There is simply no legal or constitutional justification for Governor Satya Pal Malik’s sudden decision to dissolve the Jammu and Kashmir Assembly. The governor has the power to dissolve the Assembly under Article 53(2)(b) of the Constitution of Jammu and Kashmir. But this provision is identical to Article 174(2)(b) of the Indian Constitution and, therefore, the principles laid down by the Supreme Court in similar situations involving other states would apply here as well.
This is the second time this year that a governor appointed by the Narendra Modi administration has acted in an unconstitutional manner when it comes to government formation in a state.
As I have pointed out elsewhere, such actions are hardly unprecedented. Jammu and Kashmir has been witness to more than its fair share of such Centrally sponsored meddling in its politics. Regrettably, there seems to be a multi-partisan consensus in Indian politics that governors are just the agents of the Union government and should be expected to meddle in state politics when it suits the Centre. It’s quite ironic that should the Peoples Democratic Party, National Conference or Congress choose to challenge Malik’s decision, they will rely on a judgement delivered against the previous Manmohan Singh government, of which they were all part.
The legal position has been well settled since the Supreme Court delivered its judgement in SR Bommai vs Union of India, 1994: the governor cannot dissolve the Assembly for any reason they deem fit. Their decision should be based on “objective material” indicating it is impossible to form a government.
What is this “objective material”? The Supreme Court delved into this question while deciding the matter of the dissolution of the Bihar Assembly by Governor Buta Singh in 2005. The court’s judgement, Rameshwar Prasad vs State of Bihar, is categorical, and the relevant passage bears quoting in full:
“It is one thing to come to the conclusion that the majority staking claim to form the Government would not be able to provide stable Government to the State but it is altogether different thing to say that they have garnered majority by illegal means and, therefore, their claim to form the Government cannot be accepted. In the latter case, the matter may have to be left to the wisdom and will of the people, either in the same House it being taken up by the opposition or left to be determined by the people in the elections to follow. Without highly cogent material, it would be wholly irrational for constitutional authority to deny the claim made by a majority to form the Government only on the ground that the majority has been obtained by offering allurements and bribe which deals have taken place in the cover of darkness but his undisclosed sources have confirmed such deals.”
Rameshwar Prasad’s case is relevant in the context of Jammu and Kashmir given the very similar situation. After the 2005 Assembly election in Bihar, no party or alliance had the majority. The National Democratic Alliance had won 92 seats, as many as the Rashtriya Janata Dal and the Congress had together, with the halfway mark being 122. The National Democratic Alliance claimed they had the support of independents as well, and staked claim to form the government. Instead of giving them an opportunity to prove their majority on the floor of the House, Buta Singh dissolved the Assembly and imposed President’s rule. The Supreme Court subsequently set aside the Assembly’s dissolution, but by then fresh elections had been announced and the court did not stop the process.
Malik’s reasons for dissolving the Jammu and Kashmir Assembly are unconvincing. They are based purely on his subjective (and partisan) assessment of the situation. Moreover, when a set of parties had already indicated its willingness to stake a claim to form the government, it was incumbent upon the governor to examine the matter objectively. If he had any doubts, he should have ordered them to take a floor test.
Some of the reasons he has offered to justify his decision are not even original. In fact, the Supreme Court dealt with identical “reasons” in the Rameshwar Prasad case. Its judgement said this about such “reasons”:
“There cannot be any presumption of allurement or horse-trading only for the reason that some MLAs expressed the view which was opposed to the public posture of their leader and decided to support the formation of the Government by the leader of another political party. The minority Governments are not unknown. It is also not unknown that the Governor, in a given circumstance, may not accept the claim to form the Government, if satisfied that the party or the group staking claim would not be able to provide to the State a stable Government. It is also not unknown that despite various differences of perception, the party, group or MLAs may still not opt to take a step which may lead to the fall of the Government for various reasons including their being not prepared to face the elections. These and many other imponderables can result in MLAs belonging to even different political parties to come together. It does not necessarily lead to assumption of allurement and horse-trading.”
An additional reason, given this is Jammu and Kashmir, is the allegation of Pakistan and its agents influencing the Valley’s political parties into staking claim to form the government, without actually providing any evidence for it.
How the People Democratic Party chief Mehbooba Mufti communicated the letter of support is a red herring. Whether every one of the MLAs she claimed would support the proposed government actually backed her was not relevant either. The only question the governor should have considered was whether it was possible to form a government with the numbers mentioned. Any doubts he had about the actual extent of support for the proposed government could have been addressed by simply ordering a floor test within 24 hours to minimise chances of horse-trading, or coercion. But having learnt nothing from the law or past experience, Malik chose to dissolve the Assembly and plunge the state into a political and constitutional crisis.
It remains to be seen if the Supreme Court will intervene in time to prevent a fresh election. The apex court is usually loath to replace “the wisdom and the will of the people” with its own, and unless a compelling reason is placed before it to restore status quo ante, it may not revive the Assembly even if it delivers a judgement against the governor. For an instance where a court refused to allow a fresh election and restored an illegally dissolved Parliament, we only need to look at what happened in Sri Lanka earlier this month.
Whatever the Supreme Court chooses to do or not do, this episode is yet another reminder that it is probably time to rethink the whole idea of a governor appointed by the Centre. Far from enabling some sort of constitutional rule, governors have consistently been party to all sorts of unconstitutional and unethical moves to undermine democracy and federalism in India. Malik has proved no different.