Wednesday, 4 September 2019

Why Gopal Sankaranarayanan is wrong about Article 370

Advocate Gopal Sankaranarayanan says the Centre moved a resolution in Parliament to extend President’s rule 10 days after it should have lapsed. This gaffe means the recent change in the status of J&K is of dubious legality.

He writes in the Indian Express-
As far as Jammu and Kashmir is concerned, the President first issued his Proclamation on December 19, 2018, vesting the powers of the government with himself and those of the legislature with Parliament. This was followed on January 3 by the approval of the Houses of Parliament. Notably, this approval gave the Proclamation a life of six months with effect from December 19, 2018 (not from January 3, 2019). Therefore, if it were not extended before June 18, the Proclamation in the solemn words of the Constitution, would “cease to operate”. In 1994, a nine-judge bench of the Supreme Court in the S R Bommai case had observed that the necessary consequence of such a lapse of the Proclamation would be that the “status quo ante revives”. It emphasises: “The Legislative Assembly which may have been kept in suspended animation also springs back to life”.
However, it appears that the government missed the bus. 
Imagining that the cut-off date was July 2, resolutions were tabled to extend the Proclamation on June 28 in the Lok Sabha and July 1 in the Rajya Sabha, thereby purporting to renew the six-month period from July 3. This, as Article 356(4) clearly shows, was impermissible, because the Proclamation had ceased to have effect on June 18 itself. The only option now was a fresh Proclamation to be issued by the President on the same terms as the earlier one — imagine your passport or driver’s licence, but without a grace period for renewal, thereby requiring you to apply afresh.
 Sankarnarayanan's mistake is in thinking that J&K was covered by subsequent amendments to Article 356. As the Home Ministry has clarified-

'Original provisions under Art 356 allow it to exist for six months from the date of the 𝗦𝗲𝗰𝗼𝗻𝗱 of the resolutions approving the proclamation.The subsequent changes to article 356 (4) through 42nd and 44th Constitutional Amendments were not made applicable to Jammu and Kashmir. Therefore, the original provision of article 356 (4) was applicable to Jammu and Kashmir.'

What would have happened had J&K been covered by these two Amendments? Would Sankarnarayanan's argument succeed? He writes-

Neither the notifications by the President on August 5 and 6 under Article 370, nor the exercise by Parliament to reorganise the state as two Union Territories were carried out with the approval of the J&K state legislature. In fact, both the nation’s executive and the legislature proceeded as if the legislature did not exist, singularly on the misapprehension that the Proclamation was still in force. The consequence of this gaffe appears to be grave — gubernatorial privilege has been peculated and the creation of new territories to be directly governed by the Centre has undermined the federal canon. India and its government have had to endure obloquy, both from within and without, and a frustrated neighbour has drummed up visions of nuclear war.
While the integration of the land and its people is necessary, it is cardinal that the world’s most resplendent democracy heed constitutional process, because without it, we are back in the dark days of the Emergency.
It is certainly true that (if Sankaranayanan were right in law) on or after June 18, a petition could have been filed on behalf of the previous State Assembly asserting that it had been revived.  It would have been interesting to see how the Bench ruled. However, the Assembly slept upon its rights and no one else was smart enough or public spirited enough to file a PIL on their behalf.

Section 365 (4) reads- 'Provided that if and so often as a resolution approving the continuance in force of such a Proclamation is passed by both Houses of Parliament, the Proclamation shall, unless revoked, continue in force for a further period of six months from the date on which under this clause it would otherwise have ceased to operating, but no such Proclamation shall in any case remain in force for more than three years.'

Clearly, both Houses of Parliament approved the renewal of the Proclamation. If a dead Assembly can come back to life why not an inoperative Presidential Proclamation? Suppose that Assembly had gathered together in the interregnum, they could certainly have petitioned the Court to be recognized as the legal Government of J&K. But they slept upon their rights. Nor did they raise the issue in Parliament. What happened next is that the Presidential proclamation was resurrected by Parliament and had application from its date of lapse- i.e. June 18. There was no 'gaffe' by the Ruling Party. The Opposition as well as all the vaunted constitutional experts were asleep at the wheel. 

The author says 'gubernatorial privilege has been peculated'. How so? In what manner has something belonging to the public been peculated by a person trusted to preserve that property? Where is the wrong doing? 

India's 'federal canon' is not federalist at all. It is the Union of India which decides what is a State and what a Union or other territory. Again there is no wrong doing.

Constitutional processes have been heeded. If dead Assemblies come back to life under a particular contingency, then those Assemblies should assert their rights, not sleep upon them, when the law says it is resurrected. What is sauce for the goose is sauce for the gander. Presidential Proclamations too can come back to life and, what's more, get backdated to the moment of their lapse. So, this is a hullabaloo over a dead Assembly which refused to resurrect itself as compared to a Proclamation which did resurrect itself in such a manner that there was never any moment when, from the constitutional point of view, it was inoperative. Indeed, India's own Constitutional autochthony is based on a similar legal fiction. Thus, to conclude, move along folks- nothing to see here.

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