State turns headless, legal experts say it’s Constitutional crisis

Neeraj Rohmetra

JAMMU, Jan 8: The Jammu and Kashmir today remained headless for second consecutive day plunging the State into Constitutional crisis as most of the legal and political experts believed that Governor NN Vohra should have assumed charge of the State today itself by imposing his Rule in consultations with the President of India and the Union Home Ministry but he only faxed two letters to PDP president Mehbooba Mufti and BJP chief Sat Pal Sharma, CA asking them to urgently inform him about their position on formation of new Government.
The Constitutional and legal experts were unanimous that the State plunged into the Constitutional crisis today as presently there was neither any Chief Minister nor the Governor’s Rule, which means the State was headless and virtually being ruled by the bureaucrats, which was against the democratic norms.
“The Governor should have imposed his Rule today after expiry of 24 hours period following the death of Chief Minister Mufti Mohammad Sayeed. Though I’m not a Constitutional expert, the position in this regard is very clear. The Governor had to impose his Rule today,” former Chief Minister and NC working president Omar Abdullah told the Excelsior.
He added that when Sheikh Mohammad Abdullah died on September 8, 1982, Farooq Abdullah was administered oath as the Chief Minister the same night as the State can’t remain headless. I was told by Azad (Ghulam Nabi) that similar position was followed when then Prime Minister Indira Gandhi was assassinated in 1984 and Rajiv Gandhi was sworn-in the same evening. Even death of Indira Gandhi was announced only after Rajiv Gandhi had been sworn-in.
As per the stated position, with the death of the Prime Minister or the Chief Minister, his/her Council of Ministry ceased to exist. As the State can’t remain headless, the new Prime Minister or the Chief Minister had to be sworn-in within 24 hours. As Mehbooba Mufti, PDP president, refused to take oath as the new Chief Minister before ‘congregational fateha’ on Sunday, the Governor, according to experts, was left with no option but to impose his Rule in the State at 8 am today in consultation with the President of India and the Union Home Ministry.
However, a one paragraph press note issued by the Raj Bhavan quoting a spokesman said late this evening that the Governor besides being in touch with the leadership of the coalition Government partners, has also addressed letters by fax to Mehbooba Mufti, president PDP and Sat Paul Sharma, CA, president BJP, to urgently inform him about their respective positions regarding formation of the new Government.
Sources said the Governor has sought the PDP and BJP replies by 1 pm tomorrow after which he will forward his recommendations to the President of India.
Despite repeated telephonic calls and messages, Principal Secretary to Governor, PK Tripathi failed to respond on Constitutional crisis in J&K
The Constitutional, legal and political experts were clear that the State was presently headless in the absence of the Chief Minister or any officiating Chief Minister as the Governor didn’t impose his Rule in the State, which he can under the J&K Constitution for first six months. In rest of the States, President Rule is imposed by the Centre but J&K Governor enjoyed special powers to himself impose his Rule for first six months.
Former Law, Finance and Planning Minister and Lok Sabha member of PDP, Muzaffar Hussain Beigh clearly stated that the Governor Rule can be imposed for time being in such a situation and “we must understand that it was an arrangement for a certain period of time till Mehbooba Mufti takes oath”.
Beigh said the Governor will take care of the State and once Mehbooba take oath, the Government will come into existence again. However, he referred to the crisis as ‘Constitutional technicality’.
Justice Permod Kohli, who had retired as Chief Justice of the Sikkim High Court, maintained that as on date, there is no Government in Jammu and Kashmir, which clearly means the ‘Constitutional crisis’.
“The Constitutional posts can’t be kept vacant. As there is no Chief Minister or caretaker Chief Minister, the Governor’s Rule was imminent. With No Governor Rule, the State is clearly headless,” Justice Kohli said.
He also cited the example of Rajiv Gandhi being sworn-in as the Prime Minister within hours after the assassination of Indira Gandhi in October 1984.
Several other legal experts including former Advocate Generals, who didn’t want to be named, were of the view that there was no legal justification of not imposing the Governor’s Rule in the State plunging it into the Constitutional crisis, with no one at the helm to take policy decision, if the situation arises.
They cited that Mir Qasim and Dr Farooq Abdullah had taken oath as the Chief Ministers the same day after the death of Ghulam Mohammad Sadiq and Sheikh Abdullah in the State.
Similarly, they added, Gulzari Lal Nanda had been appointed as caretaker Prime Minister of the country twice after the death of Pt Jawahar Lal Nehru and Lal Bahadur Shastri as the country can’t be headless.

Powers of Governor in J&K
Provisions in case of failure of Constitutional machinery in the State -(1) If at any time the  Governor is  satisfied that a situation has arisen in which the Government of the State cannot be carried on 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 the State;
(b) make such incidental and consequential provisions as appear to the Governor to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending in whole or in part the operation of any provision of this Constitution relating to anybody or authority in the State;
Provided that nothing in this section shall authorise the Governor to assume to himself any of the powers vested in or exercisable by the High Court or to suspend in whole or in part the operation of any provision of this Constitution relating to the High Court.

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