Dropped 'catches' in J&K

Take the fact, firstly, of the time of the election -- six years after the last one, in 1996. Why this gap of six years when, for the rest of India, the stipulated life of the state legislature is five years? All detailed coverage and commentaries on the J&K elections missed this catch; no letter-to-the-editor writer wondered at it.

The reason is simple. Only a few are aware that the gap of six years between one assembly and another in J&K is because that state's constitutional framework is different in various ways from the framework applicable to the rest of India. Thus, the first paragraph of Article 172 (titled 'Duration of State Legislatures') of the Constitution of India lays down that 'Every Legislative Assembly of every State, unless sooner dissolved, shall continue for five years from the date appointed for its first meeting and no longer and the expiration of the said period shall operate as a dissolution of the Assembly.' However, this Article 172 is not applicable to J&K! The Constitution (Application to J&K) Order No 89 of August 24, 1971 issued by the President of India under Article 370 saw to that.

What is applicable instead to J&K is Section 52 of the J&K State Constitution which lays down that 'The Legislative Assembly, unless sooner dissolved, shall continue for six years from the date appointed for its first meeting…'

It is precisely such autonomy that is dangerous. What could the Government of India have done, for instance, if the Abdullah government of 1996, with its two-thirds majority in the state assembly, amended Section 52 to extend the duration of the state legislature from six years to ten years? Nothing, absolutely nothing, for there's nothing in the pact between Delhi and Srinagar that enables the Government of India to control such amendments in the J&K constitution which are outside the pale of the Indian Constitution.

It is very revealing to note that J&K increased the life of its legislature from the original five years to six years in February 1977 following the amendment of Article 172 in January 1977 when Indira Gandhi's Emergency extended the duration of every state legislature from five years to six years. However, when Morarji Desai's Janata Party government amended Article 172 again in 1979 to restore the state legislature's duration to five years, the J&K assembly did not follow suit, and continued with its stipulated six years under Section 52. The autonomy of J&K was again in play.

Take next the J&K governor's grant of extension of time last week till October 21 to form the new government although the newly elected assembly should have been in place by midnight of October 17, when the six-year life of the previous assembly expired. A hot debate had occurred in August this year when the Election Commission postponed the Gujarat assembly polls and thereby prevented a new assembly from being constituted before October 6 -- within six months of the session of the previous assembly that had been prorogued on April 6.

The EC's order of August 16 itself conceded in para 5 that 'a Legislative Assembly should meet at least every six months as contemplated by Article 174(1) of the Constitution' (of India).

How then could the J&K governor grant the extension of four days till October 21 to the Congress, the People's Democratic Party to resolve their fight to grab the fishes and loaves of office of a new government in Srinagar? The answer is simple: under the earlier cited Constitution (Application to J&K) Order of the President under Article 370, Article 174 of the Constitution of India is also not applicable to J&K. What is instead applicable there is Section 92 of the J&K state constitution which states, inter alia, as follows:

'If at any time the Governor is satisfied that a situation has arisen in which the Government of the State cannot be carried in accordance with the provisions of this Constitution, the Governor may by Proclamation -

a. assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by anybody or authority in this State;'

Not the word 'may' above. Clearly, Section 92 of the J&K constitution gives the state's governor the discretion to delay imposition of the governor's rule in the state as he actually did. That Farooq Abdullah forced his hand by refusing to continue as the caretaker chief minister beyond the midnight when the assembly's life officially expired is another story. The point is that the in-built rigidity of Article 174 of the Constitution of India has been translated into the flexibility of autonomy granted to J&K by virtue of the prevalence over Article 174 of Section 92 in the state constitution.

Another important dropped 'catch' of the J&K election event is that offered by Ghulam Nabi Azad of the Congress. Now it is known that Azad did not contest the recent election. It is equally widely known that Azad has never been elected either to the state assembly or to the Lok Sabha. What is not known so widely is, as the Free Press Journal editorial of October 16 pointed out, 'the only time he had contested an election from his home constituency (Doda) for a place in the state legislature, he had lost his deposit." And it is this very Azad who has been 'elected' as the leader of the Congress legislature party in J&K, all keen as mustard to become the state's chief minister.

One can understand Azad being president of the Congress in J&K. One can understand him being a minister in the new J&K government provided he gets elected to the assembly within six months of becoming a minister as mandated by Section 37(2) of the J&K constitution. But to be elected as 'leader of the Congress legislature party' and to be constantly described by that label when he is not a member of the legislature is an absurdity that no one has latched on to.

How absurd it really is can be seen from the reality that Azad can be the CM or a minister of J&K state straight away without being a member of the state assembly but cannot, just now, be a deputy minister of the state! Read that sentence again please to absorb the shock. And then ask 'Why not?'

The answer lies in Section 38 of the J&K state constitution. This Section 38 states: 'The Governor may on the advice of the Chief Minister appoint from amongst the members of either House of Legislature such number of Deputy Ministers as may be necessary.' In short, a deputy minister of J&K has first of all to be a member of the state legislature, and, therefore, Azad cannot, tomorrow, be a deputy minister of J&K. Incidentally, the Constitution of India has no article corresponding to Section 38 of the J&K Constitution. Another example, there, of J&K's unique autonomy.

Another peculiar facet of the J&K autonomy is the oath of office that will soon be taken by the state's new ministers. That oath, set out in the Fifth Schedule of the J&K Constitution, demands 'true faith and allegiance to the Constitution of the State' -- not to the Constitution of India! India is relegated to the second place with the oath demanding the ministers to merely 'uphold the sovereignty and integrity of India.' And those condescending words were added to the oath only with the Sixth Amendment of the J&K Constitution, which came into effect from April 10, 1965 -- 18 years after the J&K maharaja acceded his whole state to India. Now you have another reason why Farooq Abdullah yearned for the pre-1953 status for J&K.

The most glaring, but totally overlooked, missed catch of the recent J&K election was floored by the BJP. With just one of 87 assembly seats secured by it this time as against the eight in the previous polls of 1996, the BJP suffered the blues silently. 'Secular' commentators gloated as to how the "communal" forces had been routed, how the RSS demand for the state's trifurcation had been dealt the death blow by voters and how one reason why NC suffered its humiliating defeat at the hustings this time was because of its alliance with the BJP in the NDA government in Delhi.

What the BJP stalwarts and all 'expert analysts' failed to catch was that as against eight per cent of the total votes polled by Mufti Mohammed Sayeed's party for its 16 seats, the BJP won a solitary seat with 12 per cent of the total votes --- the same percentage as in 1996. (12th October 2002, compiled on the basis of reports in Kashmir Times and other papers.)

Truly have the people of India missed several catches in J&K of recent weeks. And if, somehow, the Mufti comes to wield power there, the nation may well be on the way to missing the J&K bus altogether if the BJP and the Congress continue to allow inimical forces in the Kashmir Valley to hold complete sway over Jammu and Ladakh and... the rest of India.

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Arvind Lavakare