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Wednesday, February 22, 2012

Precedences galore but law about ‘Ministers without oath’ missing

Fearing freeze on discretionary grants and use of flags, Govt decides to question SAC’s authority

Ahmed Ali Fayyaz

SRINAGAR, Feb 20: In apprehension of an interim order, freezing the use of state flags and operation of ‘discretionary grants’ by political leaders enjoying the status of a Minister or Minister of State, on March 5th, Government is disputing State Accountability Commission’s authority of impleading Chief Minister and other state functionaries suo moto. Government’s legal luminaries have discovered precedences in previous regimes, as also in the union government, but a substantive law that governs ‘Ministers without oath’ and shall be pivotal in SAC’s proceedings about the CM’s advisors and heads of various statutory boards, is still missing.

Identical stories in media in defence of Omar Abdullah government’s action of grating the status and powers of Ministers to some legislators and non-legislators are being widely interpreted as indications of nervousness in Civil Secretariat. But, highly placed bureaucratic sources revealed to Early Times that Department of Law, in consultation with Advocate General, has decided to straightaway challenge SAC’s authority of impleading CM and other functionaries in a “third party complaint”. It has been observed by the government’s legal pundits that SAC has proceeded suo moto and issued summons even when Chief Minister and his advisors were not respondents and antecedents of the complainant were yet to be ascertained.

“Even SAC has not yet seen a complainant of this name and address. Inquiry and proceedings should have started after verification of the identity of the complainant”, said a government advocate.  

Officials associated with SAC insisted that the commission was inherently competent to take suo moto cognizance of complaints on the basis of the nature of a complaint and issue summons to any public authority including Chief Minister and Ministers under section 9 of the Act. “In certain specific complaints, we essentially need presence or representation of a complainant. But, when serious complaints of general nature surface during investigation or proceedings, Commission can call any public authority, including members of the council of ministers and head of the government, for an explanation”, one of the SAC functionaries asserted.

An independent legal practitioner and advocate at J&K High Court pointed out that section 9 was actually part of the SAC Regulations of 2005, neither sanctioned by legislation nor influencing spirit of the primary law--- J&K Accountability Commission Act of 2002. According to him, it was well possible that not satisfied with the government’s reply, SAC could resort to its authority under section 16 and recommend to Governor by way of an interim order calling for freeze on use of ‘discretionary grants’ and the state and the national flag and emblem by the respondents in dispute.

The respondents include one of Chief Minister’s Advisors, enjoying the status and powers of a Cabinet Minister, another Advisor, enjoying the status of a Minister of state, one Chairperson of a statutory board, enjoying the status of a Cabinet Minister, and five other Chairpersons/ Vice Chairpersons of statutory bodies holding the status of MoS.

Official sources said that a battery of government advocates, headed by Advocate General Mohammad Ishaq Qadiri, besides individual attorneys of respondents would appear before SAC on March 5th and challenge the legality of its summons served on CM and other respondents. According to their averments, only the respondent---Khem Lata Wakhloo, Chairperson of J&K State Social Welfare Advisory Board---was required by law to appear as a party.

Sources in SAC said that the Commission would primarily focus on the fundamental question: Under what authority were the advisors and heads of statutory boards using discretionary grants of Rs 3 Lakh a year without audit like the Ministers on oath? Was an executive authority in Government of Jammu & Kashmir competent by law to grant such financial powers to a public authority without being on oath of office and secrecy?

According to these sources, it was “completely irrelevant” that former Chief Minister Mufti Sayeed too had granted similar status and powers to 14 persons, there were similar precedences from the days of Sheikh Mohammad Abdullah and several persons, including Vice Chairman of Planning Commission in the union Government, were also designated like a Cabinet Minister. “In some cases, such incumbents can be decorated only for Order of Precedence and protocol at an official function or venue. In other cases, such incumbents can be drawing and disbursing money from public exchequer. That all is done under a proper authority under law. SAC will obviously seek and examine text of such a law or statutory sanction, if one exists”, a source in SAC explained. Absence of it, he said, would lead dismissal of such public authorities by Governor on the basis of a recommendation from SAC.

A Professor of law with University of Kashmir said that Government could immediately rush in appeal to J&K High Court and seek an order of relief, staying the operation of SAC’s interim order or recommendation to Governor.

In its initial reply to SAC, that came not before repeated notices to Chief Secretary and a warning of contempt proceedings, Government has provided Order dated 19-08-2010 making it clear that all the respondents in question were making use of status and powers, including operation of discretionary grants, allocated by statute to Ministers and Ministers of State.


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