Constitutional and legal experts have clearly underlined that the use of social media tools such as WhatsApp, Twitter or Instagram is not only unconstitutional but has no legal validity. This renders as unconstitutional the claims that Peoples Demoscratic Party (PDP) chief Mehbooba Mufti and People's Conference chief Sajad Lone had made via Twitter and WhatsApp on Wednesday evening to form the government in Jammu and Kashmir.
Along with the debate raging in the country today on the constitutionality of Governor Satya Pal Malik's dissolution of the Assembly Wednesday night, equally important is a debate on the legality of the use of social media to stake claim to form the government.
While Mufti, the former Chief Minister of Jammu and Kashmir, cited a non-functional fax machine at the Raj Bhawan as a reason, Lone sent his claim on WhatsApp presumably to get the timing right as the other parties in the fray were rumoured to have been preparing for possible government formation.
This was a first-of-its-kind attempt by any political party to reach out to a governor to stake claim to form the government.
"In this case, both sides have defied conventional procedures of staking a claim to form a government as laid down by the Constitution," constitutional expert SK Sharma told Firstpost.
"As in the case of a resignation, where an MP or an MLA has to appear physically before the Speaker of the Assembly and handover the letter, in this case, too, one has to meet the governor in person, along with the letter of support from other parties or leaders as proof, to claim one's stake in forming government. In both cases, the formalities cannot be met by sending a letter by post or an email. The use of social media tools, which is a recent phenomenon, is out of question as it has not yet been officially permitted. First, the government has to allow the use of these technological modes of communication in such cases," he explained.
Jammu and Kashmir has been under Governor's Rule since June, after the BJP withdrew support to coalition partner PDP. The Assembly, which had two more years to go, has been in suspended animation since then.
Legal experts also share a similar view on the use and legality of social media tools in constitutional matters.
"Formation of a government is a serious issue. Both the Constitution and the Supreme Court have clearly addressed the procedures that should be followed. Jammu and Kashmir has been under Governor's Rule for the past five months. The Constitution doesn't prohibit the formation of an alternative government, but the process must adhere to the laid down provisions of the House and judgments passed by the Supreme Court. Neither is it mentioned anywhere, nor has any amendment been brought in to allow the use of WhatsApp and Twitter to stake claim to form a government," Supreme Court counsel Sandeep Mahapatra told Firstpost.
Referring to the SR Bommai case, where the Supreme Court, in its landmark verdict, had categorically ruled that the floor of the Assembly is the only forum that should test the majority of the government of the day, and not the subjective opinion of the governor, the counsel said that by violating the established norms, the imputing motive is unfounded.
"If one is so confident about numbers, one should seek an appointment with the governor and meet him with the letter of support from other parties, rather than texting messages using Twitter or WhatsApp. These social media tools can't be used on any pretext, as it has no legal standing at present," Mahapatra added.
After the enactment of the Information Technology Act, which recognises electronic communication as evidence, Indian courts have allowed parties in a litigation to serve notices through email, besides the traditional methods. However, no such provision has been made for constitutional matters like the formation of a government, or the resignation of an MP or MLA.
As for the courts, the Bombay High Court, in June, accepted the service of a notice in an execution application through WhatsApp after finding that the notice, served in the form of a PDF, was not only delivered, but the attachment was opened and its content read.
In March, a Delhi court had permitted a woman complainant to serve summons to her estranged husband in Australia related to a domestic violence case through WhatsApp to allow for speedy deliverance. The court had also observed that the "blue double tick on the message" showed that the summons had been delivered and read.
"A few high courts have recently allowed the use of WhatsApp to deliver summons and not for any other purposes. It has not been tested yet in constitutional matters like in this case of staking claim to form a government. Mehbooba Mufti claimed she had to use Twitter as the fax machine of the governor's house was non-functional. As both the governor and Mufti are in Srinagar, she should have taken an appointment with him to present her case as per the protocol," Mahapatra pointed out.
Constitutional and legal experts believe that both the PDP-National Conference-Congress combine or the People's Conference, backed by the BJP, had resorted to using social media instead of following the legal route as they were in a hurry to stake claim and checkmate the other.
Constitutional expert SK Sharma highlighted that WhatsApp was already inundated with fake news and messages, which seriously undermined the credibility of its use in constitutional matters. Therefore, until the use of social media is legalised, exercising discretion is advised.
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Updated Date: Nov 22, 2018 18:43:42 IST