MHA draft on Ladakh demands: Elected body’s laws need L-G nod

The draft has become a key point of disagreement in its negotiations with Ladakh leaders.

The draft says: “As a legislative practice enshrined in the Constitution of India, every regulation (law) made by the UT Level Body would go to the Lt. Governor and would take effect after his assent.”

The October 15 draft proposes giving constitutional status to a Union Territory-level elected body through a new Article 371K, but envisages its law-making authority as powers to make “regulations” on specified subjects, with the institution itself and its functions to be provided through a Presidential regulation under Article 240.

According to Ladakh leaders, this marks a significant departure from the understanding recorded following negotiations on May 22, whose minutes were finalised and signed by representatives of the MHA and Ladakh on July 3.

More significantly, the draft provides for removal of members of the elected body by the LG for specified reasons such as conviction, insolvency, incapacity or conflict of interest.

Also, the Union’s executive power would extend to issuing directions to the body, while the Administrator would have oversight powers.

Those minutes recorded a unanimous decision to establish a customised Union Territory-level elected body with “executive, financial and legislative powers”, along with constitutional safeguards through a proposed Article 371K.

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The minutes also recorded agreement that control and supervision of bureaucrats dealing with subjects under the elected body, including their annual performance reports, would vest with the elected executive.

The MHA document, however, repeatedly makes clear that this is not a final government position and describes itself as a “draft for consultation” whose regulatory, executive and financial powers are only “indicative”.

The details of the proposal have emerged after Apex Body Leh (ABL) chairman Chering Dorjay Lakrook Thursday released documents exchanged between representatives of Ladakh and the MHA, saying they should be available for “public information and independent assessment”.

He said the documents were being released following public speculation over what had been agreed during the negotiations and what subsequently went wrong.

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The disclosure comes amid uncertainty over the negotiations, with a meeting scheduled in Delhi on October 22 failing to take place. The October 15 talks in Leh had ended without agreement after Ladakh representatives rejected the MHA draft, saying it did not reflect what had been agreed earlier.

Under the proposed framework, Parliament would first insert Article 371K, while the composition, elections, functions and powers of the UT-level body would subsequently be provided through a Presidential regulation under Article 240.

Ladakh representatives have argued that this would make the institution fundamentally different from the kind of legislature they had sought, with its legislative competence defined in the Constitution or parliamentary law rather than primarily through a Presidential regulation.

The MHA draft does not presently propose giving it general competence over the State List. Instead, it identifies subjects on which the body could make regulations, including land and land records, community land, cultural affairs, forests other than reserved forests, environmental planning, conservation, planning and development and budget-making. It says additional matters could be conferred through the Article 240 framework.

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Ladakh leaders have argued that several of these functions are already performed by the autonomous Hill Councils and that what had been negotiated in May was an elected body exercising genuine legislative authority at the UT level, rather than another institution exercising delegated regulatory powers.

The bureaucratic structure is another major point of disagreement.

The May minutes recorded that “control and supervision over bureaucracy” would rest with the elected body for subjects within its jurisdiction. Ladakh’s October proposal consequently seeks control over transfers, postings, allocation of work and supervision of officers, besides a separate Ladakh cadre and an independent Public Service Commission. It also proposes that the Chief Minister be the reporting authority for the Chief Secretary.

The MHA draft instead provides for a Chief Executive Secretary to head the secretariat of the proposed UT-level body, without conceding the wider administrative control sought by the Ladakh representatives.

Another sticking point is the protection Article 371K would provide against Central laws. The draft says the body would work “within the Constitution and all laws applicable to Ladakh”, that “Central laws would continue to apply”, and that regulations made by the body “would not affect the powers of Parliament, Courts, Central Government or the Administrator”.

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This is one area where the proposal differs from the Article 371A model operating in Nagaland — one of the constitutional precedents Ladakh representatives have invoked during negotiations.

Article 371A restricts the application of Acts of Parliament on four specified fields: Naga religious and social practices, customary law and procedure, administration of justice involving customary law, and ownership and transfer of land and its resources. Such laws do not apply to Nagaland unless its Legislative Assembly passes a resolution accepting them.

Ladakh representatives have sought a similar constitutional protection for a wider set of subjects, including land and natural resources, domicile, public employment, education, culture and languages.

Their proposal says Parliamentary legislation or executive action concerning these protected fields should apply to Ladakh only through a consent or resolution mechanism prescribed under Article 371K. The MHA draft released by Lakrook does not spell out such a mechanism.