In exercise of the powers conferred by clause (b) of sub-section (2) of section 53 of the Constitution of Jammu and Kashmir, the Governor Mr. Satya Pal Malik dissolved the Legislative Assembly of J&K which was being kept under suspended animation from June 2018, when in a surprise move the BJP pulled out of the three-year-old ruling coalition with the People’s Democratic Party (PDP). All the political parties of the State of J&K then requested the Governor that the state assembly should be dissolved immediately in order to hold fresh elections but it was not given any heed.
But under serious apprehension that Mehbooba Mufti was attempting to form an alliance with the Congress and National Conference (NC) and very soon would stake claim to form the government, Raj Bhawan on the instructions of the Union Government dissolved the legislative assembly. Politics once again conquered constitutionalism.
The Governor later vindicated his action stating that newspaper reports and other reports collected through meetings with various party functionaries/ leaders indicated a trend to gain over elected representatives of the people and various elements within the party and also outside the party being approached through various allurements like money, posts etc., which was an alarming feature.
According to the Governor, the situation was fast approaching a scenario wherein if the trend was not contained immediately the consequent political instability would further give rise to horse trading being practiced by various political parties/groups trying to lure elected MLAs. It was not possible to encompass the situation without giving the people another opportunity to give their mandate through a fresh poll.
It appears prima facie that the action of the Governor is mala fide in law; irrational and without any cogent material to support the conclusion arrived at. The apprehension of the Governor was merely based on ipse dixit and hence it was not sustainable in law. The Governor is under a constitutional obligation to explore the possibilities of formation of a Government. This could be achieved by talking to the elected representatives and political parties in the State.
When two overtly opposite and ideologically incongruent parties like BJP and PDP can come together to form the government, the possibilities of PDP, Congress and National Conference coming nearer was not at all unforeseen or perverse. The most prudent measure on part of His Excellency would have been to allow parties to explore the possibilities to form the government and then to test their claims on the floor of the House.
That alone is the constitutionally designed forum for seeking openly and objectively the claims and counter-claims in that behalf. But, the hot haste and hustle with which he acted was not expected from a high constitutional office like the Governor and it undoubtedly shows mala-fide on his part.
The reference to horse trading or allurements made by him was not based on any verified materials. Since such material would be exclusively within the knowledge of the Governor and the Union Government, in view of the provisions of Section 106 of the Evidence Act, the burden of proving the existence of such material would only be on the Governor and Union Government, if the matter is brought before the court.
This kind of politically motivated action of the Governor was condemned by the Supreme Court in S.R. Bommai and Ors. v. Union of India and Ors. (1994) and Rameshwar Prasad vs. Union of India (2006). In Council of Civil Service Unions vs. Minister for the Civil Service (1984), a case relied upon by Supreme Court many a times, deliberating on the aspect of irrationality of this kind, Lord Diplock observed: “it applies to a decision which is so outrageous or in defiance of logic or of accepted moral standards that no sensible person who had applied his ‘mind to the question to be decided, could have arrived at it.” The validity of impugned notification dissolving the Legislative Assembly, if examined in the light of law laid down in Bommai’s case is clearly unconstitutional and deserves to be set aside and the status quo ante may be directed.
Constitutionalism or the constitutional system of Government detests absolutism. It is premised on the Rule of Law in which subjective satisfaction is substituted by objectivity provided by the provisions of the Constitution. The inability of Governor Mr. Satya Pal Malik to take an independent, judicious and constitutionally correct decision once again brought this office under unadorned disparagement and betrays the high hopes of the framers of the constitution.
Former President of India Dr A.P.J. Abdul Kalam while emphasising on the relevance of recommendations of the Sarkaria Commission vis-à-vis office of Governor observed that, “While there are many checks and balances provided by the Constitution, the office of the Governor has been bestowed with the independence to rise above the day-to-day politics and override compulsions either emanating from the central system or the state system.” Apart from massive election expenditure to the State and the candidates, the forced recurrent elections would belie the people’s belief and faith in parliamentary democracy and constitutionalism.
The democratic values survive and become successful only where the people at large and the persons-in-charge of the institution are strictly guided by the constitutional parameters without paving the path of deviancy and reflecting in action the primary concern to maintain institutional integrity and the requisite constitutional restraints. We are yet to devise such a constitutional and democratic culture.
The writer is Associate Professor of Law, National Law University Odisha.