In an article published in The Indian Express, Supreme Court advocate Gopal Sankaranarayanan says that the Modi government had not renewed President’s rule in Jammu and Kashmir within the requisite deadline of 18 June 2019.
According to the piece, since President’s rule was not extended by 18 June, the proclamation of President’s rule should “cease to operate” as per the Constitution. This lapse in process then raises questions over the decisions taken by Parliament regarding the effective revoking of Article 370 and bifurcation of the state.
Responding to the article, the Home Ministry has claimed that the information in the piece is “absolutely incorrect”.
MHA Calls Article ‘Misinformation’, Sankaranarayanan Responds
In a tweet thread, the MHA further clarified the government’s position on the matter.
Speaking to The Quint, Sankaranarayanan responded to the Home Ministry’s tweets, “What the MHA has tweeted is a legal argument. So, where is the misinformation that they have claimed? Let them make that legal argument – in my view, that wouldn’t apply, that’s my legal position.”
So, what exactly is the constitutional gaffe made by the Centre, according to Sankaranarayanan?
Clause 4 of Article 356 in the Constitution states, “A Proclamation so approved shall, unless revoked, cease to operate on the expiration of a period of six months from the date of issue of the Proclamation.”
- Now, the Proclamation imposing President’s rule in Jammu and Kashmir had been issued by Ram Nath Kovind on 19 December 2018.
- On 3 January 2019, the Proclamation was approved by both Houses of Parliament.
- The piece then argues that as per law, the Proclamation was therefore going to be in effect for six months, from 19 December 2018 (not from 3 January 2019). Hence, unless extended by 18 June 2019, it would cease to be effective thereafter.
Sankaranarayanan also quotes the nine-judge SC bench in the S R Bommai case, which in 1994 had observed that the necessary consequence of such a lapse of the Proclamation would be that the “status quo ante revives”. The bench had also said that in such a situation, “the Legislative Assembly which may have been kept in suspended animation also springs back to life”.
Here is where it gets interesting. It appears that the Centre missed the deadline of 18 June because of a misunderstanding on when the cut-off date was.
Sankaranarayanan writes, “Imagining that the cut-off date was 2 July, resolutions were tabled to extend the Proclamation on 28 June in the Lok Sabha and 1 July in the Rajya Sabha, thereby purporting to renew the six-month period from 3 July. This, as Article 356(4) clearly shows, was impermissible, because the Proclamation had ceased to have effect on 18 June itself.”
He adds, “Neither the notifications by the President on 5 and 6 August 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.”
Will this alleged constitutional faux pas and lapse in process have any future bearing on the petitions in the Supreme Court challenging the abrogation of Article 370? The jury is out on that.
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