A Supreme Court advocate on Tuesday pointed out that a “delay” by the Centre in extending the President’s rule in Jammu and Kashmir in June could put its decision to change the state’s constitutional status on shaky ground.
In an article in The Indian Express, advocate Gopal Sankaranarayanan said the government moved a resolution in the Lok Sabha to extend President’s rule in the state on June 28, which was 10 days after it should have ceased to operate. He also cited a Supreme Court judgement to imply that the state’s Legislative Assembly should have come back to life since the President’s rule was not extended in time.
The proclamation imposing President’s rule in Jammu and Kashmir was issued on December 19, 2018, and both Houses of Parliament approved it on January 3, 2019.
According to Article 356(4) of Constitution, “a proclamation so approved [by both Houses of Parliament] shall, unless revoked, cease to operate on the expiration of a period of six months from the date of issue of the Proclamation”. But the government possibly thought it would expire six months after it was approved in Parliament, Sankaranarayanan noted. The state being under the President’s rule was crucial to the methods used by the Centre to revoke its autonomy on August 5.
“Therefore, if it were not extended before June 18, the Proclamation in the solemn words of the Constitution, would ‘cease to operate’,” Sankaranarayanan said.
Due to the Centre’s “gaffe”, it tabled resolutions to extend President’s rule in Jammu and Kashmir in the Lok Sabha on June 28 and in the Rajya Sabha on July 1, Sankaranarayanan wrote.
He cited a 1994 judgement by the Supreme Court that said that if the President’s rule proclamation lapses, the “status quo ante revives”. The advocate cited the court as saying: “The Legislative Assembly which may have been kept in suspended animation also springs back to life.”
Therefore, the Centre’s decisions on August 5 were made without the approval of the state legislature, “under the mistaken impression that President’s rule was still in force in the state”, Sankaranarayanan wrote.
“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,” the lawyer added.
However, a Ministry of Home Affairs spokesperson dismissed Sankaranarayanan’s arguments, saying the original provisions of Article 356 applied to Jammu and Kashmir since the subsequent changes made to the law through the 42nd Constitutional Amendment and the 44th Constitutional Amendment were not made applicable to the state. The original provisions allow a proclamation to exist for six months from the date of the second of the resolutions approving it, the spokesperson added.
Governor’s rule was first imposed in the state on June 20, 2018, after the Bharatiya Janata Party pulled out of its alliance with the Peoples Democratic Party. Six months later, President’s rule was proclaimed.
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