…intrusion operationalized in 1965 by sixth amendment of JK Constitution
With state proclaiming Governor’s rule as Omar Abdullah opted out, a grim reminder was served of state losing the prerogative to account for constitutional exigencies like failure to work out a coalition in a fractured mandate without reference to Delhi. In 1965, a pliant JK political executive collaborated by enacting sixth amendment of JK constitution, thus paving the way for implanting federal constitutional measures in exigencies. The exigencies apart from failure to put in a political executive to run the state machinery whatever the reason stand defined in Article 355 of the Indian constitution, ‘It shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the government of every State is carried on in accordance with the provisions of this Constitution’.
Pre-1965 JK head of the state–Sadar-i-Riyasat was supposed to be formally nominated by President, after getting elected by JK legislative body. He was free to operate in exigencies without reference to President of India. Sadar-i-Riyasat did act in 1953 by dismissing Sheikh Abdullah led political executive of his own accord without reference to President of India. With sixth amendment, the powers of JK Head of State were mandated to presidential reference. Sadar-i-Riyasat changed garb to Governor, and JK Prime Minister to Chief Minister This was an abject surrender, widening the role of President of India, by implication of the political executive of GOI, operating in the federal capital. The President in discharge of his constitutional functions stands advised by Prime Minster led Indian Cabinet.
To widen the President’s role by implication that of GOI political executive, sixth amendment of JK constitution was actualized on April, the 10th 1965 by a pliant JK political executive aided and abetted by the state legislature put in place by a highly questionable electoral process of unopposed returns and ballot tampering. Sixth amendment re-defining Sadar-i-Riyasat and Prime Minister of JK State reads, ‘In the Constitution of Jammu and Kashmir (herein after referred to as ‘the Constitution’) except in Parts XII and Parts XIII for the expressions “Governor” and “Chief Minister” shall respectively be substituted’. Parts XII and XIII relate to ‘AMENDMENT OF THE CONSTITUTION’ and ‘TRANSITIONAL PROVISIONS’.
Sixth amendment relates to section 2 sub-section (2) on ‘Definitions’ entailed in JK Constitutions, it reads, ‘Any reference in this Constitution to the Sadar-i-Riyasat shall, unless the context otherwise requires, be constructed as reference to the Governor’. It also relates to section 27, the amended version on appointment of the Governor reads, ‘The Governor shall be appointed by the President by warrant under his hand and seal’ whereas before the amendment, JK Head of State—Sadar-i-Riyasat was an elected office, as per Section (27) hence by implication primarily owing allegiance to constitution of JK State.
AG Noorani opines that sixth amendment was enacted in violation of Section 147 of JK constitution [A Constitutional History of Jammu and Kashmir-pub: Oxford University Press, 2011, page: 14]. Noorani says, “Section 147 makes itself immune to amendment” he adds, “It referred to Sadar-i-Riyasat and required his consent to constitutional amendments”. Section 147 relates to Part XII of JK Constitution. This Section implies a majority of not less than two thirds of total membership of Legislative Assembly for affecting constitutional amendment as well as assent of Sadar-i-Riyasat. Section 147 further notes, ‘Provided further that no Bill or amendment seeking to make any change in:-
(a) this section; or
(b) the provisions of sections 3 and 5; or
(c) the provisions of the Constitution of India as applicable in relation to the State;
shall be introduced in either House of the Legislature
It is for constitutional experts to opine whether changing the nomenclature of Sadar-i-Riyasat to Governor as well as change in provision of his elected status as per (section 27) affected a change in Section 147 (a). Noorani stresses on electability of Sadar-i-Riyasat being a norm in Section 147. Section (3) defines the ‘Relationship of the State with the Union of India’ and Section (5) defines, ‘Extent of Executive and Legislative Power of the state.
There is semblance of saving grace. As per the section (92) of JK Constitution, while the reference to President is mandatory in cases of breakdown of normal governance mechanism by elected political executive, the rule thus instituted is called ‘Governor’s Rule’ the stipulated period being six months in contrast to Indian States, where Presidential takeover is stipulated at the very outset, though ‘Governor’ exercises the authority in the name of ‘President’. ‘President’s Rule’ which could be norm following the stipulated six months in JK brings into play Article 356 and 357 of Indian constitution, as is the norm in Indian states. Sixth amendment paved the way for it. As per article 356, ‘President assumes all powers exercisable by Governor or anybody or authority in the State other than the Legislature of the State’ and, ‘declares that the power of the Legislature of the State shall be exercised by or under the authority of Parliament’. Article 357 is meant to operationalize article 356.
‘Ek Pahloo Yeh Bi Hai Kashmir Ki Tasveer Ka’ so said Hafiz Jalandhari decades back, Kashmir tale has so many shades, constitutional intrusions time and again is one such shade.