The governor released the communiqué of dissolution minutes after People’s Democratic Party (PDP) leader and former chief minister Mehbooba Mufti released a letter on Twitter announcing that she would seek to form the government with her traditional rivals, the National Conference (NC) and Congress.
Mufti’s letter was followed by People’s Conference chief Sajad Lone’s letter to the governor on WhatsApp, putting forth a similar bid.
Mufti and Lone said they used social media because the fax machine at the governor’s residence didn’t seem to be working. Mufti added that Malik was not available on the phone either.
There is simply no legal or constitutional justification for Governor Satya Pal Malik’s sudden decision to dissolve the Jammu and Kashmir Assembly.
The governor has the power to dissolve the Assembly under Article 53(2)(b) of the Constitution of Jammu and Kashmir. But this provision is identical to Article 174(2)(b) of the Indian Constitution and, therefore, the principles laid down by the Supreme Court in similar situations involving other states would apply here as well.
The legal position has been well settled since the Supreme Court delivered its judgement in SR Bommai vs Union of India, 1994: the governor cannot dissolve the Assembly for any reason they deem fit. Their decision should be based on “objective material” indicating it is impossible to form a government. • What is this “objective material”? –The court’s judgement, Rameshwar Prasad vs State of Bihar, —
. ‘’Without highly cogent material, it would be wholly irrational for constitutional authority to deny the claim made by a majority to form the Government only on the ground that the majority has been obtained by offering allurements and bribe’’
Rameshwar Prasad’s case is relevant in the context of Jammu and Kashmir given the very similar situation. After the 2005 Assembly election in Bihar, no party or alliance had the majority.
The National Democratic Alliance had won 92 seats, as many as the Rashtriya Janata Dal and the Congress had together, with the halfway mark being 122.
The National Democratic Alliance claimed they had the support of independents as well, and staked claim to form the government. Instead of giving them an opportunity to prove their majority on the floor of the House, Buta Singh dissolved the Assembly and imposed President’s rule.
The Supreme Court subsequently set aside the Assembly’s dissolution, but by then fresh elections had been announced and the court did not stop the process.
Malik’s reasons for dissolving the Jammu and Kashmir Assembly are unconvincing.
They are based purely on his subjective (and partisan) assessment of the situation.
Moreover, when a set of parties had already indicated its willingness to stake a claim to form the government, it was incumbent upon the governor to examine the matter objectively. If he had any doubts, he should have ordered them to take a floor test.
An additional reason, given this is Jammu and Kashmir, is the allegation of Pakistan and its agents influencing the Valley’s political parties into staking claim to form the government, without actually providing any evidence for it.
How the People Democratic Party chief Mehbooba Mufti communicated the letter of support is a red herring. Whether every one of the MLAs she claimed would support the proposed government actually backed her was not relevant either. The only question the governor should have considered was whether it was possible to form a government with the numbers mentioned. Any doubts he had about the actual extent of support for the proposed government could have been addressed by simply ordering a floor test within 24 hours to minimise chances of horse-trading, or coercion.
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