties of Chief Minister.-It shall be the duty of the 1[Chief Minister].-

       (a) to communicate to the *Governor all decisions of the Council of Ministers relating to the administration of the affairs of the               State and proposals for legislation.

     (b) to furnish such information relating to the administration of the affairs of the State and proposals for legislation as the            *Governor may calI for ; and

     (c) if the *Governor so requires, to submit for the consideration of the Council of Ministers any matter on which a decision has been taken by a Minister but which has not been considered by the Council.

 45. Form of orders and instruments and their authentication.-(1) All executive action of the Government shall be expressed to be taken in the name of the *Governor or of the Government of Jammu and Kashmir.

 (2) Orders and other instruments made and executed in the name of the *Governor or of the Government of Jammu and Kashmir shall be authenticated in such manner as may be specified in the rules to be made by the *Governor and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the *Governor or, as the case may be, by the Government of Jammu and Kashmir.

  THE STATE LEGISLATURE

  46. Legislature for the State.-There shall be a Legislature for the State which shall conslst of the *Governor and two Houses to be known respectively as the Legislative Assembly and the Legislative Council.

 47. Composition of Legislative Assembly.-(1) The Legislative Assembly shall consist of 1[ one hundred and eleven] members chosen by direct election from territorial constituencies in the State:

 Provided that the *Governor may if he is of opinion that women are not adequately represented in the Assembly, nominate not more than two women to be members thereof.

2[ 48-A. Holding of General Election in the event of earlier dissolution of Legislative Assembly.-Notwithstanding anything contained in this Constitution if upon the Completion of a census, but before the final readjustment of territorial constituencies, the Legislative Assembly is dissolved prior to the expiry of its duration and the Governor is satisfied that holding of general election without delay is necessary, he may, after consulting the Election Commission, by notification direct that the general election shall be held on the basis of the last preceding delimitation of territorial constituencies].

50. Composition of Legislative Council (6) 3[Eight] members shall be nominated by the *Governor, not more than three of whom shall be persons belonging to any of the socially or economically backward classes in the State, and the others shall be persons having special knowledge or practical experience in respect of matters such as literature, science, art, co-operative movement and social service.

53. Session of the Legislature, prorogation and dissolution.- (1) The *Governor shall from time to time summon each House of the Legislature to meet at such time and place as he thinks fit, but six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next session.

     (2) The *Governor may from time to time -

         (a) prorogue the Houses or either House ;

         (b) dissolve the Legislative Assembly.

 54. Right of Governor to address and send messages to the House or Houses.-(1) The *Governor may address either House of Legislature, or both Houses assembled together, and may for that purpose require the attendance of members.

 (2) The *Governor may send messages to either House, whether with respect to a Bill then pending in the Legislature or otherwise, and a House to which any message is so sent shall with all convenient despatch consider any matter required by the message to be taken into consideration.

55. Special address by the Governor.-(1) At the commencement of the first session after each general election to the Legislative Assembly and at the commencement of the first session of each year, the  *Governor shall address both Houses of Legislature assembled together and inform the Legislature of the causes of its summons.

78. Assent to Bills.- When a Bill has been passed by both Houses of the LegIslature, it shall be presented to the *Governor and the *Governor shall declare either that he assents to the Bill or that he withholds assent therefrom :

 Provided that the *Governor may, as soon as possible after the presentation to him of the Bill for assent, return the Bill if it is not a Money Bill together with a message requesting that the Houses will reconsider the Bill or any specified provisions thereof and, in particular, will consider the desirability of introducing any such amendments as he may recommend in his message and when a Bill is so returned, the Houses shall reconsider the Bill accordingly and if the Bill is passed again by the Houses with or without amendment and presented to the Governor for assent, the Governor shall not withhold assent therefrom.

Procedure in Financial Matters

79. Annual Financial Statement.- (1) The *Governor shall in respect of every financial year cause to be laid before both Houses of the Legislature a statement of the estimated receipts and expenditure of the State for that year, in this Part referrred to as the "Annual Financial Statement".

80. Procedure in Legislature with respect to estimates.- (3) No demand for a grant shall be made except on the recommendation of the *Governor.

Procedure Generally

85.Rules of Procedure.- (3) The *Governor, after consultation with the Speaker of the Legislative Assembly and the Chairman of the Legislative Council, may make rules as to the procedure with respect to communication between the two Houses.

Legislative Power of the *Governor

91. Power of Governor to promulgate Ordinances during recess of Legislature.-(1) If at any time, except when both Houses of the Legislature are in session, the *Governor is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such ordinances as the circumstances appear to him to require :

 Provided that the power of making an Ordinance under this section shall extend only to those matters with respect to which the Legislature has power to make laws.

 (2) An Ordinance promulgated under this section shall have the same force and effect as an Act of the Legislature assented to by the *Governor but every such Ordinance-

      (a) shall be laid before both the Houses of the Legislature, and shall cease to operate at the expiration of six weeks from the re-assembly of the Legislature, or if before the expiration of that period a resolution disapproving it is passed by the Legislative Assembly and agreed to by the Legislative Council, upon the resolution being agreed to by the Legislative Council, and

     (b) may be withdrawn at any time by the *Governor.

4[(3) Notwithstanding anything in this Constitution, the satisfaction of the *Governor mentioned in sub-section (1) shall be final and conclusive and shall not be questioned in any Court on any ground].

 EXPLANATlON.-Where the Houses of the Legislature are summoned to reassemble on different dates, the period of six weeks shall be reckoned from the latter of those dates for the purposes of this sub-section.

 Breakdown of Constitutional Machinery

 92. Provisions in case of failure of Constitutional machinery in the State.-(1) If at any time the *Governor is satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution, the *Governor may by Proclamation-

(a) assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by anybody or authority in the State;

 (b) make such incidental and consequential provisions as appear to the *Governor to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending in whole or in part the operation of any provision of this Constitution relating to anybody or authority in the State:

 Provided that nothing in this section shall authorise the *Governor to assume to himself any of the powers vested in or exercisable by the High Court or to suspend in whole or in part the operation of any provision of this Constitution relating to the High Court.

     (2) Any such Proclamation may be revoked or varied by a subsequent Proclamation.

     (3) Any such Proclamation whether varied under subsection (2) or not, shall except where it is a Proclamation revoking a previous Proclamation, cease to operate on the expiration of six months from the date on which it was first issued.

     (4) If the *Governor by a Proclamation under this section assumes to himself any of the powers of the Legislature to make laws, any law made by him in the exercise of that power shall, subject to the terms thereof, continue to have effect until two years have elapsed from the date on which the Proclamation ceases to have effect, unless sooner repealed or re-enacted by an Act of the Legislature, and any reference in this Constitution to any Acts of or laws made by the Legislature shall be construed as including a reference to such law.

       (5) No Proclamation under sub-section (1) shall be issued except with the concurrence of the President of India.

       (6) Every Proclamation under this section shall, except where it is a Proclamation revoking a previous Proclamation, be laid before each House of the Legislature as soon as it is convened.

97. Oath or affirmation by Judges of the High Court.- Every person appointed to be a Judge of the High Court shall  before he enters upon his office, make and subscribe before the *Governor, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Fifth Schedule.

 116. Contingency Fund.-The Legislature may by law establish a Contingency Fund in the nature of an imprest to be entitled "the Contingency Fund of the State" into which shall be paid from time to time such sums as may be determined by such law, and the said Fund shall be placed at the disposal of the *Governor to enable advances to be made by him out of such Fund for the purposes of meeting unforeseen expenditure pending authorisation of such expenditure by Legislature by law under sections 82 or 83.

122. Contracts.-(1) All contracts made in the exercise of the executive power of the State shall be expressed to be made by the *Governor and all such contracts and all assurance of property made in the exercise of that power shall be executed on behalf of the *Governor by such persons and in such manner as he may direct or authorise.

      (2) The *Governor shall not be personally liable in respect of any contract or assurance made or executed for the purposes of this Constitution, or for the purposes of any enactment relating to the Government of the State heretofore in force, nor shall any person making or executing any such contract or assurance on his behalf be personally liable in respect thereof.

THE PUBLIC SERVICES COMMISSION

129. Appointment and term of office of members.-(1) The Chairman and other members of the Commission shall be appointed by the *Governor :

 Provided that as nearly as may be one-half of the members of the Commission shall be persons who at the dates of their respective appointments have held office for at least ten years under the Government.

130. Removal and suspension of a member of the Commission.-(1) Subject to the provisions of sub-section (3), the Chairman or any other member of the Commission shall only be removed from his office by order of the *Governor on the ground of misbehavior after the High Court, on reference being made to it by the *Governor, has, on inquiry held in  that behalf, reported that the Chairman or such other member, as the case may be, ought on any such ground to be removed.

(2). The Governor may suspend from office the Chairman or any other member of the Commission in respect of whom  a reference has been made to the High Court under sub-section (1) until the *Governor has passed orders on receipt of the report of the High Court on such reference.

(3) Notwithstanding anything in sub-section (1), the *Governor may by order remove from office the Chairman or any other member of the Commission if the Chairman or such other member, as the case may be-

         (a)  is adjudged an insolvent ; or

         (b) engages during his term of office in any paid employment outside the duties of his office ; or

         (c) is, in the opinion of the *Governor, unfit to continue in office by reason of infirmity of mind or body.

131. Power to make regulations as to conditions of service of members and staff of the Commission.-The *Governor may by regulations

         (a) determine the number of members of the Commission and their conditions of service; and

         (b) make provision with respect to the number of members of the staff of the Commission and their conditions of service :

Provided that the conditions of service of a member of the Commission shall not be varied to his disadvantage after his appointment.

137. Reports of the Commission. It shall be the duty of the Commission to present annualIy to the *Governor a report as to the work done by the Commission and the *Governor on receipt of such report, shall cause a copy thereof together with a memorandum explaining, as respects the cases, if any, where the advice of the Commission was not accepted, the reasons for such non-acceptance to be laid before the Legislature.

 143. Protection of Governor.-(1) The *Governor shall not be answerable to any court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties :

 Provided that nothing in this sub-section shall be construed as restricting the right of any person to bring appropriate proceedings against the Government.

       (2) No criminal proceedings whatsoever shall be instituted or continued against the *Governor in any court during his term of         office.

       (3) No process for the arrest or imprisonment of the *Governor shall issue from any court during his term of office.

 (4) No civil proceedings in which relief is claimed against the *Governor shall be instituted during his term of office in any court in respect of any act done or purporting to be done by him in his personal capacity, whether before or after he entered upon his office as *Governor until the expiration of two months next after notice in writing has been delivered to the *Governor or left at his office stating the nature of proceeding, the cause of action therefor, the name, description and place of residence of the party by whom such proceedings are to be instituted and the relief which he claims.

146. Academy for development of Art, Culture and Languages.-The *Governor shall, as soon as may be, after the commencement of the Constitution, establish an Academy of Art, Culture and Languages where opportunities will be afforded for the development of Art and Culture of the State and for the development of Hindi, Urdu and other regional languages of the State specified in the Sixth Schedule.

(ii) Others

            (a) The Governor is Ex-Officio Chancellor of the University of Kashmir, the University of Jammu, the Sher-i-Kashmir University of Agricultural Sciences and Technology, Kashmir, the Sher-i-Kashmir University of Agricultural Sciences and Technology, Jammu  and Shri Mata Vaishno Devi University. In his capacity as Chancellor, he is the Chairman of the Council of the Universities. The powers of the Chancellor are derived from the Universities Acts and Statutes prepared there under.

            (b) The Governor is the President of the Rajya Sainik Board.

            (c) The Governor is the President of the J&K Branch of the Indian Red Cross Society. In this capacity he is also the Chairman of the Managing Committee of the Jammu and Kashmir Branch of the Red Cross Society. He derives powers from the Constitution of the J&K Branch.

            (d) The Governor is the Patron of the Jammu and Kashmir Academy of Art, Culture and Languages.

            (e) All shares of the J&K State in its public-sector corporations are held by the Government in the name of the Governor. However, the Governor discharges his responsibility as a Share-holder through proxies.

            (f) The Governor is the Chairman of Shri Mata Vaishno Devi Shrine Board and Shri Amarnathji Shrine Board.        <TOP>


                                                                              ** Foot-note **

* See foot-note 1 to S. 2.

1. Substituted for "Prime Minister" by the Constitution of Jammu and Kashmir (Sixth Amendment) Act, 1965, S. 2.

2. Inserted vide ibid. S. 4.

3. Substituted ibid S. 2.

4. Inserted by the Constitution of Jammu and Kashmir (Fifteenth. Amendment) Act, 1976, S. 2.