New Delhi: While government departments routinely respond to reports and articles in the media by clarifying the official position, the Union home ministry has gone one step further and demanded “action against all concerned” for an opinion piece in a national daily that it tendentiously labeled ‘misinformation’.

Writing in the Indian Express on September 4, lawyer Gopal Sankaranarayanan had questioned the legality of the process adopted by the Narendra Modi government in diluting Article 370 of the constitution which gave special status to Jammu and Kashmir. Sankaranayanan is representing one of the petitions challenging the dilution of Article 370 before the Supreme Court and his op-ed was presumably a preview of the arguments he will make before the constitution bench when the matter is taken up next month.

Journalists and advocates described the spokesperson’s response to the op-ed as the “new normal”, while also condemning the implied “threat and intimidation”.

Government’s ‘gaffe’?

In his piece, Sankaranarayanan contended that the process of ratification of the president’s proclamation of Central rule in the state was not followed properly. He wrote:

“As far as Jammu and Kashmir is concerned, 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. This was followed on January 3 by the approval of the houses of parliament. Notably, this approval gave the proclamation a life of six months with effect from December 19, 2018 (not from January 3, 2019). Therefore, if it were not extended before June 18, the proclamation in the solemn words of the constitution, would ‘cease to operate’.”

Arguing how there was possibly a lapse on the Centre’s part in getting the proclamation approved by parliament in time, he added: “Imagining that the cut-off date was July 2, resolutions were tabled to extend the proclamation on June 28 in the Lok Sabha and July 1 in the Rajya Sabha, thereby purporting to renew the six-month period from July 3. This, as Article 356(4) clearly shows, was impermissible, because the proclamation had ceased to have effect on June 18 itself. The only option now was a fresh proclamation to be issued by the president on the same terms as the earlier one — imagine your passport or driver’s licence, but without a grace period for renewal, thereby requiring you to apply afresh.”

Not so, says the MHA

In response, the Ministry of Home Affairs (MHA) wrote to the Indian Express claiming that Sankaranarayanan had presented an incorrect picture by citing provisions of the constitution pertaining to the imposition of president’s rule – i.e. Article 356 – that did not apply to Jammu and Kashmir because the amendments via which they were introduced were never extended to the state.

Clarifying that “the original provision of Article 356(4) was applicable to Jammu and Kashmir”, the MHA said:

“The original provisions under Article 356 allow it to exist for six months from the date of the second of the resolutions approving the proclamation [in the houses of parliament]. The subsequent changes to Article 356 (4) through the 42nd and 44th Constitutional amendments were not made applicable to Jammu and Kashmir. Therefore, the original provision of Article 356 (4) was applicable to Jammu and Kashmir.”

It added:

“[The] proclamation dated 19th December 2019 was approved by the Lok Sabha on 28th December 2018 and Rajya Sabha on 3rd January 2019. Therefore, the proclamation of the President’s rule was due to expire on 3 July 2019, ie six months from 3rd January 2019. Lok Sabha on 28/6/19 and Rajya Sabha on 1/7/19 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.”

While the MHA’s desire to clarify the factual position was unexceptionable and its response seen as well-reasoned, its demand for “action against all concerned” for what she termed “blatant misinformation” has evoked a strong response.

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

‘What more action beyond clarification?’

A senior journalist with the Indian Express who spoke to The Wire on background questioned the wisdom behind such a diktat. Noting that such directives have become the “new normal”, he said that when a newspaper has carried the government’s response to an opinion piece, what other “action” could it want.

The journalist said it is important to remember that the writer is “a senior advocate and one of the lawyers in the [Article 370] case”. He further said, “What action can a newspaper take against a senior advocate who has written a piece in a newspaper?”.

As for the MHA spokesperson’s language, the journalist said: “This is the language of everybody now, on every site. It is either abuse or shouting or screaming… They threaten ‘we will do this and that’. But journalists have to do their job,” he said.

Incidentally, the journalist pointed out that Sankaranarayanan had not opposed the removal of the special status. He wrote:

“While the integration of the land and its people is necessary, it is cardinal that the world’s most resplendent democracy heed constitutional process, because without it, we are back in the dark days of the Emergency.”

“So to that extent,” the journalist said, “the advocate had taken the government’s side. But he also made a [legal] argument, and that can only be contested.”

Asked for his response to the MHA’s ‘direction’, Sankaranarayanan told The Wire: “I have no comment. I wrote an article and that is the end of the matter as far as I am concerned. People may have their views, it may be harsh, it may be gentle, whatever it may be, everybody is entitled to their own views and that is what free speech is about.”

‘Core question not answered’

For other lawyers, the MHA’s clarification is not the final word on the question. “The Centre’s interpretation is that the original provisional of 356(4) was in force,” said Rahul Kumar, an advocate who practices in the Supreme Court. “If that is so, what was the status of Jammu and Kashmir from December 19, 2018 – when the presidential proclamation bringing the state under Central rule was issued – to January 3, 2019, when the Rajya Sabha resolution ratifying it was passed? No state or Union Territory can be in a state where there is no government. There was, in fact, a government, there was, in fact, a presidential order and if they are saying it was effective only from January 3, 2019, then that 15-day period from December 18 to January 3 was in excess of the six months provided under the constitution.”

“This has not been answered by the government,” said Kumar, criticising the MHA spokesperson for using language which is “clearly threatening and intimidating”.

The advocate added, “How can they suppress any opinion? Everyone in this country is entitled to their opinion. The opinion piece does not debate the dilution of Article 370. It did not incite anything against the government. Gopal simply pointed out a legal and constitutional lacuna. The matter can now only be settled by the Supreme Court, not the government.”

Kumar added that this “coercive attitude” and “use of threatening words” cannot be accepted. “They are not trying to threaten or intimidate, they have threatened and intimidated. This can even be termed as contempt because Gopal is a petitioner before the court,” he said.