An extremely messy situation in Jammu and Kashmir has been made messier – quite willfully. The villain of the piece in the latest act of an apparently endless drama in the state is Mr. Wali Mohammed Ittoo. Clearly anticipating the judgment of the acting chief justice in favour of Mr. GM Shah and his colleagues who have brought down the Farooq Abdullah ministry and formed their own, he made two surprise moves on Monday. He withdrew the reference he himself had made in his capacity as speaker of the assembly to the high court in respect of the 12 legislators who had withdrawn their support to the Farooq government on July 2 and then proceeded to announce that they were defectors in terms of the State Representation of the People’s Act as modified in 1979 in the wake of the enactment of an anti-defection legislation and therefore stood disqualified as legislators. It is not for us to determine whether it was within his competence to withdraw the reference, the acting chief justice of Jammu and Kashmir has held that it was not, and this view must hold so long as it is not reversed by the Supreme Court. Meanwhile there cannot be the slightest doubt that it was not within Mr. Ittoo’s jurisdiction to hold whether or not the legislators in question were defectors. His action was motivated by wholly partisan considerations and calculated to cause confusion.
The acting chief justice has taken the view that the relevant Section 24(G] of the act cannot apply to this case. In his opinion the section was enacted by the state legislature with individual cases, and not a vertical split in a party, in view. A layman’s reading of the act as it now stands would tend to confirm this judgment. It reads: “A person shall be disqualified from being a member of the legislative assembly or the legislative council of the state: (A) if he, having been elected as such member, voluntarily gives up his membership of the political party by which he was set up as a candidate in such election or of which he became a member after such elections, or (B) if he votes or abstains from voting in such house contrary to any direction or whip issued by such political party or by any person authorized by it in this behalf, without obtaining prior permission of such party or persons.” The legislators concerned contend that they have not left the National Conference; instead they claim to be the National Conference. In political terms, this claim is not easy to sustain since a vast majority of the MLAs elected on the party’s ticket continue to support Dr. Abdullah’s leadership. But it cannot be disputed that the National Conference has split and the law has to be interpreted as it is worded.
However, even if this proposition is disputed and one takes the view that Mr. Shah and his ministers are defectors in terms of the act, it is not for the speaker to determine that it is in fact so. For the act clearly provides that in the event of a defection, the leader of the party concerned writes to the speaker to ask for the member’s disqualification and if the representation is contested, as it was contested in this case, the speaker has no choice but to refer the issue to the chief justice. Indeed, Mr. Ittoo himself did so, as he was obliged under the act. In plain terms, he recognised that as speaker his prerogative was limited to referring the issue to the chief justice. Why he reversed his stand on Monday is not a matter of speculation. Circumstantial evidence is conclusive. The assembly was meeting the next day to give or deny a vote of confidence to Mr. Shah and Mr. Ittoo decided, either on his own or under pressure, to pre-empt the vote in the assembly. He failed, as he was bound to, especially in view of the judgment of the acting chief justice. But the whole sorry episode brings no credit to anyone.
Legality apart, however, the basic issues are political and they will have to be tackled as such one day. Meanwhile it necessary to try and disentangle them as far as it is possible. The governor acted in a ham-handed manner when he dismissed the Farooq ministry on July 2. He has sought to justify his ham-handed action on the ground that Dr. Abdullah was encouraging pro-Pakistan and pro-Khalistan activists: this argument has not been bought by the opposition. We can put all these issues aside for the time being in order to clear the ground for a non-partisan discussion on what should be done now. As things are today, the Shah ministry commands the support of the majority in the legislature. But there is reason to believe that this majority does not reflect the majority in the state. Twice, a number of state legislatures – in 1977 the Desai government and in 1980 by Mrs. Gandhi’s government – have been dismissed on this ground. We opposed the two Union governments’ actions. But Jammu and Kashmir is not just another state. There is a clear divide between Jammu and the Kashmir valley and a government in Srinagar which is not representative of the people in the valley cannot govern the state in a democratic manner. The Shah ministry is not representative of the people in the valley. So it is likely to remain unduly dependent on paramilitary forces. Whatever else such a government may or may not achieve, it cannot effectively combat separatist elements. On the contrary, it is likely to lend them legitimacy by virtue of its own unpopularity. This leaves the country just one choice – governor’s rule in the state. But Mrs. Gandhi cannot and will not take such a decision in the near future. She has to support Mr. Shah. For one thing, her own prestige is committed to his survival and for another, if he comes to fear that she is likely to let him down, he can make common cause with Dr. Abdullah. Anything is possible in Indian politics and Mr. Shah is after all Dr. Abdullah’s brother-in-law. She is stuck with him at least for the time being. But she must recognise that the country’s interests might be in jeopardy and as Prime Minister it is her first obligation to protect them.