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Monday, September 27, 2021

An ill wind in the Valley

Governor Malik’s decision to dissolve J&K assembly is constitutionally flawed and politically erroneous.

Written by Faizan Mustafa |
Updated: November 23, 2018 7:02:18 am
An ill wind in the Valley J&K Governor Satyapal Malik at his residence in Delhi. (Photo: Praveen Jain)

A nine-judge bench of the Supreme Court in the SR Bommai (1994) case had observed that the power under Article 356 is extraordinary, must be used sparingly and should never be used for political gain for the party in power at the Centre. No Congress governor ever paid heed to these words of wisdom. And now the BJP, which used to condemn the Congress for misuse of the governor’s office, has proved that it is not “a party with a difference” — in addition to all the evils of the Congress, it is polarising and majoritarian as well.

After the imposition of President’s Rule on Republic Day in Arunachal Pradesh and invoking of Article 356 just a day prior to the trust vote in Uttarakhand, Governor of Jammu and Kashmir Satya Pal Malik within minutes of the claim of formation of government by the PDP, NC and Congress, dissolved the assembly. Strangely, the reason cited by the governor is that political parties of opposing ideologies were coming together to form the government.

This reasoning is flawed for two reasons. First, the governor has no power to examine the ideologies of the political parties prior to inviting them to form government. No party that does not have faith in the Constitution of India can be registered by the Election Commission and therefore the option of doubting the credentials of registered political parties is not available to anyone. Second, how can the governor oppose the coming together of parties of opposing ideologies when the BJP itself was in a coalition government with the PDP for more than two years? Or is the governor, by implication, admitting that the PDP and BJP are ideologically on the same page? Why was the BJP-PDP alliance termed historic if the PDP was a “terror-friendly” organisation? If the BJP is serious in its allegations, it should seek de-registration of the PDP as a political party.

In fact, there is more in common between the PDP, NC and Congress — two are regional parties committed to the cause of Kashmir and reflect the aspirations of the people. All three favour autonomous status of Kashmir and retention of Article 370. All three are unanimous in their views on Article 35A. Moreover, did not the BJP form government with the BSP twice in UP, even though the two parties are ideologically poles apart?

Even in pre-Independence times, the Hindu Mahasabha and Muslim League had formed a coalition government in a few provinces. Thus, parties that fight against each other can legitimately form government and the only responsibility the governor has is to satisfy himself that the new formation has the numbers. The governor himself, after taking over, had promised that he would not dissolve the House and would explore the formation of a popular government. It is an open secret that the BJP has been making efforts to break the PDP and form the first BJP-led government in Kashmir.

The speed with which the governor dissolved the House clearly shows mala fide intentions and now this dissolution will face judicial scrutiny. BJP-appointed governors have a track record of losing in the Supreme Court. Both in Arunachal Pradesh and Uttarakhand, popular Congress governments did return to power and in Karnataka, the BJP government within days of its swearing-in lost the confidence vote. In each case, the court went against the governor. The partisan and authoritarian attitude of a BJP appointed Lieutenant Governor of Delhi, too, was disapproved by the five-judge bench of the Supreme Court in its July 4 landmark judgment.

No court has so far held any government accountable for violating the law laid down by the apex court and revived a dismissed state government. But in the Bommai case, the court, following the Nawaz Sharif judgment of the Pakistan Supreme Court, did say that it has such a power and it may revive the dissolved House. If an assembly is revived, it will be a huge loss of face for the BJP. Of course, our courts do not decide such matters in a time-bound manner or interfere if the election process gets underway in the meanwhile.

Even politically, the BJP has made an error of judgment as now it would be seen as an anti-democratic party. It has unnecessarily made the Opposition a martyr. The abrupt dissolution was bad strategy. The governor should have bought time by asking the Opposition to submit a signed list of legislators supporting it. He could have said that he is consulting Constitution experts and examining the issue of stability of the government. Ideally, he should have allowed the coalition government to collapse under its own weight. It would have been difficult for the three parties to agree to a common minimum programme.

It seems both the PDP and NC are relieved at the dissolution as there is no more threat of floor-crossing at the behest of the BJP and they need not face the herculean task of portfolio division and running of government. By keeping the assembly under suspended animation in the last five months, the BJP, with 25 legislators, was able to put pressure on the leaders of the two regional outfits. In any case, under the Jammu & Kashmir Constitution, Governor’s Rule was coming to an end on December 19, and President’s Rule could have been imposed in a more seamless manner.

It seems BJP-appointed governors are not interested in what the apex court had termed as the goal of attainment of the “glory of constitutional democracy” and “constitutional renaissance” through representative democracy in which governments should be run by the people’s elected representatives rather than nominated governors. Dissolution of the assembly to prevent the formation of a popular government shows a lack of belief in parliamentary democracy, which is the basic structure of the Constitution.

Dissolution of the assembly may be legal in strict terms if the court does not find it mala fide, but it is certainly contrary to constitutional morality. The governor has indeed gone against constitutional trust as there is nothing like absolute discretion. Absolute discretion is the anti-thesis of constitutionalism. Satya Pal Malik should have recalled that in quashing the imposition of President’s Rule in Arunachal Pradesh, the apex court had criticised Governor Rajkhowa by describing the happenings in the state as “a thrashing given to the Constitution and a spanking to governance”.

The writer is vice chancellor, NALSAR University of Law, Hyderabad

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