As the miasma around Article 370 pervades the public discourse, most conversations appear to revolve around the issues of broken promises, self-determination and lack of legislative consent. Of course, reams of processed wood pulp have attempted to navigate the readers through the jungle that is constitutional law, and for the most part, it appears that while integration of the state of Jammu and Kashmir with the federation may be unexceptionable, it is perhaps the process adopted that has raised questions (and hackles). The object of the present article is to look, not at the presidential orders from earlier this month, but at what formed the foundation of the entire exercise — the imposition of President’s Rule in December 2018.
Apropos the article, ‘On a Shaky Foundation’ (IE, September 4) by Gopal Sankaranarayanan — a lawyer for one of the petitions challenging the dilution of Article 370, Soayib Querishi vs Union of India — the spokesperson, Ministry of Home Affairs, says: President’s rule was applied under Article 356 on 19/12/18. Original provisions under Article 356 allow it to exist for six months from the date of the second of the resolutions approving the proclamation. The subsequent changes to Article 356 (4) through the 42nd and 44th Constitutional amendments were not made applicable to Jammu and Kashmir. Therefore, the original provision of Article 356 (4) was applicable to Jammu and Kashmir. The proclamation dated 19th December 2019 was approved by Lok Sabha on 28th December 2018 and Rajya Sabha on 3rd January 2019. Therefore, the proclamation of the President’s rule was due to expire on 3 July 2019, ie six months from 3rd July 2019. Lok Sabha on 28/6/19 and Rajya Sabha on 1/7/19 approved the continuance of the proclamation of the President’s Rule for a further period of six more months beyond 3rd July 2019. Thus this proclamation was within the provisions of Article 356 as applicable to Jammu and Kashmir.
Article 356 of the Constitution allows the President to impose his rule on a state where he is satisfied that governance is not in accordance with the Constitution. The proclamation he/she issues in this regard can also provide for the vesting of the powers of government in the President, that of the legislature in Parliament and most significantly, the suspension of the provisions of the Constitution that would apply to a body or authority in the state. In our Westminster form of government, this essentially means the central government can abuse Article 356 to impose its will on states where inconvenient opposition parties are in power. All our leaders have been guilty of its abuse, probably none more so than Indira Gandhi who is solely responsible for more than half of all its invocations since 1950.
Anticipating this misuse then, the Constituent Assembly provided two principal safeguards in Article 356: First, that every proclamation would be valid for only two months; and second, if resolutions approving the proclamation were passed by both Houses of Parliament, then it would be valid for six months, which could be extended up to a maximum period of three years with parliamentary resolutions on each occasion. For the present discussion, it would be pertinent to consider the exact words of Article 356(4): “A Proclamation so approved shall, unless revoked, cease to operate on the expiration of a period of six months from the date of issue of the Proclamation.”
As far as Jammu and Kashmir is concerned, the President first issued his Proclamation on December 19, 2018, vesting the powers of the government with himself and those of the legislature with Parliament. This was followed on January 3 by the approval of the Houses of Parliament. Notably, this approval gave the Proclamation a life of six months with effect from December 19, 2018 (not from January 3, 2019). Therefore, if it were not extended before June 18, the Proclamation in the solemn words of the Constitution, would “cease to operate”. In 1994, a nine-judge bench of the Supreme Court in the S R Bommai case had observed that the necessary consequence of such a lapse of the Proclamation would be that the “status quo ante revives”. It emphasises: “The Legislative Assembly which may have been kept in suspended animation also springs back to life”.
However, it appears that the government missed the bus.
Imagining that the cut-off date was July 2, resolutions were tabled to extend the Proclamation on June 28 in the Lok Sabha and July 1 in the Rajya Sabha, thereby purporting to renew the six-month period from July 3. This, as Article 356(4) clearly shows, was impermissible, because the Proclamation had ceased to have effect on June 18 itself. The only option now was a fresh Proclamation to be issued by the President on the same terms as the earlier one — imagine your passport or driver’s licence, but without a grace period for renewal, thereby requiring you to apply afresh.
Neither the notifications by the President on August 5 and 6 under Article 370, nor the exercise by Parliament to reorganise the state as two Union Territories were carried out with the approval of the J&K state legislature. In fact, both the nation’s executive and the legislature proceeded as if the legislature did not exist, singularly on the misapprehension that the Proclamation was still in force. The consequence of this gaffe appears to be grave — gubernatorial privilege has been peculated and the creation of new territories to be directly governed by the Centre has undermined the federal canon. India and its government have had to endure obloquy, both from within and without, and a frustrated neighbour has drummed up visions of nuclear war.
While the integration of the land and its people is necessary, it is cardinal that the world’s most resplendent democracy heed constitutional process, because without it, we are back in the dark days of the Emergency.
This article first appeared in the print edition on September 4, 2019 under the title ‘On a shaky foundation’. The writer is senior advocate, Supreme Court of India.