Why the SC Uttarakhand verdict raises bewildering questions

Saurav Datta | Updated on: 10 February 2017, 1:50 IST

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Uttarakhand is back in order. But the floor test & involvement of the SC has thrown up serious questions

Arun Jaitley accuses the judiciary of destroying legislative & executive powers. Is he justified?

Harish Rawat held his first cabinet meeting on Thursday after being reinstated as the chief minister of Uttarakhand. On Wednesday, President's Rule was revoked in the state after the Supreme Court declared the result of the floor test that was conducted in the state Legislative Assembly on 10 May.

The SC and the High Court of Uttarakhand held that the Centre's imposition of President's Rule on 27 March, 2016, was a "travesty of justice" and stood to imperil democracy and principles of federalism.

Read- Uttarakhand: Overjoyed Congress & Harish Rawat mull early elections

Soon after the apex court's order Union Finance Minister Arun Jaitley in the Rajya Sabha accused the judiciary of "destroying the edifice of the legislature and executive, step by step, brick by brick." He said there could soon be a day when the judiciary might usurp even the powers of deciding upon taxation -- a power, which not only in India but all over the world, is vested only in the legislature.

The minister's tirade could have been prompted by two reasons: One, he may be smarting from the benchslap the courts delivered while holding the imposition of President's Rule as illegal. After all, as is common knowledge by now, Jaitley played a crucial role in the Centre's hurried effort to take over control from the Rawat-led government.

Two, the legislature and its members have never taken too kindly to what they call the judiciary's "interference" in its affairs. They always say, with considerable indignation, that courts have absolutely no business in intruding onto the turf of the legislature, and "dictating" how it should go about its duties and functions.

And this is not the first time a legislature-judiciary conflict has arisen, especially when matters of conducting floor tests (trust votes) in State Legislative Assembles have been contested before the courts.

But then, how 'valid' or legitimate are Jaitley's accusations? Also, while laying down 12 elaborate rules regarding how the floor test in Uttarakhand was to be conducted, and then demanding a report, has the Supreme Court breached established constitutional principles and conventions of parliamentary procedure? There are no easy answers here, and legal experts remain divided in their opinion.

Judicial Innovation: intervention or interference ?

In its 6 May order, the Supreme Court issued a slew of directions regarding how the floor test was to be conducted. A couple of questions arise in this context:

1. Should the judiciary be monitoring legislative proceedings?

2. Should the Principal Secretary, Legislative and Parliamentary Affairs, who in Uttarakhand belongs to the District Judge cadre -- and is not a member of the legislature -- maintain vigilance over legislative proceedings?

According to Sanjay Hegde, Senior Advocate in the Supreme Court, both the bitterly warring sides -- Harish Rawat and the Government of India -- have no reason to cry foul as they agreed to have the court direct the floor test. He pointed out that the court had noted the consensus in its ruling.

It is also true that the Bench of Justices Dipak Misra and Shiv Kirti Singh was only following a precedent set by the Supreme Court: In 1998, in the Jagadambika Pal case, the court invoked its extraordinary jurisdiction under Article 142 of the Constitution (the power to do complete justice) and had to "innovate" and device measures so that legislative proceedings were not rigged. In 2005, while directing how the floor test in the Jharkhand Assembly should run, it ordered that proceedings be videographed and submitted to it.

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Technically speaking, a court is supposed consider and decide upon only the parties before it. In this case, Rawat and the Centre had conceded to the court deciding upon the trust vote, but a broader constitutional and political question remains unanswered: What happens to the other political parties and members of the legislative Assembly who were not parties before the court, but would nonetheless be effected by the floor test decision?

Jaitley says the judiciary is destroying the edifice of the legislature and executive.

Regarding the second question, the apex court had some pungent words to answer the legislators with. It said whatever measures it is taking are only because it, being the sentinel on the qui vive (guard) of the Constitution, could not allow democracy and constitutional norms to be "hollowed out" by individuals (Note: both the BJP and the Congress had traded allegations of horse-trading).

Hence, the court, terming the situation as "piquant", directed that it was incumbent to have a "neutral perceptionist to ensure absolute objectivity", directed that the principal secretary of the Legislative and Parliamentary Affairs should be present and see to it that no underhand means were being adopted.

During the course of the hearing, Senior Advocates Kapil Sibal and Dr. Rajeev Dhavan who were representing Chief Minister Rawat, vehemently objected to this, emphasising that the court's direction amounted to the judiciary usurping the legislature's power, and would lead to "judocracy" (that is, the judiciary 'ruling'/lording over democracy). Attorney General Mukul Rohatgi, representing the Centre, disputed this and finally his words prevailed.

Hegde doesn't see any violation of constitutional procedures or principles here. With the enactment of the Anti-Defection Act (included in the 10th Schedule of the Constitution), the Speaker of the House also functions as a 'tribunal', empowered to decide upon matters of disqualification of members. And this was occasioned by the Apex court's 1992 ruling in the Kihoto Hallohan case, which gave the courts a supervisory role in deciding upon the constitutionality of certain proceedings in the legislature, he explains.

Furthermore, he also states that unlike Britain (on the Westminster model of which our parliamentary is system is modelled), in India, Parliament does not enjoy supremacy- the Constitution (of which the judiciary is the sole interpreter) does.

The turn of events in Uttarakhand, and their judicial aftermath, and the subsequent allegations as levelled by Jaitley, leaves one in a peculiar dilemma. On one hand, the kind of political skullduggery which has almost become the norm, necessitates some sort of control and supervision, and only the judiciary is constitutionally empowered to do so. On the other, India's judges have often demonstrated both a partiality and predilection of exercising a 'supremacist' attitude- riding the high horse of 'judicial impartiality', and it is indeed perturbing. Especially since the framers of the constitution had clearly detailed a 'separation of powers'.

But then, when the Constitution was written, politics in India had not degenerated into a cesspool of corruption and Machiavellian tactics.

Therefore, conflicting questions shall remain, and the legislature-judiciary tussle will probably not be resolved anytime soon.

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First published: 12 May 2016, 6:20 IST