K B Jandial
Political parties mandated by the people to form a stable and truly representative Govt. in the state are still confabulating with potential allies with new proposals coming on table. Evensome “non-playing actors” like Hurriyat(M) have joined the processin a way by debating the aftermath of elections and ‘vowing to protect J&K Muslim identity’. One prominent separatist leader, Prof. Abdul Gani Bhat has met Mufti Sayeed in Srinagar amidst speculation that he has counseled him on the preferred choice of allies in Govt.formation amidst strong possibility of PDP-BJP alliance. The BJP delegation in its meeting with the Governor on Thursday also asked for more time to sortout contentious issues in formation of Govt.For all of the stakeholders, alliance with parties of diverse ideology is, indeed, a very difficult proposition which is becoming complex with passage of every day. All these developments clearly indicate roadblocks that possibly further delay the Govt. formation.
Meanwhile, the state Department of Law & Parliamentary Affairs has notified constitution of the 12th Legislative Assembly in terms of section 82 of Jammu and Kashmir Representation of Peoples Act, 1957. This also fueled apprehension in some quarters about the impending imposition of Governor’s Rule under section 92 of the State Constitution if the new Govt. is not formed soon.
The tenure of the 11th Legislative Assembly expires on 19th January 2015 even though Omar Govt. completes six years in office on 5th January this year. Some political commentators fix the deadline of 5th January, 2015 for formation of the new Govt. while others opine that it should be in place by 19th January this year as the Assembly completes its prescribed six years’ term on this date.Is there any deadline for installation of a new Govt.? It is purely a constitutional l issue rather than the political one.
The constitution of the 12th Legislative Assembly does not automatically cut short the life of the existing Legislative Assembly. The six years’ life of the Assembly commences, not from the date the notification of constitution of the Assembly but from the date of the “first sitting” of the Assembly.Section 52 of the State Constitution (corresponding provision ofthe Constitution of India is article 83 (2)) provides the duration of the Legislative Assembly. It says that ‘the Legislative Assembly shall continue for six years from the date appointed for its first meeting’ if its term is not cut short by its dissolution. The ‘first meeting’ is when the Governor summons the newly elected members to take oath of the office of member of the Legislative Assembly for which he appoints a Pro-tem Speaker. The commencement of the first session after election is the ‘first sitting’. It is a settled issue.
The State or the national Constitution does not restrict the life of the Cabinet to any particular period even though the popular impression is that it runs concomitantly with the life of the Assembly. Section 39 of the State Constitution (article 75 (2) of Indian Constitution)speaks about the tenure of the office of the Ministers which says that a Minister “shall hold the office during the pleasure of the Governor.”
Both the Constitutions have related provision about the tenure of a Minister who is not a member of either Lower or Upper House. Section 37 (2) of J&K Constitution and article 75 (5) of Indian constitution permit a person to hold the office of Minister without being a member of either House, but with a rider. It says that a Minister who fails to become a member of either House within ‘a period of six consecutive months’ shall cease to be Minister ‘at expiration of that period’. It implies that aMinister, who is not a member of either House, can continue to hold the office up to six months. By interpretation, it can also be the Cabinet which is, in fact, a group of Ministers and under this provision, it can continue even if members of the cabinet are not member of either House.
When on electoral defeat, Omar Abdullah submitted the resignation of his council of Ministers the Governor requested him to continue in office till “alternate arrangement” is made. Since then Omar Abdullah is called as the ‘caretaker CM’ and the Govt. a ‘caretaker Govt.’which expression does not figure in either of the Constitutions. It is only an expression of political expediency to make a distinction between the CM having mandate and the one who doesn’t have. What is the “alternative arrangement” available in the Constitution which the Governor referred to? The most commonly perceived arrangement that comes in to being is that Omar continues till new Chief Minister and his Council of Ministers are sworn-in. This is only possible if a coalition of parties materializes with the magic number of 44 MLAs. And if not, then what? The second “alternative arrangement” is the imposition of Governor Rule under section 92 of State Constitution.
And if none of these happen then what?The caretaker Govt. doesn’t necessarily come to an end on 19th January as the life of caretaker Govt. is till the “alternate arrangement” is made. Constitutionally, the existing arrangement can continue after the expiry of life of the existing Assembly i.e. 19th January 2015, in terms of section 37 (2) of State Constitution irrespective of Ministers being or not being elected to the new Assembly. It is the pith and substance of these constitutional provisions but it would be entirely the discretion of the Governor either to impose Governor Rule or allow the “caretaker Govt.” to continue if the present impasse continues beyond 19thJanuary, 2015unless Omar himselfdeclines to shoulder responsibility anymore as was done by his father Farooq Abdullah in 2002.
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