Open Letter to the Hon'ble Speaker, J&K Legislative Assembly

R S Pathania

rspathaniamla@gmail.com

Dear Mr. Speaker,

You occupy an office that transcends party lines and everyday politics. You are not merely the Presiding Officer of this Assembly; you are its Custodian-the guardian of its Rules, its constitutional boundaries, and its institutional character.

The foundational principle of parliamentary democracy runs as 'Speaker represents the House, and the House represents the Nation'. From that Chair, the public expects absolute impartiality, constitutional discipline, and institutional restraint. It is in this background and spirit of upholding constitutional propriety that I am addressing this letter.

With all respect and responsibility at my command, I humbly submit that on three crucial occasions in the current Assembly, the Chair has permitted business that severely undermines the Assembly's constitutional standing and institutional credibility.

1. Resolution on "Special Status": Confusing Political Rhetoric with Constitutional Power

The resolution passed by this House on November 6, 2024, sought the restoration of J&K's "special status." An elected representative has every right to articulate political aspirations. However, the Chair must distinguish between political discourse and legislative competence.

A resolution of a Legislative Assembly cannot alter the constitutional framework of the Republic:

· August 5 & 6, 2019: Constitutional Orders 272 and 273 applied the Constitution of India in its entirety to Jammu & Kashmir.

· Parliamentary Authority: Both house of Union Parliament passed and enacted the Jammu & Kashmir Reorganisation Act, 2019.

· Judicial Finality: On December 11, 2023, a five-judge Constitution Bench of the Supreme Court of India unanimously upheld the events and legal happenings preceding and succeeding 5thAugust, 2019, and further ruling that J&K retained no sovereignty after joining India and that Article 370 was a temporary provision.

A legislative resolution is not a constitutional amendment. It cannot repeal an Act of Parliament, invalidate a Presidential Order, or reverse the law laid down by the Supreme Court. Admitting resolutions that imply this Assembly holds sovereign powers to override the Indian Constitution compromises the integrity of this House.

Resolution on RTE & TET: Transgressing Separation of Powers

The resolution passed on September 24, 2026, 'virtually' calling upon the Supreme Court to retract its judgment regarding the Teacher Eligibility Test (TET) and appealing Union Parliament to amend Right to Education (RTE) Act, sets a dangerous precedent.

Under our constitutional framework:

· The Legislature enacts law within its defined field.

· The Executive enforces the law.

· The Judiciary interprets the law and ensures constitutional compliance.

No organ of the State can assert jurisdiction over another through a legislative resolution. Under Article 141, the law declared by the Supreme Court is a 'binding mandate' on all authorities across the nation. If a judicial pronouncement requires review, the Constitution prescribes specific judicial avenues. A legislative resolution is not a substitute for due process of law. And this is the very essence of doctrine of 'separation of powers' which has been held as basic structure of Indian Constitution.

The Commonwealth's Latimer House Principles explicitly mandate mutual respect and institutional restraint among the Parliament, Judiciary, and Executive. The Chair must not allow the floor of this House to be used to issue directions to the judiciary and Union Parliament

Invoking Pre-1953 Status: Ignoring Settled Constitutional Reality

We now face a third critical departure from constitutional norm: the attempt to revive the "pre-1953" position under the guise of 'restoration of full statehood'.

Let me remind you of the *Central Laws Review Committee* set up in 1977 chaired by Deputy Chief Minister & former High Court Judge D.D. Thakur. Notably, you were also a member of J & K Assembly at that time. Mr. Thakur's opined that "The needles of the clock cannot be turned back" and "none of the Central laws impinged on the state's special status or eroded the Kashmiri identity in any manner. On the contrary extension of the provisions of the Indian Constitution had only benefited the people of the state"

He added: "Most of the Central laws are necessary to ensure basic freedom and justice" and if they were scrapped and new laws enacted "again we will have to borrow from the same Constitution."

Sheikh Abdullah, the then Chief Minister, accepted *Thakur's view* and matter rested there.

Moreso, when the 'so-referred-to' 26 June 2000 (State Autonomy Resolution) was passed by JK Assembly, the Union Cabinet formally rejected it on July 4, 2000, stating that reversing decades of integration was unviable.

More importantly, the legal landscape today is settled:

1. The 2019 constitutional restructuring and the Supreme Court's 2023 verdict comprehensively evaluated the constitutional history of J&K and reaffirmed its legal integration.

2. Invoking a rejected 24-year-old autonomy model ignores the binding constitutional reality established by the highest court of the land.

When a resolution invokes pre-1953 arrangements, the Chair must ask: What is the legal competence of this House to table such a proposition, and what legal force can it possibly carry? This is not a matter of blocking political debate-it is a matter of enforcing procedural admissibility.

The Constitutional Mandate of the Chair

Mr. Speaker, the powers of the Chair are vast, but they are bounded by the Constitution:

· The power to regulate procedure exists to facilitate orderly conduct, not to enlarge the legislative competence of the Assembly.

· Relaxing procedural rules does not equate to relaxing constitutional limits.

As Erskine May, noted British theorist observed, authority and impartiality are the indispensable pillars of the Speaker's office. It is almost in the same vein, the Inter-Parliamentary Union (IPU) emphasizes that democratic parliaments must function strictly within the Rule of Law and respect judicial independence.

This Assembly is neither a Constituent Assembly nor the Parliament of India. It cannot rewrite the constitutional settlement of the Union, command the Judiciary, or confer legal legitimacy where none exists.

Political majorities change, but the precedents set today will govern this Chair tomorrow. History will record not only the resolutions passed on this floor, but whether the Chair stood as a guardian of constitutional boundaries.

Your bounden duty is not merely to permit debate-it is to protect:

· Protect the Rules of Procedure.

· Protect the Supremacy of the Constitution.

· Protect Institutional Integrity.

· Protect the Dignity and Decorum of this House.

(The columnist is member of Legislative Assembly of J & K.)