The Ministry of Home Affairs on Wednesday issued a statement against English daily ‘The Indian Express’ for publishing incorrect information regarding the constitutionality of the abrogation of Article 370. Further, the Home Ministry has asked the concerned newspaper to take action against all concerned for this blatant misinformation.
The information given in this article is absolutely incorrect. The concerned newspaper has been directed to take action against all concerned for this blatant misinformation.@IndianExpress@PIB_India@HMOIndiahttps://t.co/uFjZC42CPA
— Spokesperson, Ministry of Home Affairs (@PIBHomeAffairs) September 4, 2019
Indian Express, one of the media outlets which have been aggressively pushing agenda-driven reportage about Kashmir following the revocation of special status to Jammu and Kashmir, had on Wednesday (September 4) published a ‘report‘ titled ‘Centre did not renew President’s rule in J&K in time. It is a gaffe that has had dire consequences‘ written by Gopal Shankarnarayanan, who claims to be a Supreme Court advocate.
In this article, the so-called Supreme Court advocate has written in length regarding the constitutionality of the Modi government’s decision to abrogate Article 370 and bifurcate the state into two Union territories – Ladakh, and Jammu and Kashmir. Shankarnarayanan, in his article, raises questions on the process adopted by the Modi government during the imposition of President’s Rule in December 2018.
With President Rule in Jammu and Kashmir as his premise, the writer questions the constitutionality of the abrogation as he claims that there are discrepancies in the imposition of President rule in Jammu and Kashmir under Article 356, which has resulted in Modi government’s moving away from constitutional process to revoke the special status.
Citing Article 356(4) of the Indian Constitution, which reads as “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”, the writer has stated the Modi government has created a ‘gaffe’ by not passing the resolutions in time after the expiry of six months from the date of issuance of the first proclamation.
According to the SC lawyer, 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. Later, this was followed by the approval of the Houses of Parliament on January 3.
The author claims that the approval gave the proclamation a life of six months with effect from December 19, 2018, and not from January 3, 2019, as per Article 356(4). Hence, if the first proclamation if not extended before June 18, the Proclamation in the solemn words of the Constitution, would “cease to operate”.
The author further argues that the Modi government tabled the resolutions to extend the Proclamation on June 28 in the Lok Sabha and July 1 in the Rajya Sabha, to renew the six-month period from July 3, which according to Article 356(4) was impermissible as the proclamation had ceased to have effect on June 18 itself.
Hence, according to the author, with reference to SR Bommai judgement, the necessary consequence of such a lapse of the proclamation would be that the “status quo ante revives” meaning that the state legislature which was dissolved earlier should have been reconstituted.
With such factually incorrect data as his premise, the Supreme Court lawyer went on to declare that the executive and the legislature proceeded to revoke special staus as if the state legislature in Jammu and Kashmir did not exist, singularly on the misapprehension that the proclamation was still in force. The consequence of this gaffe, as per Shankarnarayan, appears to be grave as gubernatorial privilege was stolen and the creation of new territories to be directly governed by the Centre has undermined the federal canon.
The author Suryanarayan who claims to be a Supreme Court lawyer, lectures regarding the constitutional morality, however, seems to have failed to comprehend facts. Responding to the propaganda article published in Indian Express, the Home Ministry in a detailed clarification has schooled the SC lawyer regarding the basic facts concerning Jammu and Kashmir and its relationship with Article 356(4) of Indian constitution.
According to the Home Ministry, President’s Rule was applied in Jammu and Kashmir under Article 356 on December 19, 2018. The original provisions under Article 356 allow the proclamation of President rule to exist for six months from the ‘date of the second of the resolutions approving the proclamation’.
J&K President’s Rule: A thread –
President’s Rule was applied under Article 356 on 19/12/18.
Original provisions under Art 356 allow it to exist for six months from the date of the ?????? of the resolutions approving the proclamation.
1/n
— Spokesperson, Ministry of Home Affairs (@PIBHomeAffairs) September 4, 2019
Most importantly, the existing provision, which was brought as an amendment to Article 356(4) during 42nd and 44th constitutional amendments were not made applicable to Jammu and Kashmir. Therefore, the original provision of article 356(4) applies to Jammu and Kashmir according to which the Proclamation dated December 19, 2018, was approved by Lok Sabha on December 28, 2018, and in Rajya Sabha on January 3, 2019.
Hence, the proclamation of the President’s Rule in Jammu and Kashmir was due to expire on 3rd July 3, 2019, six months from January 3, 2019, the date of approval of proclamation rather than on the date it was issued.
The Home Ministry officials confirmed that the Lok Sabha and Rajya Sabha on June 28, 2019, and July 1, 2019, respectively approved the continuance of the Proclamation of the President’s Rule for a further period of six more months beyond 3rd July 2019. Thus, this proclamation was within the provisions of Article 356 as applicable to Jammu and Kashmir.
