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Tuesday, September 29, 2020

J&K House dissolution: Supreme Court to hear plea today

The petition generated fresh interest within the two opposing political camps in J&K, which had staked claim to form the government hours before the Assembly was dissolved.

Written by Muzamil Jaleel | New Delhi | Updated: December 10, 2018 6:57:22 am
J&K House dissolution: Supreme Court to hear plea today The petition says that the Governor’s action to dissolve the assembly “is contrary to the well-settled law”. (File photo)

THE SUPREME Court is likely to hear on Monday a petition challenging J&K Governor Satyapal Malik’s decision to dissolve the Assembly. The petition terms the Governor’s decision as “arbitrary and illegal” and wants the court to quash it with a direction to the Governor “to hold the floor test”.

The petition filed by BJP leader Dr Gangan Bhagat — who represented R S Pura constituency of Jammu in the recently dissolved assembly — has embarrassed the ruling party, which has supported the Governor’s decision. BJP’s state president Ravinder Raina has termed Bhagat’s petition “his individual decision”.

The petition has also generated fresh interest within the two opposing political camps in J&K, which had staked claim to form the government hours before the assembly was dissolved. The case — listed for Monday — has also generated a last-minute flurry of activities in the state’s legal team to mount a strong defence to the Governor’s decision. Sources said senior officials of the administration have come down to Delhi to coordinate the defence with senior legal officers of the Union government.

In his petition, Bhagat has termed Governor Malik’s decision “wholly arbitrary, illegal and unconstitutional”, “brazenly opposed to the spirit of constitution” and his intention “malafide and biased”.

“The case is of grave public importance as it directly affects the J&K state and its subjects who have elected their representatives for 6 years (in 2014)..(Governor) didn’t give an opportunity to the political parties, staking claim to form the government. Mehbooba Mufti claimed the support of 56 MLAs and on the same day Sajad Lone of Peoples Conference also claimed majority and staked claim. Both these letters were in public domain,” the petition says. “Governor with malafide and biased intentions issued a press communiqué declaring that the Legislative assembly has been dissolved by purported exercise of the power under section 53(2)(b) of the J&K Constitution.”

The petition says that the Governor’s action to dissolve the assembly “is contrary to the well-settled law”.

“… it is mandatory for the Governor to conduct floor test and give an opportunity to the parties to prove the majority on the floor of the house.This principle of law has been upheld by 5-judge constitutional bench (of Supreme Court) in Rameshwar Prasad versus Union of India”.

Quoting the Supreme Court judgment in Rameshwar Prasad case, the petition says the apex court has held that “if a political party with the support of other political party or other MLAs stakes claim to form a government and satisfies the Governor about the majority to form a stable government, the Governor cannot refuse formation of the government and override the majority claim because of his subjective assessment that the majority was cobbled by illegal and unethical means. No such power is vested with the Governor. Such a power would be against the democratic principles of majority rule. The Governor is not an autocratic political ombudsman. If such a power is vested in the Governor and/or the President, the consequences can be horrendous.”

Bhagat’s petition says that the Constitution “enjoins upon the Governor to ensure that every possible attempt is made to form a popular and stable government representing the will of the people expressed through the electoral process”.

“However, Governor (Satyapal Malik) failed to perform the duties, which were enjoined upon him under Constitution of India read with Constitution of J&K. Governor has acted contrary to the mandate of law… that the exercise of discretion (to dissolve the assembly) is wholly arbitrary, illegal and unconstitutional,” the petition says.

“It is the constitutional convention to invite parties claiming majority to prove it on the floor of the house by holding floor test. The Governor has no power, whatsoever, to deny such an opportunity to such parties by dissolving the assembly in haste and without following the democratic process,” the petition says.

“PDP being the single largest party which claimed the majority with the support of other parties (should have been) invited by the Governor to prove majority by holding floor test. The Sarkaria Commission report specifically dealt with the situation where no single party obtained absolute majority.”

The petition says that after dissolving the assembly, the Governor held a press conference where he alleged that he dissolved the assembly because of horse trading among the political parties and threats to some legislators.

“He (Governor) also alleged that the parties which are coming together to form the government are of different ideologies therefore formation of stable and responsive government is not possible. In this regard, Constitution bench of this court in a case S R Bomai v Union of India has held that even of where there is such situation, the proper course for the Governor is to interview such legislators and also to conduct floor test and then take a call as to whether majority has been proved by illegal means,” the petition says.

The petition claims that there is “no record” as to how Governor “reached to the conclusion that parties staking claim are of different ideologies”. “Even the subjective satisfaction of the Governor has to be based on some cogent material and cannot be arrived at on the basis of personal opinion/views of the Governor,” the petition says.

“If the allegations (made by Sajad Lone) are taken to be true, it speaks volumes about the intention behind the unconstitutional actions of the Governor,” the petition says.

Bill to speed up cases gets SAC nod

Jammu: The J&K State Administrative Council, under the chairmanship of Governor Satya Pal Malik, on Sunday approved the Code of Civil Procedure (Amendment) Bill – 2018, introducing provisions which will help in the disposal of cases in a time-bound manner. These provisions, according to an official spokesperson, relate to fixing of a time frame for filing of a written statement and forfeiture of right of defendant to file written statement after the prescribed period. Apart from this, a provision regarding costs has been attuned and a new provision of case hearing management is being introduced, the spokesperson said.—ENS

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