35A: Why Governor Shouldn’t Contest The Case Challenging The President?

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by Hakim Irfan-ul-Haq

On August 31, a petition challenges article 35A, filed by an NGO (We the citizens) was listed for hearing before the Supreme Court. It gives the Jammu and Kashmir legislature a complete freedom to decide who are permanent residents of the state and confer on them special rights in public sector jobs, acquisition of property in the state, scholarships and other public aid and welfare.

Chief Secretary recieved governor at Civil Secretariat Srinagar.

The provision mandates that no Act of the legislature coming under it can be challenged for violating the constitution or any other law of the land. The article was incorporated into the constitution in 1954, by a Presidential Ordinance Order of the then president Rajendra Prasad on the advice of the Jawaharlal Nehru’s cabinet. The presidential order was issued under article 370 (1)(d) of the constitution.

The next date of hearing before the Supreme Court is in January 2019. As the outcome of the case will affect the rights of the people of Jammu and Kashmir, it is therefore necessary that the voice of the people of Jammu and Kashmir is properly represented.

A: Audi Alteram Partem is a well-recognized principle of fundamental justice or equality or the principle of natural justice which ensures that no person should be judged or punished without a fair hearing. India, the biggest democracy of the world with an impartial judiciary, must show that it cares respects and is sensitive to democratic and judicial values set forth by the constitution and recognized by the civilized world. The case will surely affect the rights of people whether political, legal or democratic. Justice and fair-trial demand that all the stakeholders should be brought on board to determine the merit of this sensitive Article. Any outcome without such recourse seems not merely irregular but also legally and morally untenable.

Democracy is a system of rule by laws. The rule of law protects the rights of citizens and their aspirations and the essence of the impartial judiciary is in guaranteeing those rights and not in usurping those rights.

Article 35A makes the legislature of the state central in defining and designing any legislation for the state of Jammu and Kashmir. PDP-BJP which was the democratically elected government had people’s mandate and had authority to appoint the office of Advocate General or hire a lawyer to represent the people of the state of Jammu and Kashmir. But since the break down of the normal machinery in which the affairs of the state are run by the Governor and thus, a temporary eclipse has been caused by the contingency i.e. imposition of Governor’s rule due to the split of BJP-PDP coalition.

This eclipse can be removed only when a new body of legislature comes into being through a general election. During Governor’s rule, the governor becomes the administrative head of the state. The Advocate General and his company who are supposed to defend the interest of the state is appointed to the office by the governor, who himself is an appointee. He can be removed by the president in consultation with the Prime Minister.

The present case involves a question of law and fact concerning not only of the rights and interest of the people of Jammu and Kashmir but the powers and authority of the president and extent of the exercise of such powers pending disposal for determination before the Supreme Court. The court will have an opportunity not only to examine the Article 35A in isolation but also deliberate upon Article 370 (1)(d) through which the article in question has come into being.

Waiting for the next hearing. A cartoonist explains

During Governors term, when the president’s own status vis a vis Article 35A and Article 370 is in question who in turn appoints the Governor, the administrative head who runs the affairs of the state, there is substantial possibility and real likelihood of bias, while performing his duties and functions as the constitutional head of the state.

The decision of the Supreme Court will ultimately decide the position and nexus between the state and the Centre, which is entirely a legislative function. The fact that the central government has made it clear that it will not defend Article 35A makes it all the more ominous.

Supposing for a moment that Article 35A, which is being challenged is set aside by the Supreme Court as unconstitutional or bad in law, its legality cannot be questioned or it can be said that it is good for all purposes until that point in time. Article 35A accords a central role to the legislature of the state for formulating law in respect of the permanent residents of the state of Jammu and Kashmir. It shows that elected government is the entity which represents the will of the population, which is in line with the basic fundamental principle underlying the foundation of democracy: ‘a government  of the people, by the people, and for the people.’

B: Whether the Governor acts as ‘an agent’ of the Central government or/and the applicability of the ‘Doctrine of Pleasure’:

  1. In all states of India, the state government’s failure results in President’s Rule. The process is slightly more nuanced in Jammu and Kashmir where not the President’s but Governor’s rule is imposed. Under the provision of Section 92 of the Jammu and Kashmir constitution, Governor’s rule is imposed for six months, but only after the consent of the President of India. The Constitution of India grants special status to Jammu and Kashmir among Indian states, and it is the only state in India to have a separate Constitution and regulations specific to it. Given the Special status of Jammu and Kashmir, the determining point for examining the merit of ‘an agent’ and ‘at pleasure’ would be different than in the rest of states.
  2. The number of times the Governor’s rule has been imposed in Jammu and Kashmir makes it a distinct class of state than the rest of states. In the present scenario imposition of Governors rule in our state, would mean the assumption of all political space which is in total conflict with his apolitical stature, provided in the constitution and contrary to the views held by Jawaharlal Nehru and Dr B R Ambedkar, the forefathers of the Constitution expressed during the Constituent Assembly Debates, in regard to the office of Governor (volume III pages 455 and 469)

Nehru said: “But on the whole it probably would be desirable to have people from outside-eminent people, sometimes people who have not taken too great a part in politics…..he would nevertheless represent before the public someone slightly above the party and thereby, in fact, help that government more than if he was considered as part of the party machine. ”

Ambedkar was recorded stating: “If the Constitution remains in principle the same as we intend that should be, that the Governor, with no power of interference in the administration of the province….”

  1. Assuming for a moment that both (1) and (2) privileges are waived, the next test would be the one which is applicable to other states, has been thoroughly examined in B R Singhal v/s Union of India 2010 by the Constitutional Bench of the Supreme Court. The Court has laid the law and the test for determining the position of governor summarized as under

(a) During subsistence of the normal state machinery when there exists a council of ministers and (b) When the Presidents rule /Governor’s rule is imposed hence no council of ministers.

In the former case, the governor does not act as ‘an agent’ and the application of ‘at pleasure’ doctrine is also limited. But in the latter case, the governor acts absolutely as an agent of the central government and remains in the office at the pleasure of the President.

Therefore, in any case of the state of Jammu and Kashmir, if and when it comes for determination, necessitate that there must be a functional state government and not the state under governor’s rule when the governor acts as an agent of the central government and remains in the office at the pleasure of the President. This goes also against the purpose of having Seventh Schedule in the Constitution.

The principle that “Justice should not only be done but it should be seen to be done” as a sequel to natural justice seems to be ignored in the case.”

Hakim Irfanul Haq, LLB

In view of the above facts, it is manifestly apparent that presently state of affairs of the state are not same in absence of an elected government and such an important decision by the Governor administration is not legally, politically and ethically desirable. This action of the present dispensation cannot be justified even if by the participation of the bar associations of summer and winter capital, coupled with bonafide representation of the mainstream parties. As against this, the proper course would be that:

I: The voice and concern of 12.5 million people could be safeguarded by the elected representatives of the state of Jammu and Kashmir.

II. The candidate, as well as, the electorate who have been actively participating in the democratic process, risking their life and property would feel insulted and offended and an irreparable damage and alienation would result thereby shaking their faith concerning the constitutional machinery of the country.

III. The claim of the central government that the elected government of the state alone, not the separatists have a locus, is nullified by the fact that the stand of separatists is well guarded and represented by the Bar Association of Kashmir. Such a disagreement/contradiction will result in permanent alienation and separation of the Prospective-voters from the mainstream.

IV: The Supreme Court would need to consider the historical and contemporaneous political situation in the state of Jammu and Kashmir and justify the similar provisions regarding states of Himachal Pradesh, Manipur and other eastern states besides similar provisions in constitution of other countries like Australia, in light of ‘social contract’ theory and ‘Instrument of Accession.’

(The author, a resident of Gopalpora, Kulgam is a law graduate from the University of Kashmir. Ideas expressed are personal.)

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