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Everyone should be given a chance in J&K

File photo of the PDP's Mehbooba Mufti and the NC's Omar Abdullah. Photograph:( Zee News Network )

Delhi, India Nov 23, 2018, 01.23 PM (IST) Written By: Ashok Bhan

Governor Satya Pal Malik dissolved the Jammu & Kashmir assembly on Wednesday night. Prior to the dissolution, he is said to have consulted Prime Minister Narendra Modi, BJP president Amit Shah and a few of PM’s advisers.

Peoples Democratic Party (PDP) president Mehbooba Mufti, according to media reports, is reported to have written to the Governor that she could not reach Raj Bhawan, but she tweeted in public domain, claiming that she had the support and backing of 56 MLAs. Soon after, Sajjad Lone, with only two MLAs in the assembly, showed his interest by saying that he had the support of BJP and over 18 other independent MLAs.

The legal position under Section 53 of the J&K Constitution is that the action of the Governor does not need to be ratified by Parliament. It is only after the expiry of six months that President Rule can be imposed that needs Parliament’s ratification. The Governor has said that the reasons for his decision to dissolve the assembly that had a tenure till 2020, were reports of extensive horse trading and possible exchange of money in order to secure the support of legislators, thus jeopardising the fragile security scenario in the state. The Governor further said there is the impossibility of forming a stable government by coming together of political parties with opposing ideologies.

 The BJP, a partner of PDP until a few months ago, supported the Governor’s decision, saying that “J&K needs a firm administration to deal with terrorism and not a combination of terror-friendly parties”. Further, BJP leaders commented, that “the best option in such a scenario is to go in for a fresh election at the earliest. This assembly cannot produce a stable government.”

Governor Malik has allowed his own reputation to be imperilled along with the impact he was reportedly making with Kashmiris by promoting his healing-touch policy, making efforts to reach out for peace and dialogue. Malik’s action has lowered the prestige of the gubernatorial office in a fragile and sensitive state of the Indian Union. He is an experienced politician and should have exhausted all the normal constitutional and democratic norms set out by the apex court. 

Since the BJP-PDP government was dissolved in June, the Jammu and Kashmir assembly was kept in suspended animation and Governor’s Rule imposed in the state. Malik was not bound by the convention of recommending the dissolution of the assembly on advice of the chief minister and state cabinet, because neither existed. The dissolution deprived the elected legislators the opportunity to form a government in Jammu and Kashmir again.

Important political and constitutional issues lie at the heart of Governor’s action. Legally and constitutionally, Malik can say he was well within his rights to dissolve the assembly. Legitimately, power was exercised, but it was done in the pursuit of illegitimate goals. The timing of the dissolution makes it clear that Malik moved under orders — willingly or otherwise — to forestall the formation of a government that would prove inimical to the BJP’s calculations. By dissolving the J&K assembly, he has ignored admittedly dodgy precedents set elsewhere.

Take Bihar. In 2015, an alliance of the Rashtriya Janata Dal, Janata Dal (United) and Congress had swept the state elections and formed a coalition government. In July 2017, barely two years later, in a move clearly orchestrated by outgoing and incoming chief minister Nitish Kumar, he disbanded the “grand alliance” by resigning as chief minister and was sworn in hours later in the same position, but with the BJP as his new ally. No gubernatorial compunctions seemed to have been experienced in showing the green light to this manoeuvre — a blatant betrayal of the 2015 mandate. In Goa, the Congress won 17 of the 40 assembly seats and the BJP, 13. The BJP got nine legislators on its side — three each from the Maharashtrawadi Gomantak Party and Goa Forward Party and three independents. Armed with a list of 22, it was invited to form a government, which it duly did. No one expressed any reservations whatsoever. 

Now take Jammu and Kashmir. When the PDP and BJP decided to form a coalition government, no questions were raised by the governor about this decidedly surreal alliance. If you really stretch yourself, you can find some common ground between the PDP and National Conference — they are both Kashmiri parties, both are committed to some notion of Kashmiri exceptionalism and autonomy and share the same kind of social constituencies. Also, the PDP and Congress have been allies in the past.

But by what stretch of imagination did the then Governor of Jammu and Kashmir decide that the PDP and BJP, who are ideologically and programmatically on absolutely opposite ends of the spectrum, could form a “stable” government? The imagination boggles. It is reported that the central government views this coalition as detrimental to the political situation in Jammu and Kashmir. Of course, it does. But not because the “arrangement” would be riven by “contradictions”.

What will transpire now is not yet clear. Someone or the other could move court against the dismissal of the assembly, which makes logical sense. The Congress, National Conference, PDP and other political parties may be content to wait things out for another six months, by which time state elections will have to be held.
 

(This article was originally published on The DNA. Read the original article)

(Disclaimer: The opinions expressed above are the personal views of the author and do not reflect the views of ZMCL)

Ashok Bhan

The author is Senior Advocate, Supreme Court

Story highlights

The dissolution deprived the elected legislators the opportunity to form a government in Jammu and Kashmir again.