The Imposition of President’s Rule in J&K is Arbitrary and Unconstitutional

Satyapal Malik’s logic simply doesn’t hold. It is for the state assembly to decide whether a coalition will last or not, not the governor.

Governor Satyapal Malik’s dissolution of the Jammu and Kashmir legislative assembly and recommendation of President’s rule in the state subverts democracy and federalism.

On November 21, People’s Democratic Party (PDP) leader Mehbooba Mufti claimed the support of 56 legislators in an 87-member house – well past the 44 majority mark. Her claim was contested by Sajjad Lone, who said he had the support of 25 BJP legislators in the bag and the backing of 18 other unidentified legislators.

Clearly, Mufti should have been called in as chief minister and made to test her majority on the floor of the house as decreed by the Supreme Court in its Bommai decision (1993). But, that was not to be. The BJP-appointed governor rejected her claim, essentially on two grounds. First, that the coming together of “such parties in a grouping is nothing but an attempt to gain power rather than to form a responsive government”. The second was that horse trading would vitiate the political process and democracy. Both grounds go well beyond the governor’s remit.

The power to impose President’s rule is an emergency power in Article 356 of the Indian constitution and Section 92 of the J&K constitution. We should note that this is the third attempt by the BJP to impose President’s rule in a state where its own political plans came unstuck; Arunachal Pradesh, Uttarakhand and now Jammu and Kashmir. 

Previous instances of President’s rule

Following assembly elections in Goa, Manipur and Meghalaya, the BJP governors in these states had no qualms about rejecting the claims of the single largest party in favour of the the saffron party.

BJP governors are ‘hitmen’ for the party. Given the existence of a clear majority against the BJP in J&K, the only way to defeat Mufti’s claim and elect Sajjad Lone would have been to induce MLAs to cross the floor.

Evidently, Lone and the BJP were going to ‘poach’ MLAs from the other parties. So, a BJP government in Delhi and the BJP in J&K set an ultimatum to the governor: Invite us because we may have the numbers with floor crossings. An honest governor, on his own reasoning, would have told the BJP that their claim was not only tenuous but wrong. Instead, the governor effectively decreed that it would be BJP or nothing, whatever his de jure justification may be.

The governor’s other reason ­– that a coalition of party groupings was wrong – is itself wrong. Post-election platforms are permissible. The governor speaks of “responsive (responsible) government”. Is a government without a council of ministers a responsible government? Being responsive to an unelected governor in sync with Modi’s BJP at the Centre is no substitute for a democracy responsible to the people. The imposition of President’s rule in J&K is arbitrary and unconstitutional.

Also read: Plan for Grand Coalition in J&K Prompts Governor to Dissolve Assembly

The reason why the assembly was kept alive for six months was to allow a responsible government based on coalitions to break the impasse. The test is: can a feasible government be formed. The answer to this lies not in Raj Bhawan but on the floor of the assembly.

In the present case, it is the governor who himself created a case for President’s rule. The case against President’s rule is rightly overloaded. Recall Bommai’s case (1994). In the Karnataka part of this case, President’s rule was declared mala fide because the governor did not make an effort to install an alternative ministry. The facts are different, but the principle is the same.

Bommai was also involved in the Nagaland case which is closer to the present situation, where the proclamation of President’s rule was declared unconstitutional after the chief minister resigned but the alternative claim of majority support was not entertained. This is closer to the J&K case except that Mufti resigned when the BJP pulled the plug but claimed a majority within the six-month period. I have doubts about some aspects of Bommai, but they are irrelevant to the present controversy.

After Bommai, recall how the president returned the suggestion of President’s rule in UP in 1997 to the cabinet and President’s rule was not imposed and the issue was decided in chief minister Kalyan Singh’s favour on the assembly floor. This was done again in Bihar in 1998, but the Central government delayed matters. Eventually, the Rajya Sabha was not willing to sustain president’s rule and Rabri Devi was invited to form the government but had to prove its majority on the floor which was approved by the Patna high court in Sapru Jayakar vs Union.

In another Bihar case decided by the Supreme Court on January 24, 2006, a majority in the constitution bench decided that the governor’s discretion is to be decided on objective facts recalling the Karnataka and Nagaland examples from Bommai’s case. The court’s inescapable inference was that the governor cannot act in a mala fide manner, preventing a claim to form a government. In some cases, the Supreme Court has ordered an assembly test – most recently in Karnataka, where the BJP candidate resigned because he could not face a floor test.

Constitutional obligations and the way forward

Constitutional authorities are bound by an institutional morality before we get into the larger question of constitutional morality declared by the Supreme Court in a number of cases – including the Delhi Democracy case of 2018.

There are four authorities involved here: (i) the governor (ii) the President of India (iii) the Union cabinet and (iv) parliament. The reductionist view is that all these authorities can be bypassed except parliament – which will decide on brute party strength. The reductionist view weakens the constitution. The first port of call is the governor who must decide on constitutional principles not dictated by his whim or Delhi. Otherwise, the governor is both poodle and saboteur.

The second institution is the president who can ask the cabinet to reconsider any decision on a ‘once only’ basis, which was done in the Bihar case. The cabinet has its own role to play. It cannot be dominated by Modi. An honest discussion must take place – and, frankly, the full discussion must be placed before the president and eventually the people. This transparency is necessary. Finally, parliament cannot just turn to a vote after a limp discussion.

Also read: Over Twitter and Fax, An Impossible Alliance is Born – And Swiftly Attacked

In my book: President’s Rule in the States (1979) I show how the issues were keenly debated when it came to the imposition of President’s rule in Kerala in 1959. However, this practice was abandoned for later impositions.

Finally, there are the courts, which were not as supine even before Bommai, which made such a huge difference.

Each authority has a role to play and President’s rule or even the dismissal of a ministry would be struck down as arbitrary if done without reference to the democratic process. Both, the dissolution of the assembly and the imposition of President’s rule, must be challenged in the Jammu and Kashmir high court or the Supreme Court directly, and bench formation should not defeat objectivity.

In sum:

(i) The six month suspension of the legislature was to facilitate a return to assembly-based democracy;

(ii) Within six months, a new coalition claimed a clear majority;

(iii) Its claim should have been accepted and tested on the floor of the House;

(iv) The BJP’s claim, through Sajjad Lone, was obviously based on poaching from other parties against the letter and spirit of the anti-defection law;

(v) An unfounded BJP claim before a BJP-appointed governor, obviously on instructions from a BJP-led Union government in Delhi, represented a conspiracy against constitutional principles;

(vi) If the cabinet imposes president’s rule, the president should reject it and return the request albeit on a once only basis;

(vii) The case has to go to court on both the issue of dissolution and president’s rule.

Eventually, President’s rule itself must be abolished. If Central governments can survive without President’s rule, so can the states. Central rule was a British-invented device to get rid of native governments. In any case, when Indira Gandhi revelled in President’s rule, the Jan Sangh and the BJP saw this as evil. To copy evil by evil is not tenable except in a dictatorship. The test is whether constitutional governance can continue. The answer is it must.

Rajeev Dhavan is a senior advocate in the Supreme Court