Former Governors, UPA or NDA appointees, criticise hurried move, say J&K Governor Satya Pal Malik should have called for floor test. But one disagrees.
New Delhi: Jammu & Kashmir Governor Satya Pal Malik’s decision to dissolve the state assembly has led many former governors — including an NDA appointee from Atal Bihari Vajpayee’s time — to question the constitutional propriety of the move.
Two sets of parties — a PDP-Congress-National Conference combine and Sajad Lone’s People’s Conference backed by the BJP — staked claim to form the government Wednesday evening. However, Malik instead dissolved the state assembly, citing the “impossibility of forming a stable government by the coming together of political parties with opposing political ideologies”, referring to the arch-rivalry between the PDP and the NC.
Most former governors ThePrint spoke to criticised or questioned the decision. There was a lone voice, however — former NDA appointee V.S. Kokje — who said he found nothing malafide in Malik’s decision.
Kokje is currently the president of the Vishva Hindu Parishad and served as Himachal Pradesh governor between 2003 and 2008.
Floor test
Gopalkrishna Gandhi, the former governor of West Bengal, said the situation should be viewed in light of the Justice Sarkaria Commission’s recommendations.
“The Sarkaria report has not been officially accepted, but it is the most reliable guide for all governors,” Gandhi told ThePrint.
The report recommends that in a situation of political breakdown, the governor should not risk determining the issue of majority support on his own outside the assembly. “The prudent course for him would be to cause the rival claims to be tested on the floor of the house,” the report says.
Another former governor of West Bengal, who did not wish to be named, said: “The laid down procedure is that once the governor receives claim by different contenders, the testing of majority has to be done on the floor of the assembly. That’s what I expect governors to do. The governor is constrained by judicial pronouncements. He can’t ignore the procedure.”
T.K. Chaturvedi, who was appointed by Vajpayee’s NDA government as the governor of Karnataka in 2002, too agreed that the best thing would have been for Malik to have allowed the parties to prove their majority on the floor of the assembly.
Chaturvedi pointed out that the J&K assembly was in suspended animation, so “the governor could have convened the assembly and allowed the contenders to prove their majority”.
Nikhil Kumar, former governor of Nagaland and Kerala, said when a governor receives claims from rival parties, he is constitutionally bound to summon the assembly and allow the contending parties to face floor test.
“But since, according to the governor, he did not receive any such communication, he went ahead and dissolved the assembly and obviated the necessity of a floor test.”
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Tale of the fax machine
Chaturvedi felt that the PDP-Congress-NC was also at fault.
“Instead of faxing her letter to Raj Bhavan, Mehbooba Mufti should have either gone in person to meet the governor or sent the letter containing signatures of all the parties that supported her claim by hand,” he said.
However, both Kumar and Chaturvedi spoke about the fax machine fiasco, which has become a key highlight of the dissolution because Mufti claimed that she had faxed and emailed her letter to Raj Bhavan, while the governor has claimed his office did not receive any communication from her.
Chaturvedi said: “The governor’s office is at fault if the fax machine was not working.”
Kumar added: “It needs to be examined how the fax machine at Raj Bhavan was not functioning. In such offices, you can’t have a situation where fax machines do not work. Raj Bhavan receives very important communications round the clock.”
Sheila Dikshit, who served as governor of Kerala, said it’s rare for Raj Bhavan fax machines not to work.
“The contending parties can either meet the governor in person or can send their letter by fax, e-mail, or inform the governor on the phone. Yes, fax machines can go out of order, but these are important offices and one can’t just say the fax machine was not working,” she said.
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Questions over timing
Kumar found it odd that the dissolution came the very night the contending parties made their claims.
Another former governor, who wished to remain anonymous, said it was surprising that Malik suddenly decided after five months of Governor’s Rule that he would dissolve the assembly.
“What new thing has come to notice suddenly after five months?” the former governor asked.
Chaturvedi agreed: “I would not have taken the decision in such a hurry. The main concern of the governor is to see if those staking claim to form government have majority.”
Dikshit, the former chief minister of Delhi, said a governor is constitutionally bound to see whether there’s any possibility of a government being formed before dissolving the assembly.
“The procedure is very clear. It says that those who are claiming should be given a chance to present their case. But this has not been done. It should not have happened,” she said.
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‘Acted on BJP high command’s instructions’
Margaret Alva, who served as the governor of four states, including Uttarakhand and Rajasthan, called Malik’s decision “unprecedented”.
“How did the governor decide that a stable government can’t be formed without consulting any of the contending parties? Also, what kind of decision-making is this when the governor is not accessible on phone, does not get fax or e-mail?” Alva asked.
The senior Congress leader said it’s obvious that Malik did not want to listen to any of the contenders.
“Decisions by a governor have to be beyond question. He has to show that his decision is fair, as per the Constitution. And a floor test is the only way to decide a majority. It looks like he has acted on the instructions from the BJP high command,” Alva alleged.
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‘Action not motivated’
Contrary to all these opinions, Kokje was of the view that Malik was well within his rights to dissolve the assembly. “Prima facie, you can’t call his decision malafide,” he said.
“The governor has to be convinced that a group of MLAs have the strength and can form a stable government. It does not seem that the governor’s action was motivated.
“Four-five months had gone by, and suddenly they (PDP-Congress-NC) said they have majority. The governor was not convinced.”
Kokje said the parties might have come to know about the governor’s decision to dissolve the assembly, and that is why they pre-empted it.
Not sure if the Governor’s – if one may call it that – decision would withstand judicial scrutiny.