Jammu and Kashmir Governor Satya Pal Malik has walked into legal minefield by dissolving Assembly already in suspended animation

The political atmosphere in Jammu and Kashmir was charged up soon after Governor Satya Pal Malik dissolved the state Assembly after both the PDP-National Conference-Congress combine and the People's Conference-led alliance approached him to stake a claim to form the government.

On 20 June, former Jammu and Kashmir governor NN Vohra had already placed the Assembly under suspended animation after the imposition of Governor's Rule in the state. On Wednesday, Malik dissolved the Assembly with immediate effect, taking four main factors into consideration, including "extensive horse-trading" and the "impossibility" of a coalition of parties with "opposing political ideologies" forming a stable government, the Raj Bhawan said in a statement Wednesday night.

When a House is in suspended animation, the MLAs continue to be members of the Assembly, but the governor cannot prorogue a session. As a result, the Assembly cannot pass any law, and if the need for the same arises, Parliament steps in. The ministers continue to be in office but practically without any ministerial work.

File image of Jammu and Kashmir governor Satya Pal Malik. Twitter/@rashtrapatibhvn

File image of Jammu and Kashmir governor Satya Pal Malik. Twitter/@rashtrapatibhvn

In the case of Jammu and Kashmir, the Mehbooba Mufti cabinet had resigned, as a result of which the state had no ministers after the BJP-PDP alliance fell apart.

Section 92 of the Constitution of Jammu and Kashmir empowers the state governor to "make such incidental and consequential provisions as appear to the governor to be necessary or desirable for giving effect to the objects of the proclamation, including provisions for suspending in whole or in part the operation of any provision of this Constitution relating to any body or authority in the state".

The law also says that "nothing in this section shall authorise the governor to assume to himself any of the powers vested in or exercisable by the high court or to suspend in whole or in part the operation of any provision of this Constitution relating to the high court", thus bringing the governor's decision under the purview of judicial review.

This is akin to Article 356(C) of the Constitution of India.

In case of the failure of constitutional machinery in the state, Article 356 (C) gives the President of India the authority to "make such incidental and consequential provisions" that appear to be "necessary or desirable", including "provisions for suspending in whole or in part the operation of any provisions of this Constitution relating to anybody or authority in the state, provided that nothing in this clause shall authorise the president to assume to himself any of the powers vested in or exercisable by a high court, or to suspend in whole or in part the operation of any provision of this Constitution relating to high courts".

A few years ago, a similar political imbroglio arose in Delhi, when voters gave a fractured mandate in May 2016. According to The Hindu, constitutional experts had then said that the Lieutenant Governor had "the choice of recommending the suspended animation of the Assembly only if he feels there is a possibility of government formation in the near future". Constitutional expert PDT Acharya had then said that the House would have to be dissolved "if the BJP or the AAP does not come forward to form a government and prove its majority in the Assembly".

Following the dissolution of the Assembly, a fresh election would have to be held within six months or as the situation may deem congenial for such electoral exercise.

Article 356 also says: "The Proclamation shall cease to operate at the expiration of 30 days from the date on which the House of the People first sits after its reconstitution, unless before the expiration of the said period of 30 days, a resolution approving the Proclamation has been also passed by the House of the People."

The problem in Jammu and Kashmir is that the governor did not allow the alliance that claimed to have the numerical strength of more than 44 MLAs — the required strength in the Assembly to form the government — and prove its majority in the House, as is mandated by law.

In September 1998, the then president KR Narayanan had refused to endorse the recommendation of the Atal Bihari Vajpayee Cabinet  to dismiss the Bihar government under Rabri Devi and place the Assembly under suspended animation. Narayanan reportedly cited "the fact that the Rabri government had just won a post-walkout 190-0 trust vote in the 321-strong state Assembly, and thus invalidated a case of constitutional breakdown".

Governor Malik, with his sudden act of dissolving the Jammu and Kashmir legislature, has exposed himself to judicial scrutiny. While overturning former Arunachal Pradesh governor Jyoti Prasad Rajkhowa's decision to prepone the Assembly session, the Supreme Court, on 13 July, 2016, while referring to provisions under Article 163, had said: "Such exercise of independent judgment can only be questioned by way of judicial review." The "independent judgment" it was referring to was of the state governor in this case.

PDP chief and former chief minister Mehbooba Mufti, soon after her government collapsed in June, had sought fresh polls and requested the dissolution of the Assembly, but this finally happened only after she sought to offer her support to a PDP alliance with the Congress and National Conference willing to form the government.

It isn't clear whether Malik, a former BJP member, has risked his days at the Raj Bhawan to favour his earlier party, but the brazenness of his action gives this very impression, which is not in consonance with the propriety of a gubernatorial office.

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Updated Date: Nov 22, 2018 13:54:24 IST

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