Is it a different story for Jammu and Kashmir
A credible news report suggests that Governor N.N.Vohra is on his way out for having fallen foul of New-Delhi on two counts. One that he does not support New-Delhi’s attempts to form a fresh government in Jammu and Kashmir by BJP with the help of some political renegades from PDP. Though the BJP Government at the centre is keen on it, but Vohra, who has handled the state four times in the past, is not ready to provide logistical support to the arrangement. The other point of his disagreement with New-Delhi is stated to be his stand on Article 35-A of Indian constitution, presently pending adjudication before the Supreme court of India. It may be recalled that Vohra recently conveyed to Union Home Minster about the inadvisability of the case being heard during Governor’s rule and advised New-Delhi to get the hearing of the case adjourned in the Supreme Court till an elected government is formed in the State. Both these stands of Vohra can be said to be mature, principled and virtuous.
While Vohra’s refusal to install a fresh Government of BJP and PDP renegades is understandable on moral and ethical political grounds, a question arises why did he have to differ with New-Delhi on the issue of Article 35-A . In other words why did he have to suggest the Union Home Ministry to apply for an adjournment to Apex Court in respect of hearing on Article 35-A slated on 6th August? The answer is not too difficult to comprehend. Since the petition challenging Article 35-A has been by ‘We the Citizens’ an RSS backed NGO before the Supreme Court, the first respondent, Union Government of India has not put any defence before the apex court against the petition .The advocate General of India, who represents the Union government in the Supreme court, neither filed any counter affidavit nor expressed his intention to do so on a future date. In fact he sought and obtained an adjournment on the bizarre ground that Centre’s interlocutor is holding parleys with different political groups in the state. It must be for the first time in the history of India that a Union government is not defending its own constitutional provision in the highest court of law.
Sensing the malafide intentions of New-Delhi to do away with article 35-A by putting no defence and giving a virtual walk-over to the petitioners , The only option for the Governor was to lead a strong challenge from the state in defence of the article 35-A , which would have brought him in direct confrontation with the centre. Hence he, in his own wisdom and judgment, thought it appropriate to appeal New-Delhi to apply for a further adjournment of the case till an elected government is put in place in Srinagar. After all discretion is the better of the valor.
Governors of states are, no doubt, representatives of center and they are bound to follow the directions of union Home Ministry at every point and stage of their tenure .But the position in case of J&K is vastly different. He enjoys a special position under the constitution of J&K. The Governor’s rule in J&K is imposed under article 92 of the State constitution for a maximum period of six months and once imposed, the Governor owes his existence to the constitution of J&K and is bound to be guided by its provisions than the directions of the Union Home Ministry at-least during this period. Though the Governor is bound to obtain the concurrence of New-Delhi before imposing his rule on the state, by virtue of clause (5) of same article yet the fact remains that he is the creature of constitution of J&K and not the Indian constitution as is the case with other states where Governor’s rule is applied under article 356 of Indian constitution. During this period of six months, he assumes executive as well as legislative powers in J&K and his powers, barring few exceptions, are unfettered. For instance Article 53(2) of J&K State constitution authorizes the Governor even to dissolve the assembly and if he invokes this power, he has, unlike other states, not to take any instruction or permission from the Union Home Ministry. In 1990, a great deal of controversy and ill will was generated between Mufti Mohd. Syed, the then Union Home Minster and Governor Jagmohan when the latter dissolved the J&K State Assembly in Feberuary of that year without informing him, leave aside taking his instruction or permission.When Mufti expressed his displeasure over his action, Jagmohan, in a terse letter dated 20th feberuary 1990 rebuffed him with the message “ There is nothing to be unhappy about my action’. (My frozen Turbulence-By Jagmohan P 491)
In other Indian states, President applies his rule under article 356 of Indian constitution and Governor is only his agent in carrying out such rule. Obviously he is bound by instructions and directions which the president communicates to him through Union Home Minstry. Additionally in such Indian states, it is called as president’s rule while in our case it is referred to as Governor’s rule. The nomenclature may be symbolic but important nevertheless.
But this unfettered power of Governor in J&K has also been misused by incumbents at times. For instance On July 30, 1986, the President of India made an order under Article 370, extending to Kashmir, Article 249 of the Constitution in order to empower Parliament to legislate even on a matter in the State List on the strength of a Rajya Sabha resolution. Application of this article required concurrence of State government under second proviso to Article 370. Jagmohan, being governor at that time, manipulated the whole exercise in a single day and himself gave concurrence to the application against the Law Secretary’s advice and "in the absence of a Council of Ministers. It was a blatant misuse of power against all ethical norms. Similarly the present Governor Vohra has amended the Public Safety Act to allow authorities to lodge detenues in jails outside the State, forcing them to live in alien and hostile conditions and putting their families to untold miseries and inconvenience. Before the amendment such detenues could only be lodged in Jails within the State. He has made the infamous Public Safety Act, already branded a lawless law by Amnesty International, more inhuman and Draconian. In the process he has also tarnished his unblemished image and impeccable record .
(The author is a practicing Chartered Accountant)